Parking Awareness Service (PAS) PCN

johjames

I've adapted Para. 13 of the template defence and will include this as follows, picking up on the point about possible unfair signage. Any thoughts as to whether this will do please?  

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. The Claimant’s signs may have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

Le_Kirk

Isn't that what the template defence states?  You already deny entering into a contract in paragraph 1.

johjames

I struggled to make the non-POFA point more concise, so unless people think that it might be ruinous, I've left it as is. I've added the following Paragraphs to which your feedback would be gladly received. Thanks again all:

9. The Claimant has deliberately lied to the Defendant, informing them in writing that ‘We have had multiple audits by the DVLA which have taken a lot of time and have caused delays in processing of PCNs. This is the truth and we are willing to explain this in court as this most definitely the case, which is why the PCN was not issued under POFA.’  

10. Correspondence received, in writing from the DVLA confirms that the Claimant’s assertion in 9. was flagrantly deceitful and that no such audit was undertaken at the time and that were such an audit to have taken place, which it wasn’t, that this would not have prevented the Claimant from abiding by the statutory time limit demanded by POFA. ‘The Agency has not undertaken any audits, during the period in question [xx/xx/xxxx to xx/xx/xxxx], on Parking Awareness Services Ltd. Also, and as advised previously, a DVLA audit would not  be  expected  to  delay  the  processing  of  requests  for  DVLA  data.  If  an audit  is being conducted, that should not affect the ability to request data from DVLA.’

35. 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. The Claimant’s signs may have vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

41.   The Defendant invites the court to find that this exaggerated claim is entirely without merit and  to dismiss the claim. The Defendant is a senior doctor. Having to deal with the Claimant’s meritless and vexatious claim has caused him considerable stress and loss of time. Having to attend Court, given that the claim, for the reasons described above, stands no reasonable prospect of success and is entirely without merit, would cause the Defendant to needlessly be unable to be with the elderly and vulnerable cohort of patients with whom he works. The Defendant respectfully appreciates the need to attend Court, however the vexatious, meritless nature of this claim, along with the unreliability of the Claimant and the fact that the weight of case law suggests that this claim has no realistic chance of success, means that the Claimant is idly wasting both the Court and the Defendant's time.

Coupon-mad

Don't say 'deliberately lied'.  That's a very serious allegation in court.  Say 'misled'. 

And a change here to the signage point:

Based on multiple reports and images the Defendant has seen from other motorists recently, the Claimant’s signs  typically have vague/hidden...

D_P_Dance

or perhaps "dilierately misled"

johjames

Coupon-mad said:

Don't say 'deliberately lied'.  That's a very serious allegation in court.  Say 'misled'. 

And a change here to the signage point:

Based on multiple reports and images the Defendant has seen from other motorists recently, the Claimant’s signs  typically have vague/hidden...

I've changed the 'deliberately lied' to 'deliberately misled' and the signage point paragraph now reads as follows, taking on board your suggestion, for which I'm grateful thanks, Coupon-Mad:

Based on multiple reports and images the Defendant has seen from other motorists recently, the Claimant’s signs  typically have vague/hidden...It is neither admitted nor denied that any breach of terms occurred. Based on multiple reports and images the Defendant has seen from other motorists recently, the Claimant’s signs  typically have vague/hidden vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA.  Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

Redx

The first few lines are repetitive , plus the first 2 should probably be deleted !

Proof read it and edit as necessary , especially so that it flows and makes sense

johjames

Redx said:

The first few lines are repetitive , plus the first 2 should probably be deleted !

Proof read it and edit as necessary , especially so that it flows and makes sense

Thanks Redx, noted. I've proof read the entire document again and edited it, as per your and Coupon-Mad's advice, I'm hopefully that it's less repetitive and flows more now, but please do let me know if there are more tweaks needed. Here's the edited version, minus the Template Defence paragraphs. Thanks as ever for all your help. Hopefully this might be useful to other non-drivers too:

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. 

3.     On the day when the two alleged parking charges were issued, the xx/xx/xx, the Defendant was not the driver of the vehicle in question, registration xxxx xx (the vehicle). On that day, the Defendant spent the entire day at his home address, xxxxxxxxx, xxxxxx xxx xxxx, 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 vehicle driver or 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/xxxx 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. The Claimant deliberately misled the Defendant, informing them in writing that ‘We have had multiple audits by the DVLA which have taken a lot of time and have caused delays in processing of PCNs. This is the truth and we are willing to explain this in court as this most definitely the case, which is why the PCN was not issued under POFA.’  

10. Correspondence received from the DVLA, by the Defendant, following a Subject Access Request submitted to the DVLA, confirms that the Claimant’s assertion in 9. was flagrantly deceitful and that no such audit was undertaken at this time and that were such an audit to have taken place, which it wasn’t, then this would not have prevented the Claimant from abiding by the statutory time limit of 14 days demanded by the PoFA. ‘The Agency [DVLA] has not undertaken any audits, during the period in question [xx/xx/xxxx to xx/xx/xxxx], on Parking Awareness Services Ltd. Also, and as advised previously, a DVLA audit would not be expected to  delay the processing of requests for DVLA data.  If an audit is being conducted, that should not affect the ability to request data from DVLA.’

11. 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.

12. 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.

13. The Claimant’s very first communication with the Defendant was the two alleged Parking Charge Notices dated xx/xx/xxxx, 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.

14. 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. 

15. 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. 

16. Because the Claimant failed to comply with the statutory requirements of the PoFA 2012, they have consequently forfeited any right to hold the Defendant, as keeper, liable for any alleged charge and therefore the contract to which the Claimant refers to in the Basis of Claim could not have been formed. 

17. 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.

18. There is plentiful case law which establishes that both non-compliance with the PoFA 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 misleading assertion to the contrary. The Claimant has wilfully disregarded such case law, thereby deliberately wasting both the Court and Claimant’s time.

19. In VCS vs Quayle C1DP0H0J; 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 the PoFA as it had failed to comply with 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.

20. In Excel v Lamoureux C3DP56Q5; 17/11/2016, District Judge Skalskyj-Reynolds references case law which says that the keeper is not the driver and that 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 the PoFA 2012 [which the Claimant in this case has not complied with and which 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 PoFA. 

21. 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 requriement to comply with the PoFA .

22. 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.

23. 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.

24. 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.’

34. It is neither admitted nor denied that any breach of terms occurred. Based on multiple reports and images the Defendant has seen from other motorists recently, the Claimant’s signs  typically have vague/hidden vague/hidden terms and a mix of small font, such that they would be considered incapable of binding any person reading them under common contract law, and would also be considered void pursuant to Sch2 of the CRA. The Claimant is put to strict proof. Consequently, it is the Defendant’s position that no contract to pay an onerous penalty was seen, known or agreed.

Coupon-mad

 vague/hidden vague/hidden terms 

So good, you said it twice!

1505grandad

"14. 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: "

Just checking  -  should this be "9"?  (8 refers to NtD)