Pcn small claim but no defence

Coupon-mad

Are claimants required to do a WS

Yes.

if the alleged contravention happened on the 2nd of October, then am I right in saying that the postal PCN should have been with me by 14 days after? In this case 16th Oct?

No, day 15, had to arrive by 17th.

nosferatu1001

Day 0 is day of incident, so day 14 is actually the 15th day. Maths

the NtK, if ther eis NO NtD, must be received within 14 days. 28 days after the NtK is deemed given (2 working days after posting first class) is when the keeper becomes liable (presuming everything else is sorted)

SophS

When printing evidence (e.g exhibits) is it completely necessary to print off whole documents, like the entire schedule 4 of POFA and POPLA annual report, all the CPR rules you quote and the entire reports of any case law quoted in defence/WS?

And then produce the lot x 3? One for me, one for the PPC and one for court?

If so this is running into hundreds and hundreds of printed pages

Coupon-mad

is it completely necessary to print off whole documents, like the entire schedule 4 of POFA and POPLA annual report, all the CPR rules you quote and the entire reports of any case law quoted in defence/WS?

No. Have the full version in YOUR bundle only. E.g. just file the relevant page of the POPLA Annual Report.

But transcripts of other cases should be in full, yes.

Obviously you do not need Beavis. Nor CPR rules!

SophS

Thank you Coupon-mad, I didn't actually know that you didn't have to provide 3 copies of the CPR rules you mention in defence/WS.

BWL have quoted a couple of CPR and a couple of cases, im just quoting back one, the Launchbury which is 20 pages long (sigh).

Coupon-mad

Ooh, Launchbury is long, but can you print double sided?

SophS

Here is the draft WS in full.
As ever, I'm grateful if anyone spots something that will do me no favours in court. Its a mix of feedback from this thread, a bit of lamilad's WS but mostly working off my original defence.

Unfortunately tomorrow (22nd May) I will be handing this in to the local court which will probably mean no time for feedback from you guys. The hearing is 6th June.
The 23rd is the last day of the 14 day period before hearing to so this will also be posted 1st class on the 22nd to BWL too.

I have followed Coupon-mad suggestion not to include the various CPR's as exhibits. Nor have I included whatever BWL sent me to the exhibits, as I assume they will have provided the court with them already?

Not entirely sure of para 27 onwards but here goes...


IN THE COUNTY COURT - Claim No: xxxxxx


Between Vehicle Control Services Ltd (Claimant)

-and-

me (Defendant)

_____________________________________

WITNESS STATEMENT
_____________________________________


I xxxx of xxxxxxxx road am the defendant in this case.

1. I am a litigant in person, with no experience of Court procedures. If I do not set out documents in the way that the Claimant may do, I trust the Court will excuse my inexperience. In this Witness statement, the facts and matters stated are true and within my own knowledge, except where indicated otherwise.

2. I assert I am not liable to the claimant for the sum claimed, or any amount and this is my Witness Statement in support of my defence as already filed.

3. Whilst I was the Registered Keeper of the vehicle concerned, there is no evidence of the driver and as this event has been resurrected from nearly three years ago, it is impossible to expect a keeper to recall who might have been driving.

4. The Defendant denies being the driver at the time of the alleged contravention, and therefore puts Vehicle Control Services to strict proof that any contract can exist between the Claimant and the defendant.

5. The following #numbered paragraphs refer to correspondence received from the Claimant dated 27th March 2018, in response to my defence statement.

6. Re #4, the claimant states that they are engaged by the landowner of the car park to manage and enforce parking conditions, to (a) issue PCN!!!8217;s and (b) bring proceedings in their name.

7. Re # 7.9 In an attempt to validate this claim, they have submitted a copy of a contract (Exhibit 1) between themselves and Landowner of the car park in question.

8. The contract is dated 28th May 2012 and states is for a fixed period of !!!8220;3 months!!!8221; from the aforementioned date. No other contract proving VCS has authority to operate, manage or enforce parking conditions were provided.

9. The alleged parking contravention occurred on the 2nd October 2015 - over three years from the expiry of the contract.

10. It is therefore rejected that VCS has the authority from the landowner sufficient to establish them as the !!!8220;creditor!!!8221; within the meaning of the Schedule 4: 2(1) (b) Protection Of Freedoms Act (2012) (POFA), nor establish them as a person who is able to recover parking charges, as laid out by the Claimants Trade Association Code of Practice B1.1. (Exhibit 2 and 3)

11. In light of there being no valid contract or agreement between VCS and the Landowners which was argued in paragraph 8 of my defence, the defendant asks the court to dismiss this case as having no rights to bring the action regarding this claim and any claims of keeper liability from #3 onwards are ultra vires.

12. Furthermore as laid out in the defence, the claimant has failed to comply with Civil Procedure Rules Practice Direction 16 7.3(1), which state that a copy of the contract or documents constituting the agreement should be attached to or served with the Particulars of Claim (POC). It was not.

13. Re #7.1 The claimant states that the POC was in compliance with Practice Direction 7E 5.2 (a) and 5.2A. Neither claims are true.

14. Practice Direction 7E 5.2 states that Detailed particulars of claim must (a) !!!8220;state that detailed particulars of claim will follow!!!8221; - which can clearly be seen does not, no further details of POC were forthcoming. Furthermore, there is no such permission within CPR rules to submit inadequate particulars.

15. Re #7.2 The claimant seeks to apportion blame to a keeper for not naming the driver and goes on to imply that due to !!!8220;law of agency!!!8221; the driver had the authority on behalf of the keeper to enter into contracts and quoted case Combined Parking Solutions Ltd v AJH Films Ltd (2015) EWCA in support of this assertion.

16. However, Launchbury v Morgans (1972) UK House of Lords, held that in order to fix liability for the negligence of the driver of a motor car on the owner of the vehicle, it must be shown that the driver was using it for the owner's purposes under a delegation of task or duty. (Exhibit 4)

17. No such relationship or agreement existed between the driver and the keeper and nothing in law permits that assumption. In particular, it is not pleaded. I, therefore, seek to limit this case to the particulars pleaded.

18. Furthermore, the arguments set out in paragraph 14 are irrelevant and unmeritorious as they concern a company relationship with an employee in a company vehicle in the course of his employment.

19. I assert that the claimant has no direct contract with the defendant permitting liability to transfer to the keeper in the absence of a driver being identified and there is nothing within the POFA, criminal or civil law that permits anyone to make presumptions as to the driver.

20. Indeed this is supported by Barrister and parking law expert Henry Greenslade who stated in the POPLA Annual Report 2015 (Exhibit 5) that there is no presumption in law that a keeper was the driver and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies.

21. Despite this, the claimant argues that I failed to provide the name and address of the driver within 28 days from the date of the PCN and therefore will hold me liable for the charges.

22. I submit that POFA only permits transfer of liability under strictly controlled circumstances under Schedule 4 (Exhibit 6).

23. No Notice to Keeper was received from the Claimant and the Claimant, therefore, has not complied with the relevant statutory requirements under Schedule 4 of the Protection of Freedoms Act 2012. In absence of such notices, there can be no cause of action.

24. Re #7.10 the claimant also seeks to recover additional costs from the original amount set out in the POC from £100 to £245.42 which appears to be an attempt at double recovery and which is specifically disallowed under Section 4 (5) of the POFA (Exhibit 7).

25. Furthermore, CPR 27.14 (2) (a) state that the court may not order a party to pay a sum to another party in respect of that other party!!!8217;s costs, fees and expenses including those relating to an appeal, except the fixed costs attributable to issuing the claim.

26. Indeed, the photo!!!8217;s provided by the claimant of the car park signs
are simply unreadable and hence fail to show the terms relating to their additional charges.

27. The Claimant is put to strict proof that these costs were incurred.

28. Notwithstanding, the defendant denies that the driver would have agreed to pay the original demand of £100 of the contract had the terms been properly displayed and accessible.

29. The correspondence mentioned in paragraph 5 above is a farrago of pasted together cases, in parts direct response to the defence and in others stating what will happen if proceeding are issued. No part of the correspondence alluded to it being a witness statement for the Claimant and it addresses issues that form no point of their pleaded case.

30. The court is invited to debar the claimant from relying on them in this case and to dismiss the claim entirely.

I believe the facts stated in this Defence Statement are true.




Name

Signed.

Date.

SophS

I now have a copy of the original PCN. I’ve not had this the whole time so I’ve been working blind, however, BWL have included it in their WS which came in the post this afternoon.

I want to check your opinion if you believe the PPC to be in compliance with Sch4 POFA with these following dates / time frames.

Date of Contravention: 2nd Oct 2015 (a Friday).
Issue Date of Notice: 16th Oct 2015 (also a Friday).

If date of contravention is day Zero and day 1 was the 3rd if Oct then day 14 is 16th Oct.

Assuming it was sent 1st class on the date of issue - and it’s considered delivered two working days after sending, then the earliest it would have reached the keeper would be Tuesday 20th Oct - which is 18 days after date of contravention. Am I right in assuming this?

And following that - it’s outside the 14 day POFA guideline?

Coupon-mad

Yes and yes, you are right, get that in your WS if you haven't taken it to the court yet!

SophS

Hi Coupon mad.

I got their WS on way out to court to hand mine in unfortunately. However throughout my defence & witness statement the driver was never named and I continued to argue the no keeper liability angle....and non compliance with PoFA but not due to PCN dates, only due to never having the PCN/NTD/NTK.

I just hope that I get a fair judge on the day that will allow this.

The 1st PCN and subsequent Final Reminder Notice they included in their WS has no mention of pursuing keeper under PoFA (which I assumed there would be).

This makes me believe they are going to say in court that they are not relying on PoFA.

If they do this....can I say they must then pursue the driver who im not obliged to name?