UKPC 4 tickets Court Claim

nosferatu1001

The keeper does not have to prove a right to park there. They just have to prove the vehicle was authorised to be there, which can be a witness statement by the leaseholder to that effect.

Coupon-mad

new_dummy wrote: »

so when i defend do i admit to be the driver as the lease is on drivers name. The keeper lives at a different address and will have a hard time proving his right to park there.

YOU do not defend. You are not the defendant, are you?

Are you saying you didn't understand what I said, how come, this is crystal clear:

So my warning was that it is VITAL that the named Defendant, defends (blinking obvious of course, but we have seen 2 people recently not actually engage their brains properly and realise this).

Have you not read any other residential defence cases, all the same as this one, and often with a registered keeper defendant who was not the driver:

Then Mr B is supposed to be the one to defend himself in court. How can Mr B defend himself with the lease of Mr A?

By producing it as evidence, and hopefully Mr A might agree to attend too as a witness.

But Mr A CANNOT defend a case where he is not the named defendant, obviously! You can't play pass the parcel with a claim form.

new_dummy

Hi All


As per advice on the newbies thread i used a defence from residential parking on my own space defence as below;


DEFENCE
Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant
is prejudiced and is unable to prepare a full and complete Defence. The
Defendant reserves the right to seek from the Court permission to serve an
Amended Defence should the Claimant add to or expand his Particulars at a
later stage of these proceedings and/or to limit the Claimant only to the
unevidenced allegations in the Particulars.
2. The Particulars of Claim fail to refer to the material terms of any contract
and neither comply with the CPR 16 in respect of statements of case, nor the
relevant practice direction in respect of claims formed by contract or conduct.
The Defendant further notes the Claimant's failure to engage in pre-action
correspondence in accordance with the pre-action protocol and with the
express aim of avoiding contested litigation.
Background
3. It is admitted that at all material times the Defendant is the registered
keeper of vehicle registration mark LK53VJF which is the subject of these
proceedings. The vehicle was insured with 3 named drivers permitted to use it.
4. It is admitted that on 1/12/2015, 2/12/2015, 9/12/2015 and 13/6/2016 the
Defendant's vehicle was parked at Cedarwood Court.
5. It is denied that the Defendant was the driver of the vehicle. The Claimant is
put to strict proof.
5.1. The Claimant has provided no evidence (in pre-action correspondence or
otherwise) that the Defendant was the driver. The Defendant avers that the
Claimant is therefore limited to pursuing the Defendant in these proceedings
under the provisions set out by statute in the Protection of Freedoms Act 2012
("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA
the Claimant must demonstrate that:
5.2.1. There was a ‘relevant obligation’ either by way of a breach of contract,
trespass or other tort; and
5.2.2. That it has followed the required deadlines and wording as described in
the Act to transfer liability from the driver to the registered keeper.
It is not admitted that the Claimant has complied with the relevant statutory
requirements.
5.3. To the extent that the Claimant may seek to allege that any such
presumption exist, the Defendant expressly denies that there is any
presumption in law (whether in statute or otherwise) that the keeper is the
driver. Further, the Defendant denies that the vehicle keeper is obliged to
name the driver to a private parking firm. Had this been the intention of
parliament, they would have made such requirements part of POFA, which
makes no such provision. In the alternative, an amendment could have been
made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige
the identification of drivers only in strictly limited circumstances, where a
criminal offence has been committed. Those provisions do not apply to this
matter.
Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his vehicle were in breach
of any parking conditions or were not permitted to park in circumstances
where an express permission to park had been granted to the Defendant
permitting the above mentioned vehicle to be parked by the current occupier
and leaseholder of 31 Cedarwood Court, 78 Clapton Common, London E5 9FU,
whose tenancy agreement permits the parking of vehicle(s) on land. The
Defendant avers that there was an absolute entitlement to park deriving from
the terms of the lease, which cannot be fettered by any alleged parking terms.
The lease terms provide the right to park a vehicle in the relevant allocated
bay, without limitation as to type of vehicle, ownership of vehicle, the user of
the vehicle or the requirement to display a parking permit. A copy of the lease
will be provided to the Court, together with witness evidence that prior
permission to park had been given.
7. The Defendant avers that the operator’s signs cannot (i) override the
existing rights enjoyed by residents and their visitors and (ii) that parking
easements cannot retrospectively and unilaterally be restricted where
provided for within the lease. The Defendant will rely upon the judgments on
appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir
Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011.
The Court will be referred to further similar fact cases in the event that this
matter proceeds to trial.
8. Accordingly it is denied that:
8.1. There was any agreement as between the Defendant or driver of the
vehicle and the Claimant
8.2. There was any obligation (at all) to display a permit; and
8.3. The Claimant has suffered loss or damage or that there is a lawful basis to
pursue a claim for loss.
Alternative Defence - Failure to set out clearly parking terms
9. In the alternative, the Defendant relies upon ParkingEye Ltd v Barry Beavis
(2015) UKSC 67 insofar as the Court were willing to consider the imposition of
a penalty in the context of a site of commercial value and where the signage
regarding the penalties imposed for any breach of parking terms were clear -
both upon entry to the site and throughout.
9.1. The Defendant avers that the parking signage in this matter was, without
prejudice to hisP primary defence above, inadequate.
9.1.1. At the time of the material events the signage was deficient in number,
distribution, wording and lighting to reasonably convey a contractual
obligation;
9.1.2. The signage did not comply with the requirements of the Code of
Practice of the Independent Parking Committee’s ("IPC") Accredited Operators
Scheme, an organisation to which the Claimant was a signatory; and
9.1.3. The signage contained particularly onerous terms not sufficiently drawn
to the attention of the visitor as set out in the leading judgment of Denning MR
in J Spurling v Bradshaw [1956] EWCA Civ 3
9.2. The Defendant avers that the residential site that is the subject of these
proceedings is not a site where there is a commercial value to be protected.
The Claimant has not suffered loss or pecuniary disadvantage. The penalty
charge is, accordingly, unconscionable in this context, with ParkingEye
distinguished.
10. It is denied that the Claimant has standing to bring any claim in the absence
of a contract that expressly permits the Claimant to do so, in addition to
merely undertaking parking management. The Claimant has provided no proof
of any such entitlement.
11. It is denied that the Claimant has any entitlement to the sums sought.
12. It is admitted that interest may be applicable, subject to the discretion of
the Court on any sum (if awarded), but it is denied that interest is applicable on
the total sums claimed by the Claimant.
STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.




I now realised that i left out a point i think is very strongly defending. I had received numerous emails from the management company that UKPC confirmed to them that the tickets are cancelled. Can i still add this to the defence at this late stage?



i am not sure what to do next as time is very pressing; i have received the witness statement on saturday from UKPC.

What documents am i supposed to send to the claimant and court? On the court letter it is very threatening that if they dont receive a copy 14 days prior, the case may be thrown out?



:shocked:

Coupon-mad

You know what to send, as the NEWBIES thread tells you.

Witness Statement (WS) and evidence, and you have 48 hours to do this so may was well spend today putting it together. You can also tear apart UKPC's own WS!

NEWBIES thread shows examples of how to word a WS and what evidence to use.

new_dummy

what about adding a defence?

Coupon-mad

You need to read the NEWBIES thread. Defence is over, you are at WS/evidence stage.

new_dummy

Sorry for the silly sounding questions but i couldt find anything about this in NEWBIES;


As the keeper was not the driver, and it is the driver who is defending the residential own space defence, is the driver also supposed to appear in court and admit to the judge that he is the driver and all supporting docs' (AST, Lease, emails with managing agent and UKPC) were for him?

Coupon-mad

Hang on, so the driver is defending.

And the driver was a visitor (not a resident) and is relying upon the rights granted by the resident he/she was visiting?

new_dummy

Will clarify with no names or addresses;


The car is registered on the name of Mr A (father) who lives at location X,
Mr B(son) resides at the residential address Y where the tickets were served,
Mr B is the actual driver of the car,
All the letters of solicitors etc were sent to Mr A and the claim was filed against Mr A as this was the name they received from DVLA.
I am Mr B and are working on this case as i am the full time user of the car who is still registered on my father's name.

How am I to proceed? The defendant is obvs. the keeper who doesnt have proof that he was allowed to park.
Should the driver identify himself and hereby have the benefit of proof that he was allowed to park there?

Coupon-mad

Two Witness Statements, and Dad and you both attend this hearing, ideally. Dad has to!

Dad provides a WS as the Defendant, providing his lease as evidence, plus those 'numerous emails' all printed out, from the management company that UKPC confirmed to them that the tickets are cancelled.

You provide a WS as the driver, again repeating your story and the fact you are a resident of this household and relied upon the primacy of contract, and that you were the person who emailed the Managing Agents and were informed that UKPC had cancelled the charges as they were unsupported by the landowner against residents.

How to word a WS is in the NEWBIES thread, search it (Control & F) for 'witness'.