patrons only PCN

Fruitcake

How do the scammers know that the driver or an occupant of the car did not use the premises for which parking is provided?
Was the PCN/NTK issued using ANPR or the unapproved MNPR method? 
If the former, was there a requirement for motorists to enter a VRM in the shop the motorist is supposed to use when parking on the site in question.

anicecuppa

Morning All.  Well the claim form has arrived and been acknowledged and my 28 days are ticking and I'm lining up my soldiers...  I have a 'hypothetical' q for those wiser than I.  Would there be any point in highlighting the ways in which the PPC fell short of the POFA requirements such that you could argue they had not met the necessary threshold to make the registered keeper liable, if one was then going to base ones main defence on evidence that shows one was the driver on said occasion?  Does that make sense?

Le_Kirk

If they have "failed" POFA they cannot hold the keeper liable for the driver's actions (or failure to P&D or to display a permit) provided they do not know who was driving at the time of the event.  Just ask yourself this (and it might be hypothetical) if the judge asks you a direct question "were you the driver on the day?" what are you going to say?

anicecuppa

In that hypothetical situation, I imagine I would be bound to admit that I was. Which is why the defence will be majoring on the inadequate signage/disproportion of the charge etc - I suppose the question behind the question was whether it would hypothetically be worth pointing out those POFA failures too.  I'm still not sure that makes sense 

Umkomaas

I think if you were the driver, just say so and forget PoFA. PoFA's strength lies where the keeper can prove they were not the driver at the parking event. 

The danger in attempting to duck and dive behind PoFA, even though you were clearly the driver, is that it may cause the Judge to question other parts of your defence as to whether there is more ducking and diving going on there, or get distracted away from much stronger points you have going in your favour. 

The verbal gymnastics you'd need to perform on the day to avoid saying 'I' or 'me' would take the skills of a ventriloquist - IMHO! 😊

Redx

The judge can hypothetically presume that otbp you were the driver due to no direct denial on papers or in court , so 51% sure that you were the driver , then POFA does not assist and hypothetically the judge treats you as a hostile witness , not to be believed !!

As mentioned above , POFA can protect a keeper from the actions of another person who was the driver , it does not protect the driver , so leave POFA out and concentrate on no landowner authority , poor signage , the CoP , the CRA 2015 etc

anicecuppa

Thanks - that's very helpful.

anicecuppa

OK folks, here's first draft for the defence.  It is based in part on a similar one I found on the forum. [13] appears to be replicated in the rest of the template defence so may be redundant.  [5] may go better in witness statement?  I'm not sure whether to include it here?  Also, on all their paper and legal correspondence they have mis-spelled my name - which seems to me at least further evidence of the careless scattergun approach they take - is this worth mentioning anywhere or is that simply churlish?

1. Car spares and TSB are situated adjacent to each other on the A38 Bristol Road South with access from either the side road Broughton Crescent just off the A38 or from the A38 itself. The car park is sited in front of both of these premises and do not share a physical barrier between plots.

At the date to which the claim refers the defendant had lived in the area for less than 6 months, and having driven past the site had observed and assumed an unofficial one way route where patrons of both Car spares and the TSB enter the site from Broughton Crescent and exit via the Bristol Road South.  Given the speed of traffic on the Bristol Road and the tight turn into the car park this appeared to be both convenient and safe, parking in whichever spaces were available.

 2. The nature of both businesses means patrons spend little time parked and on average spend fewer than five minutes either ordering or buying parts to making deposits or withdrawing cash.

 3. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.

 4. The Defendant believes that the parking in the designated area was and is for an adjacent premises and that there was no clear overriding signage stating otherwise.

 5. The Defendant has only parked in this area on one occasion, during which there were no other customers in the TSB, so that paying in a single cheque took place in less than five minutes.

 6. The Claimant has done nothing to denote the correct areas that they claim to cover.

 7. The particular of the claim are sparse. There is no information regarding the alleged contract, what the terms on the signage actually said on the material date, or what the alleged breach was, or why/how the claimant purports that the registered keeper is liable, given the facts the claimant has failed to evidence the identity of the driver and they do not use the keeper liability provisions in the Protection of Freedoms Act2012 (the’POFA’).

 8. The particulars of claim does not state whether they believe the defendant was the registered keeper and/or the driver of the vehicle. 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.

 9. The signage on and around the site was unlit, not prominent, in small font and did not clearly identify the area covered. 

 10. It is contended that the Claimant failed to alert local visitors to an onerous charge and unexpected obligation, or risk £100 penalty. There is no sign at the entrance to the car park and furthermore the signs are sparse within the car park. The claimant is put to strict proof that the signs were there, that the signs conformed to the latest IPC code of practice and that the signs met the bar being set by Denning LJ in  J Spurling Ltd v Bradshaw [1956] in the well-known 'Red Hand Rule' where hidden/unknown terms were held to be unenforceable:  ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient.'' 

 11. The defendant would like to bring to the attention of the court that over 2 years after the alleged contravention occurred vehicles are still parking in this location and that the parking operator has made no efforts to provide clear signage or hatched lines and anything that would make it clear that the area is restricted. It can only be assumed that this action is an intentional effort to mislead customers into parking in these ‘restricted’ locations and then issuing them with extortionate fines in a bid to gain revenue or wasting the court’s time with cases that could have been avoidable had the parking operator had the due diligence to provide adequate markings and signage.

 12. The claimant is asked to --

Provide proof that adequate signs were erected.

Provide examples of the signs displayed.

 13.  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.

KeithP

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

Upon what date did you file an Acknowledgment of Service?
Your MCOL Claim History will have the definitive answer to that.

anicecuppa

Hi Keith, I'm reluctant to post that information since it may identify me. But I've checked all the dates and I have until early Feb to get this to them.  There's still plenty of time to edit if that's why you're asking!