HELP! BW Legal / Parking Awareness Court Claim

nosferatu1001

Yes, of course you can say that. You can also state you visited the site at a later date and took photos. That is of course entirely reasonable

Buit you cannto say you were not the driver, unless you were not the driver. You CANNOT lie. Even if you get no specific sanction for it, any court is likely to dismiss you as being credible and find against you. And that stateemnt, taken at face value - which is of course the point of a statement! - is that you were lying. It was not possible to both be the driver and NOT be the driver. So, decide how you are giong to defend this.

If it was just a typo - well, clearly you need to correct it etiher way.

What does your review of POST 2 of the newbies thread tell you? Youre missing a couple other defence ideas, such as querying standing.

robertow88

Thank you for that clarification Nos I will keep that in mind when writting the defence.

To be honest I read until my eyes where burning late last night but I made quite a lot of notes so I will look over them all and workout a defence from that and post it on here. Post 2 helped loads and I was searching other BW cases to get some ideas of similar arguments.

I am just totally confused as to whether go at it saying I was the driver or not - is there any plus or minuses to doing it?

robertow88

Hi All here is a draft defence which I have used most of someone elses I found here as I am out of depth on this - Please could I get some advice - I have put some questions below the defence.

IN THE COUNTY COURT

CLAIM No: xxxxxxxxxx

BETWEEN:

PARKING AWARENESS SERVICES (Claimant)

-and-

xxxxxxxxxxxx (Defendant)

________________________________________
DEFENCE
________________________________________

1. It is admitted that the Defendant was the authorised registered keeper of the vehicle in question at the time of the alleged incident.

2. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at xxxx on 0xx16.

3. Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £100 'Parking Charge Notice ('PCN')'.

4. In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60 contractual costs pursuant to PCN Terms and conditions which the Defendant submits have not actually been incurred by the Claimant.

5. In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £xxxxxx This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

6. The Particulars of Claim assume that the Defendant was the registered keeper and/or the driver of the vehicle(s) when the alleged contravention took place. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

7. Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

8. Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them.

9. The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

10. The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

12. In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Name
Signature
Date

I wrapped it in quotes to make it easier

My questions are:
1) Should I be going down the route of the driver hasn't been identified? - The Particulars say "THe PCN Relates to <Vehicle Make> under registration <VRN> does that mean they have to identify the driver?

2) Should I be mentioning the 8% per annum statutory interest charge they have added to the costs?

3) Do i mention about grace periods? or does that not apply when it's "not a pre-authorised vehicle" claim?

Thank you in advance

System

My questions are:

1) Should I be going down the route of the driver hasn't been identified? - The Particulars say "THe PCN Relates to <Vehicle Make> under registration <VRN> does that mean they have to identify the driver?


Law 101 is always who are the parties. So the burden of proof lies with the Claimant to show the defendant was driving or responsible [using POFA]

2) Should I be mentioning the 8% per annum statutory interest charge they have added to the costs?

"Statutory" means just that. It is a legal entitlement but judges can and do reduce if - if you lose.

3) Do i mention about grace periods? or does that not apply when it's "not a pre-authorised vehicle" claim?


It would apply if the car was there for a few minutes to allow the driver to check terms. But if it was more that say 5 mins, then it is a waste of time

Looks good to go unless someone chips in at the last moment.

robertow88

Hi All - I am not sure if I have stumbled on something here or this is just the norm so a little advise as I prepare my final defence would be really appreciated.

So I done a SAR to PAS and it came back with a load of paperwork 2 of which are;
1) Notification of keeper liability (Dated the exact same date as the alleged contravention date
2) Notice to keeper (Dated 1 calendar month so 31 days after alleged contravention date)

So the letters state that they are relying on Schedule 4 of POFA 2012.

So I read through Schedule 4 to find that it states the Notice to keeper is to be issued within 28 days following the 28 days starting the DAY AFTER THE NOTICE TO THE DRIVER. so I am guessing that means the notice to the keeper is to be issued within 57 days from the alleged contravention?

However a couple of things dont add up here (it may just be me) but the Notification of keeper liability which is dated BEFORE the Notice to keeper states that; you was contacted previously in regards to a PCN. As stated in the correspondence that if you failed to provide the drivers details you would be liable

How can the Keeper be notified previously if the letter on which it is saying they where contacted previously on is dated the exact same as the contravention? They can't write to the keeper to tell them before the driver has committed the contravention?

Also it states on the Notice to keeper that the balance is due by -- The date they have given is exactly 29 days after the contravention which could mean 28 days after to the notice to driver assuming they left a ticket or wrote to the driver. However as per schedule 4 shouldn't the balance be due 28 days after that date so 57 days after notice to driver?

Finally is it normal that the Notification of keeper liability is dated before notice to keeper? That to me don't sound the right way round?

Redx

not sure if you are telling this correctly

assuming the first charge was a windscreen ticket, it is NOT a notice to Keeper, but a notice to Driver

assuming there is a windscreen ticket issued, the NTK comes in the post to the KEEPER between day 29 and day 56 (so on or after day 31) , IF they are following POFA2012, also mentioning that the keeper can name the driver and if they fail to do so they will hold the keeper responsible under POFA2012

so the paragraph mentioned for PE NTK,s for example

to hold the keeper liable for an error by the driver, they must have followed POFA2012 with the postal NTK to that keeper and added the POFA2012 warning to it

and reminder notice sent in the post reminds the KEEPER of the original postal NTK and repeats the warnings about naming the driver and about POFA2012

So the first letter should be a notice of liability to the driver if its a windscreen pcn (not to the keeper)

the first postal notice is deemed to be the NTK and the first time the keeper hears about it , hence the warnings being given about naming the driver and POFA2012 etc

so letter 1 seems to be the windscreen notice to driver

and letter 2 31 days later seems to be the postal NTK to the keeper

any subsequent postal letters to the keeper would be a reminder within the 28 days for appeals


the balance for a DRIVER is due by the 29TH DAY following the contravention


and the balance for a KEEPER is due by the 28th or 29th day following the NTK being issued (or being received by the keeper) - so a keeper gets the same chances that a driver does


PPC,s make mistakes with their templates, do not assume they are smart cookies, they arent

robertow88

Hi Redx

No I thought I was going crazy myself. SO - Ignore the PCN on the windscreen, assume that was there but we dont know for certain ;-) What i have in front of me as the KEEPER are 2 pieces of paper clearly written as follows:

Paper 1: "Notification of KEEPER Liability" which is dated TWICE with "Date of issue" as the EXACT same date as the "contravention date" and states "You were contacted previously in regards to a parking charge notice" and that if the balance wasn't settled or the drivers details given within 28 days then you the keeper are liable. It says that you have 14 days from the issue of THIS notice of keeper liability to pay the balance if you don't then a £25 admin fee is added. It then has a date of when the balance is due which is exactly 28 days after the alleged contravention date.

I don't get how they can say balance is due 14 days after the issue of the letter. but the "Balance due date" they have given is 28 days from the contravention date?

I also don't get how they can say the balance is to be paid by the keeper as they are liable and the date they give is 28 days from contravention when it should be 29 days after the NTK.

Paper 2: Notice to keeper - Dated 1 month after the contravention - and so exactly 31 days after the above mentioned Notification of keeper liability. From what I can see it sets out what the NTK should do but shouldn't this come BEFORE the Notification of keeper liability letter?

There was then another 2 more "Final Demands" sent with exactly the same date on but received on different day and times and both for £125 so they added the £25 on

robertow88

So do i mention the above in my deference? about the Notification of keeper letter being dated the same as the contravention and the fact that they are requesting monies from the KEEPER only 28 days after the contravention date therefore violating POFA?

robertow88

Please could some one help with the above as I have to print and post this today.

I just need to know how I would word it if I am putting in that they are requesting money from the KEEPER in a way in which violates POFA? I get lost with how to word it correctly - Once I have that I can post up my Defence for a final check

Thanks
Rob

KeithP

robertow88 wrote: »

Please could some one help with the above as I have to print and post this today.

Surely you are not thinking about posting your Defence?

Please re-read post #5 above.