pcn to registered keeper

Pdmum

Have re-numbered my defence and added a few points here and there, hopefully to make more sense.

Does this look good enough to submit?
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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 !!!8216;Creditor!!!8217; 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."
A managing agent is not the landowner.

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.)
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.

3. 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.
Signage does not comply with the BPA Code of Practice. Including but not limited to the following:-
3.1) 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.


3.1)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 Claimant is put to strict proof of how the signage in darkness at night ( time of alleged breach).
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.)
3.2) Bearing the above in mind, there was categorically no contract established between the driver and the Claimant. 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 driver, there can have been no contract and the Claimant has no case.

4.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.


4.1 The Claimants states !!!8220; within 28 days of the notice!!!8221; which is an attempt to put right the wording shown on PCN which says !!!8220;If within 29 days!!!8221;.

Both of these statements do not comply with the strict wording required by POFA and would mean that the Claimant is claiming keeper liability too soon.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015: (I have attached a copy of the wording from the Popla Annual Report 2015 for your information):

Understanding keeper liability
!!!8220;There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no !!!8216;reasonable presumption!!!8217; in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988,a keeper sent a Schedule 4 notice has no legal obligation to name the driver.[...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

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.




5.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 on Claim.

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.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.
7. 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.


7.1) This Claimant uses ANPR camera systems to process data but fails to comply with the Information Commissioner's 'Data Protection Code of Practice for Surveillance Cameras and Personal Information'. This Code confirms that it applies to ANPR systems, and that the private sector is required to follow this code to meet its legal obligations as a data processor. Members of the British Parking Association AOS are required to comply fully with the DPA, as a pre-requisite of being able to use the DVLA KADOE system and in order to enforce parking charges on private land.
The Claimant's failures to comply include, but are not limited to:
a) Lack of an initial privacy impact assessment, and
b) Lack of an evaluation of proportionality and necessity, considering concepts that would impact upon fairness under the first data protection principle, and
c) Failure to regularly evaluate whether it was necessary and proportionate to continue using ANPR at all times/days across the site, as opposed to a less privacy-intrusive method of parking enforcement (such as 'light touch' enforcement only at busy times, or manning the car park with a warden in order to consider the needs of genuine shoppers and taking into account the prevailing conditions at the site on any given day), and
d) Failure to prominently inform a driver in large lettering on clear signage, of the purpose of the ANPR system and how the data would be used, and
e) Lack of the 'Privacy Notice' required to deliver mandatory information about an individual's right of subject access, under the Data Protection Act (DPA). At no point has the Defendant been advised by the Claimant how to apply for a Subject Access Request, what that is, nor informed of the legal right to obtain all relevant data held.

7.2) 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.


8. The sum claimed from the Defendant ( if proven) cannot be more than would have been claimed from the driver.
The Claimant is attempting to claim additional charges such as solicitors, court fee and legal costs . This is an attempt at double recovery.

The claim is based on an alleged contractual parking charge of £100. The amount claimed on the claim form is £235.00. This inflation of the considered amount is a gross abuse of process.

The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have indeed been incurred. Furthermore, legal costs cannot be recovered in the Small Claims Court and should be struck out as unrecoverable.
8.1) 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 ( if applicable) to be itemised.

9. To date the Claimant has provided documents which show 6 different reasons for the issue of the Parking Charge Notice.
Documents necessary for the Defendant to make a full defence, have to date, still not been 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!!!8217;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 added extra points with regard to DPA and ANPR.

Have also added extra points regarding Claimants costs.
Know its really busy and will be very grateful for any final comments before i submit.
Thank You

Pdmum

Will be very grateful if someone could look over my edited defence before i send.
Have added a few more points ,does this look ample now.
Thank You

KeithP

On 27th June I asked:

KeithP wrote: »

What is the Date of Issue on your Claim Form?

You responded:

Pdmum wrote: »

date of service 27th June, although postmark was 25th???

Not the answer to the question asked.


If you are right on the date of service, then you have until 4pm on Wednesday 25th July to file your Defence.

When you are happy with the content, your Defence should be filed via email as described here:

1) Print your Defence
2) Sign it
3) Scan the signed document back in and save it as a pdf.
4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
6) Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
7) Wait for the Directions Questionnaire and come back here.

Pdmum

Sorry Keith,
Date of service is 27th June but issue date on top of form is 23rd June. Completely missed that.
Does this mean i still have till 25th July to submit?

Does the defence look ok ?

KeithP

With a Claim Issue Date of 23rd June, the Date of Service is 28th June. Date of Service is five days after Date of Issue.

That in turn means that, having done the AoS in a timely manner, you have until 4pm on Thursday 26th July to file your Defence.

Pdmum

Thanks Keith, claim wasnt done through MCOL for some reason but assume i will get an acknowledgement of email anyway.
Thanks again

Pdmum

Just a final thought.... Alleged landowner contract has expired early. Should i make this point in my defence?

KeithP

Thank you for reminding me that the claim wasn't issued via MCOL.

Please check that your Defence should be filed with the County Court Business Centre before following the filing instructions I have provided.

Pdmum

Address i have on documents is PO BOX 527, SALFORD, M5 OBY.
Email address is [EMAIL="ccmcce-filing@justice.gov.uk"]ccmcce-filing@justice.gov.uk[/EMAIL].
Is it best to stick with the address on the documents i have?
I know the decision is ultimately mine, but would it be possible to comment on my final draft please, and also give thoughts on inclusion of the point i made about expired contract?
Thank you for all your help.