pcn to registered keeper

Coupon-mad

Pdmum wrote: »

Completed my AOS by email, as claim not an online claim.
Preparing my defence, is it necesary to include POPLA discrepencies at this stage? and should i reply to the points on claim in turn?
Thanks in advance

Yes and yes - show us your draft defence please, after reading lots here first!

Pdmum

Copy of my first attempt,
Any comments gratefully received


IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

xxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE STATEMENT
I am the Registered keeper of the vehicle in question. I was neither driver or passenger in the vehicle at the time of the alleged incident.
I deny any liability to the claimant for the sum claimed or any other amount for the following reasons:-

1.The Claimants contractual authority to operate in the car park in which the alleged incident occurred has not been proven as required by the Claimants Trade Association's Code of Practice B1.1 which states:

"If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges."

1.1) In order to issue parking charges and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. It is believed XXX does not hold a legitimate contract at this car park.
1.2) The copy of contract provided under the Pre-action Protocol is heavily redacted,so cannot prove who signed it and none of the redacted signatures been witnessed.
1.3) The handwritten date supercedes the date the claimant states the contract started and there is a four digit handwritten number on the front of the contract with no explanation to what this represents.
1.4) Parts 2,3 and 4 of the contract are missing and Parts 10, 11, 13, 14, 16 & 17 are blank.



As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. Furthermore, no evidence of such authority has been supplied by the Claimant, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant. (This has been requested on 2 occasions.)
A Managing Agent is not the Landowner.
2. I am the defendant and the Registered Keeper of the vehicle in question. I am not the driver and have never driven this vehicle .There was no contract formed with the claimant by either the driver or the Defendant.
2.1) ) It is denied that there was a contract made between the Claimant and the driver through signage.
This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free.
2.2)BPA's Code of Practice (18.3) states:

"Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand."
The signs at this site are very inconspicuous set against a dramatic backdrop of graffiti. The font size used is too small and impossible to read in daylight let alone at night during the time of the alleged breach.


2.3)BPA's Code of Practice (Appendix states:

"Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material."
The Car Park is not well lit at night and there is no direct lighting to the signs.
When arriving at the car park in which the alleged incident occurred it is impossible to see and read, let alone understand, the terms and conditions being imposed. Therefore, the driver did not have a fair opportunity to read about any terms and conditions involving this charge.
Images provided by the claimant are not relevant to the alleged breach. (Relevant images have been requested on two occasions.)
2.4) Bearing the above in mind, there was categorically no contract established between the driver and XXX. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. In the absence of any proof of adequate signage that contractually bound the Defendant, there can have been no contract and the Claimant has no case.
3. PCN sent to Defendant is not fully compliant with the Protection of Freedom Act 2012 and therefore no keeper liability can be established:-

Sch 4 Para9(2)(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given-

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.

3.1 The Claimants states “ within 28 days of the notice” which is an attempt to put right the wording shown on PCN which says “If within 29 days”.
Both of these statements do not comply with the strict wording required by POFA.
The vital matter of full compliance was confirmed by parking law expert barrister Henry Greenslade in 2015.

The Defendant has not named the driver, and it cannot be assumed by the Claimant that the Defendant is the driver.
I put the claimant to strict proof that the Defendant is personally liable for this claim.

4.PCN issued to Defendant stated reason as Failure to Pay for the Duration of Stay. Duration was recorded as being 2 hours and 18 minutes.
4.1Defendant appealed as payment had been made. The appeal was rejected on the basis of The vehicle overstayed the PAID parking period.
4.2Defendant appealed to POPLA and was rejected.
A complaint was made to POPLA on the basis of a procedural error as comments to the claimants evidence had not been rebutted even though they had acknowledged receipt of said rebuttal. It was mentioned that the application of the BPA Code of Practice and relevant law should not be open to interpretation by an POPLA assessor.
Both POPLA and the Claimant have been named in Parliamentry debates about Parking ( code of practice) Bill . My local MP has shown his full support.

Terms of Contract
5. (f) Parking Period commences 5 minutes after entry.
7.Claimant states here and twice in section 4 that there was an 18 minute overstay.
Letter before Claim and POPLA rejection both state 16 minute overstay.

7.1 Taking 5(f) into account the maximum overstay would have to be 13 minutes.
This is more than covered by the 2 Grace Periods as set out in the BPA Code of Practice which states a compulsory 10 minutes at the start of parking and a minimum 10 minutes at the end of parking.
However the terms of Contract At 5 (f) have not been applied so the Contract is invalid.

Performance of Contract.
8. The claimant knows that payment was made and the working order of the parking meters in relation to other users is irrelevant to the claim.
8.1 The Defendant puts the claimant to strict proof of how the parking meters are synchronised with the ANPR cameras and also proof of the risk impact assessment before they applied to the DVLA for keeper details and issuing the PCN.

10, 11 and 12
The Claimant wrote on xxxxx which was sent as a Letter before Claim. The parking overstay in this instance was quoted as 16 minutes. A duplicate copy of Popla evidence was provided as
RELEVANT DOCUMENTS.
It was stated that “This is not purported to be an exhaustive list of documents relevant to the Debt”
The Defendants response on xxxxxx requested all documents relevant to alleged debt.
SAR was requested.
Claimants response on xxxxxx asked for a £10.00 fee for SAR .
Documents requested still not provided.
2nd SAR requested as Defendant was led to believe that this was free and felt that the Claimants lack of transparency in this process required more information.
Response from Claimant considered SAR request to be manifestly unfounded and excessive but were prepared to now respond for a Fee of £30.00.

The Defendant has made a complaint to the ICO .

To date the Defendant has still not received all of the documents requested in reference to this Claim.
The sum claimed from the Defendant ( if proven) cannot be more than would have been claimed from the driver.
Strict proof is required of both admin costs and Legal representatives costs. The Legal representative is employed by the Claimant and is remunerated. Admin costs to be itemised.

In Summary:-
PCN, POPLA Evidence from Claimant. LBC Documents and The Claim state:-
1. Overstay of 18 minutes
2. Overstay of 16 minutes
3. Failure to enter the full, correct vehicle registration details at the payment terminal so PCN issued.
4. Vehicle was parked for 4 hour and 21 minutes, payment made for 4 hours , PCN issued.
Documents requested twice from Claimant still not provided.
In view of the above conflicting information and the lack of transparency in pursuing this claim,
The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

8) In the event the claim progresses, then as an unrepresented litigant in person, the Defendant reserves the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

I believe the facts contained in this Defence are true.

Registered Keeper/Defendant

Coupon-mad

DEFENCE STATEMENT

should be

DEFENCE

Typo below - should be 'supersedes' but do you mean 'precedes'?

1.3) The handwritten date supercedes

And these parts below would be more at home later in your WS, as it's commentary about what you did when, and how unreasonable they were, rather than a defence to the claim, so I'd remove these two sections:

4.PCN issued to Defendant stated reason as Failure to Pay for the Duration of Stay. Duration was recorded as being 2 hours and 18 minutes.
4.1Defendant appealed as payment had been made. The appeal was rejected on the basis of The vehicle overstayed the PAID parking period.
4.2Defendant appealed to POPLA and was rejected.
A complaint was made to POPLA on the basis of a procedural error as comments to the claimants evidence had not been rebutted even though they had acknowledged receipt of said rebuttal. It was mentioned that the application of the BPA Code of Practice and relevant law should not be open to interpretation by an POPLA assessor.
Both POPLA and the Claimant have been named in Parliamentry debates about Parking ( code of practice) Bill . My local MP has shown his full support.

10, 11 and 12
The Claimant wrote on xxxxx which was sent as a Letter before Claim. The parking overstay in this instance was quoted as 16 minutes. A duplicate copy of Popla evidence was provided as
RELEVANT DOCUMENTS.
It was stated that 'This is not purported to be an exhaustive list of documents relevant to the Debt'
The Defendants response on xxxxxx requested all documents relevant to alleged debt.
SAR was requested.
Claimants response on xxxxxx asked for a £10.00 fee for SAR .
Documents requested still not provided.
2nd SAR requested as Defendant was led to believe that this was free and felt that the Claimants lack of transparency in this process required more information.
Response from Claimant considered SAR request to be manifestly unfounded and excessive but were prepared to now respond for a Fee of £30.00.

The Defendant has made a complaint to the ICO .

Pdmum

Thank you Coupon-mad, yes should be precedes. Will tweak and re-post.

Pdmum

Have (i hope) corrected spelling and tweaked my defence. Have added extra bits in place of previous points 4 and 10,11, and 12. This is purely to correspond with the numbered points on the claim. Is this good to go now. i understand i can give more detail in witness statement.

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

xxxxxxxxxx (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
I am the Registered keeper of the vehicle in question. I was neither driver or passenger in the vehicle at the time of the alleged incident.
I deny any liability to the claimant for the sum claimed or any other amount for the following reasons:-

1.The Claimants contractual authority to operate in the car park in which the alleged incident occurred has not been proven as required by the Claimants Trade Association's Code of Practice B1.1 which states:

"If you operate parking management activities on land which is not owned by you, you must supply us with written authority from the land owner sufficient to establish you as the ‘Creditor’ within the meaning of the Protection of Freedoms Act 2012 (where applicable) and in any event to establish you as a person who is able to recover parking charges."

1.1) In order to issue parking charges and to pursue unpaid charges via litigation, the Claimant is required to have the written authority of the landowner, on whose behalf they are acting as an agent. It is believed XXX does not hold a legitimate contract at this car park.
1.2) The copy of contract provided under the Pre-action Protocol is heavily redacted,so cannot prove who signed it and none of the redacted signatures been witnessed.
1.3) The handwritten date precedes the date the claimant states the contract started and there is a four digit handwritten number on the front of the contract with no explanation to what this represents.
1.4) Parts 2,3 and 4 of the contract are missing and Parts 10, 11, 13, 14, 16 & 17 are blank.

As an agent, the Claimant has no legal right to bring such a claim in their name which should be in the name of the landowner. Furthermore, no evidence of such authority has been supplied by the Claimant, and the Claimant is put to strict proof of the same, in the form of an unreacted and contemporaneous contract, or chain of authority, from the landowner to the Claimant.
(This has been requested on 2 occasions.)
A Managing Agent is not the Landowner.
2. I am the defendant and the Registered Keeper of the vehicle in question. I am not the driver and have never driven this vehicle .There was no contract formed with the claimant by either the driver or the Defendant.
2.1) It is denied that there was a contract made between the Claimant and the driver through signage.
This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free.
2.2)BPA's Code of Practice (18.3) states:

"Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand."
The signs at this site are very inconspicuous set against a dramatic backdrop of graffiti. The font size used is too small and impossible to read in daylight let alone at night during the time of the alleged breach.


2.3)BPA's Code of Practice (Appendix states:

"Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material."
The Car Park is not well lit at night and there is no direct lighting to the signs.
When arriving at the car park in which the alleged incident occurred it is impossible to see and read, let alone understand, the terms and conditions being imposed. Therefore, the driver did not have a fair opportunity to read about any terms and conditions involving this charge.
Images provided by the claimant are not relevant to the alleged breach.
(Relevant images have been requested on two occasions.)
2.4) Bearing the above in mind, there was categorically no contract established between the driver and XXX. To draw on the basic guidelines of contract law for a contract to be effective the offer must be communicated. Therefore, there can be no acceptance of an agreement if the other person is without knowledge of the offer. In the absence of any proof of adequate signage that contractually bound the Defendant, there can have been no contract and the Claimant has no case.

3. PCN sent to Defendant is not fully compliant with the Protection of Freedom Act 2012 and therefore no keeper liability can be established:-
Sch 4 Para9(2)(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given:-

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.


3.1 The Claimants states “ within 28 days of the notice” which is an attempt to put right the wording shown on PCN which says “If within 29 days”.

Both of these statements do not comply with the strict wording required by POFA.

The vital matter of full compliance was confirmed by parking law expert barrister Henry Greenslade in 2015.

The Defendant has not named the driver, and it cannot be assumed by the Claimant that the Defendant is the driver.
I put the claimant to strict proof that the Defendant is personally liable for this claim.




4.The Claimant is assuming the Defendant is the driver in this statement. The Defendant is the registered keeper and the alleged overstay cannot have been 18 minutes.

Terms of Contract
5 (f) States Parking Period commences 5 minutes after entry.

Claimant states here and twice in section 4 that there was an 18 minute overstay.
Letter before Claim and POPLA rejection both state 16 minute overstay.

5.1 Taking 5(f) into account the maximum overstay would have to be 13 minutes.

This is more than covered by the 2 Grace Periods as set out in the BPA Code of Practice which states a compulsory 10 minutes at the start of parking and a minimum 10 minutes at the end of parking.
However the terms of Contract At 5 (f) have not been applied so the Contract is invalid.

6.Signage does not comply with the BPA Code of Practice.

7.Claimant is assuming Defendant is the driver. The Defendant is the registered keeper.
There is no contract with the Defendant so there is no breach of contract.

Performance of Contract.
8. The claimant knows that payment was made and the working order of the parking meters in relation to other users is irrelevant to the claim.
8.1 The Defendant puts the claimant to strict proof of how the parking meters are synchronised with the ANPR cameras and also proof of the risk impact assessment before they applied to the DVLA for keeper details and issuing the PCN.

9,10, 11 and 12

To date the Defendant has still not received all of the documents requested in reference to this Claim.
The sum claimed from the Defendant ( if proven) cannot be more than would have been claimed from the driver.
Strict proof is required of both admin costs and Legal representatives costs.
The Legal representative is employed by the Claimant and is remunerated.
Admin costs to be itemised.

In Summary:-

PCN, POPLA Evidence from Claimant. LBC Documents and The Claim state:-

1. Overstay of 18 minutes
2. Overstay of 16 minutes
3. Failure to enter the full, correct vehicle registration details at the payment terminal so PCN issued.
4. Vehicle was parked for 4 hour and 21 minutes, payment made for 4 hours , PCN issued.



Documents requested twice from Claimant still not provided.

In view of the above conflicting information and the lack of transparency in pursuing this claim,
The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

In the event the claim progresses, then as an unrepresented litigant in person, the Defendant reserves the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

I believe the facts contained in this Defence are true.

Registered Keeper/Defendant

Pdmum

Have also added points 6 & 7 to above (i hope) final draft.
Would anyone mind looking over before i send. Thank You

Coupon-mad

I'm confused by your numbering, what's

9,10, 11 and 12

doing there, is it because the forum was chopping off the numbers from your real version?

I wouldn't have the 'in summary' bit which then repeats 1,2,3,4 again!

Pdmum

Points 9,10,11 and 12 of the claim are the paperchase by the PC and my attempt to replace what i had removed. My thinking was that i should respond to each point in turn.

Would it just be better to remove the numbers and leave the text.


So points 7 and 8 of the claim both state Defendant as driver.

This has already been addressed at point 7 "Claimant is assuming Defendant is the driver. The Defendant is the registered keeper."

Is it necessary to repeat this at point 8.
Removing In Summary and numbers but should i leave in text


Overstay of 18 minutes
Overstay of 16 minutes
Failure to enter the full, correct vehicle registration details at the payment terminal so PCN issued.
Vehicle was parked for 4 hour and 21 minutes, payment made for 4 hours , PCN issued.



Documents requested twice from Claimant still not provided.

In view of the above conflicting information and the lack of transparency in pursuing this claim,
The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.


Does this look almost good to go?

Coupon-mad

Every paragraph needs a number.

And I think you need to explain things a bit better, as it isn't clear to me what you are saying here:

Overstay of 18 minutes
Overstay of 16 minutes
Failure to enter the full, correct vehicle registration details at the payment terminal so PCN issued.
Vehicle was parked for 4 hour and 21 minutes, payment made for 4 hours , PCN issued.

What are you trying to say, that they've stated 3 different timings? If so, say that.

Pdmum

There are posters on here that can advise on you specific details. General advise is to read the Newbies thread and start a thread specific to your circumstances.

Good Luck!