Parking Awareness Service (PAS) PCN

johjames

KeithP said:

johjames said:

KeithP said:

johjames said:

I received a Claim Form from the County Court Business Centre earlier today...

What is the Issue Date on your County Court Claim Form?

25/11/2021.

With a Claim Issue Date of 25th November, you have until Tuesday 14th December to file an Acknowledgment of Service but there is nothing to be gained by delaying it. 

To file an AoS, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an AoS in a timely manner, you have until 4pm on Wednesday 29th December 2021 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Thank you for your advice KeithP, it's very much appreciated.

johjames

AOS submitted. I'm now in the process of preparing the Defence and Witness statement which I'll post here when done, hopefully they may help someone, as you all have helped me.
I have a question, which I hope someone can assist me with. I submitted a SAR previously and I requested a copy of the 'contract' with the landowner, which Matthew at PAS refused to send, informing me that 'We are unable to disclose any details regarding the legal identity of the landowner as this would be a breach of Data Protection.' The Claim refers to a 'contract' being formed by the 'signs.' Because I have never been to the car park in question and because the photos which Matthew sent me of said signs are so terrible, I wouldn't know what they say. My question is, should I submit another SAR requesting a copy of the contract between the landowner and PAS? 

Jenni_D

You're not entitled to the contract under a SAR as it is not data pertaining to you. You are entitled to a copy of it as part of their WS, as your defence will put them to strict proof of them having a contractual right to manage parking at that location, to issue PCNs at that location, and to have the right to seek payment of said PCNs via court action in their own name.  

johjames

Jenni_D said:

You're not entitled to the contract under a SAR as it is not data pertaining to you. You are entitled to a copy of it as part of their WS, as your defence will put them to strict proof of them having a contractual right to manage parking at that location, to issue PCNs at that location, and to have the right to seek payment of said PCNs via court action in their own name.  

Thank you Jenni!

Fruitcake

You mentioned you will be writing your defence and WS. The WS comes much later in the process at the exhibits stage.
Your defence is 95% written for you in the sticky Announcements. You only need to compile your paragraphs 2 and 3, then show just those two paras to us.
This should explain the type of car park, and explain why you are not liable. They should also be writ in the third person, so you refer to yourself as the defendant. 

johjames

Fruitcake said:

You mentioned you will be writing your defence and WS. The WS comes much later in the process at the exhibits stage.
Your defence is 95% written for you in the sticky Announcements. You only need to compile your paragraphs 2 and 3, then show just those two paras to us.
This should explain the type of car park, and explain why you are not liable. They should also be writ in the third person, so you refer to yourself as the defendant. 

Thanks Fruitcake, I'm trying to stay on top of everything. I've never been to the car park, because I wasn't the driver.

Coupon-mad

OK so your point #2 will say that.

johjames

I have used the Defence Template, along with the incredibly helpful advice provided here over the course of this affair unfolding, to construct my defence. Thanks again to all who have helped.
Given that my defence turns on the fact that I was not the driver and PAS were non compliant with PoFA; along with their seeking a ridiculously inflated sum, then some of the content of the Defence Template - and I accept I may be wrong here and I welcome any advice in this regard - may not be relevant, for example because I have not seen any of the car park signs.
So here it is for critique. I have not included the paragraphs of the Template Defence which I have included verbatim, but I've highlighted in bold italics those parts which I have amended to reflect my situation as the not driver, or which I'm not sure I should leave in. For example I'm not sure Vine vs Waltham Forest is relevant.

1.      The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.  The Defendant denies each and every allegation set out in the particulars of claim.

The facts as known to the Defendant:

2. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all. Each and every allegation in the Particulars of Claim is denied.

3.     On the day the two alleged parking charges were issued, the xx/xx/xxxx, the Defendant was not the driver of the vehicle in question, registration xxxx xxx (the vehicle). On the xx/xx/xxxx, the Defendant spent the entire day at his home address, xxxxxxx, and its immediate surrounding environs.

4. The Defendant has never travelled, at any time, to the address to which the two alleged parking charges pertain, via any mode of transport, including on foot, or as a passenger. 

5.   The Defendant first became aware of the two alleged ‘parking charges,’ when he received two letters titled ‘Parking Charge Notice,’ from the Claimant on xx/xx/xxxx. 

6. There was no compliant Letter Before County Court Claim issued by the Claimant, under the Practice Direction, meaning the Defendant could not compile a Formal Response. The Letter of Claim dated xx/xx/xxxxx from the Claimant should have stated ‘a clear summary of the facts and the legal basis for the claim.’ However the Letter of Claim states no such legal basis for the claim. 

7. There is no such legal basis for the Claim, given that the Defendant was not the driver of the vehicle and the Claimant had waived their right to pursue the keeper legally, because they had not complied with the Protection of Freedoms Act 2012 (PoFA). 

8. The Claimant had also informed the Defendant in writing that both of these alleged Parking Charge Notices were ‘NonPOFA (sic),’ thereby acknowledging that they had no legal grounds upon which to pursue the keeper.

9. Under schedule 4, paragraph 4 of the PoFA, an operator, the Claimant, can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met, as stated in paragraphs 5, 6, 11 & 12.

10. The Claimant failed to abide by the conditions laid out in PoFA which state that the keeper must be served with a compliant notice to keeper in accordance with Paragraph 9, which stipulates a mandatory wording and timeline as set out below: 

9(4)The notice must be given by
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that
on which the specified period of parking ended.

11. The Claimant’s very first communication with the Defendant was the two alleged Parking Charge Notices dated xx/xx/xxx, in relation to the alleged parking contravention on the xx/xx/xxxx. Thus, it is evident that any notice to keeper was not issued within the necessary 14 day, relevant period which the PoFA legislation demands.

12. The Claimant also failed to meet the conditions demanded by PoFA which states that the notice to keeper must specify the relevant land on which the vehicle was parked, in accordance with Paragraph 8: 

(2)The notice must
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates. 

13. The two Parking Charge Notices did not specify the relevant land on which the vehicle was parked, because these sections of both documents were not readable in their entirety, due to the print of the address of the relevant land being printed over by another typeface, making them impossible to fully decipher. 

14. Because the Claimant failed to comply with the statutory requirements of the PoFA 2012, they consequently forfeited any right to hold the Defendant, as keeper, liable for any alleged charge. 

15. Because the Defendant was not the driver of the vehicle, then the contract to which the Claimant refers to in the Basis of Claim could not have been formed.

16. Because the Claimant had not complied with the demands of PoFA 2012 to establish keeper liability, then the contract to which the Claimant refers to in the Basis of Claim could not have been formed.

17. There is plentiful case law which establishes that non-compliance with PoFA 2012 discharges keeper liability, as set out within the statute itself and that there is no presumption that the keeper is the driver, despite the Claimant’s assertion to the contrary. The Claimant has wilfully disregarded this.

18. In VCS vs Quayle 04/05/2017, Deputy District Judge Gourley established that the Claimant, having not complied with the PoFA 2012 and having not sought to rely on PoFA as it had failed to comply withe the requirements set out within Schedule 4 of that Act, had to produce evidence to show that the Defendant was, on balance of probabilities, the driver. The claim was dismissed because the Claimant, akin to this this case, could not pursue the Defendant for breach of contract in the absence of them being able to provide any evidence that the Defendant was the driver at the time.

19. In Excel v Lamoureux 17/11/2016, District Judge Skalskyj-Reynolds references case law which says that the keeper is not the driver and there is no such assumption. District Judge Skalskyj-Reynolds references R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605 and states that ‘There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. It is trite law.’ In this same judgement, District Judge Skalsyj-Reynolds states that if the Claimant is not relying on PoFA 2012 [which the Claimant in this case has not complied with and they have expressly stated in writing to the Defendant that they are not] then they need to either assert that the Defendant is the driver in which case there has got to be evidence of it, or it [the Claimant] is asserting that he [the Defendant] is liable as the registered keeper in which case they must comply with the Protection of Freedoms Act 2012. In this case, the Claimant knows that they are unable to do the latter and they are also aware that they cannot do  the former due to their utter disregard for the need to comply PoFA .

20. There is no direct evidence produced by the Claimant that the defendant was the driver and there is no evidence for the court to infer that the defendant was. There is no case law to support the proposition that there is a presumption (rebuttable by the Defendant) that the keeper was the driver (a reverse burden of proof). EWHC 1605; CPS v AJH Films [2015] EWCA Civ 1453; and Elliott v Loake do not provide that there is a reasonable presumption that the registered keeper of a vehicle is the driver. This is trite law.

21. Because the Claimant has failed to meet the conditions of the PoFA 2012, they have never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity.

22. In Parking on Private Land Appeals’ (POPLA) ‘Annual Report of the Lead Adjudicator 2015’, on ‘Understanding Keeper Liability’, the expert opinion of Parking and Traffic Appeals Service (PATAS; now London Tribunals) and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, was that: ‘However keeper information is obtained, there is no ‘reasonable presumption’ 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. Any evidence in this regard may therefore be highly relevant.’

25.     Even if the Claimant had shown the global sum claimed in the largest font on clear and prominent signs - which is denied - they are attempting double recovery of the cost of their standard automated letter-chain.  It is denied that the Claimants have expended additional costs for the same letters that the Beavis case decision held were a justification for the (already increased from the discount) parking charge sum of £85.  

33.    Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of an onerous parking charge, would include:

(i)                 Spurling v Bradshaw [1956] 1 WLR 461 (the ‘red hand rule’ case) and

(ii)                Thornton v Shoe Lane Parking Ltd  [1970] EWCA Civ 2,

both leading authorities confirming that an unseen/hidden clause cannot be incorporated after a contract has been concluded; and

(iii)                 Vine v London Borough of Waltham Forest: CA 5 Apr 2000,

where the Court of Appeal held that it was unsurprising that the appellant did not see the sign ''in view of the absence of any notice on the wall opposite the southern parking space''.  In many cases where parking firm Claimants have cited Vine in their template witness statements, they have misled courts by quoting out of context from Roch LJ, whose words related to the Respondent’s losing case, and not from the ratio.  To pre-empt that, in fact Miss Vine won because it was held as a fact that she was not afforded a fair opportunity to learn of the terms by which she would be bound.

35.    In the alternative, the Claimant is also put to strict proof, by means of contemporaneous and unredacted evidence, of a chain of authority flowing from the landholder of the relevant land to the Claimant.  It is not accepted that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints.  There is no evidence that the freeholder authorises this Claimant to issue parking charges or what the land enforcement boundary and start/expiry dates are, nor whether this Claimant has standing to enforce such charges by means of civil litigation in their own name rather than a bare licence to act as an agent ‘on behalf of’ the landowner.

Coupon-mad

I like that, although there is repetition about the non-POFA point, so you might want to take a fresh look and try to make the point more concisely (...she says, as someone who can never use ten words when a hundred will do!).

Re signage: ALWAYS say the signs were not clear and no contract was formed.  A keeper who has never been there can still do that, but by saying something like:

'It is neither admitted nor denied that any breach of terms occurred because the Defendant has not seen any evidence of clear and prominent signage, nor of any breach.  The Claimant is put to strict proof.'

johjames

Coupon-mad said:

I like that, although there is repetition about the non-POFA point, so you might want to take a fresh look and try to make the point more concisely (...she says, as someone who can never use ten words when a hundred will do!).

Re signage: ALWAYS say the signs were not clear and no contract was formed.  A keeper who has never been there can still do that, but by saying something like:

'It is neither admitted nor denied that any breach of terms occurred because the Defendant has not seen any evidence of clear and prominent signage, nor of any breach.  The Claimant is put to strict proof.'

Thanks Coupon-Mad, you and I both when it comes to writing more, when less would be sufficient! Would you advise leaving Vine vs Waltham Forest and paragraph 35. out (both in bold), because I have never visited the site?
I'll try to distill the non-POFA point as per your advice.
 I forgot to add that PAS lied and said their NTK was non-PoFA because of the DVLA auditing them. The DVLA subsequently confirmed to me that no such audit was taking place at this time, although has subsequently, and even if it had been, it would not have caused PAS to be unable to issue a PoFA compliant NTK. Revised version to follow.