Unpaid parking - 50p

Hedgehog1948

Is there a reason you are not hitting them with POFA failure?

Wrong location on the NtK means they have not identified the relevant land.



I thought I was saying exactly that in paragraphs 1 & 2 of the Defence, although I used the words 'Therefore the NTK is invalid' and did not say it was a 'POFA failure'. Does this make difference? Is the distinction important?

Redx

I have never seen an invalid NTK

an NTK is just a Notice To Keeper, an INVOICE, nothing more

its not like those sent by councils or the police , it is not covered by legislation, not yet anyway

its the law that counts, which for a keeper is POFA2012 , so if they have failed POFA2012, say so, dont hint at it and dont try to prove that an NTK was "invalid"


an NTK can be perfectly "valid" yet fail POFA2012, many are like that


- IE:- PROVE THAT THEY FAILED POFA2012 WITH THEIR NTK TIMESCALES, WORDING, OR BOTH

Umkomaas

I thought I was saying exactly that in paragraphs 1 & 2 of the Defence, although I used the words 'Therefore the NTK is invalid' and did not say it was a 'POFA failure'. Does this make difference? Is the distinction important?

I think I'd be asking myself the question ' Who is going to read this? Can I assume that he/she will understand all the nuances and ramifications of the Protection of Freedoms Act 2012, and will they make the same inference as I do in my statement 'Therefore the NtK is invalid'?'

I'm not sure that I would.

Redx

I am not sure that I understand the defence, because I am unsure if it is a KEEPER defence, or a DRIVER defence

if the DEFENDANT endeavoured to pay on the day, then either they were driving the vehicle or were an occupant of the vehicle

there is no statement which states that the DEFENDANT was not THE DRIVER

if the defence is based on what a DRIVER did or did not do, then the POFA2012 details are totally irrelevant as they only protect a keeper, not a driver

so if the CLAIMANT knows who was driving, or if the defence admits who the driver was, then the draft above does not make sense

Hedgehog1948

I agree the land is occupied in the sense there is a car park there but it is unoccupied in that there is no person associated with the business in the car park. It's all automatic.

twhitehousescat

Hedgehog1948 wrote: »

I agree the land is occupied in the sense there is a car park there but it is unoccupied in that there is no person associated with the business in the car park. It's all automatic.

SO who pays rates on it , the bloody fairies or some other bod that takes a back hander every week and pockets it

Hedgehog1948

It is a Keeper Defence as stated in the first line of the Background. The Keeper has not admitted to the Claimant the name of the driver. Thus, as far as the Claimant is concerned, the Keeper could be the driver but equally it could be someone else.

None of the possible drivers, which includes the Defendant, endeavoured to pay on the day.

Thanks for the comment about 'Invalid NTK'. I will change the wording to state a failure of POFA2012 and not use the wording 'Invalid NTK'.

Redx

Hedgehog1948 wrote: »

It is a Keeper Defence as stated in the first line of the Background. The Keeper has not admitted to the Claimant the name of the driver. Thus, as far as the Claimant is concerned, the Keeper could be the driver but equally it could be someone else.

None of the possible drivers, which includes the Defendant, endeavoured to pay on the day.
.

point 3) doesnt make sense then , it reads like the DEFENDANT tried to pay on the day , not subsequently in response to any NTK (ie:- a delayed back payment offering to pay the daily charge I would think)

by not stating that the DEFENDANT was not the driver, it could be construed that the defendant and driver are one and the same because they have not denied it

relying on POFA2012 could be dangerous ground unless worded correctly, and judges do not like non-payment on P & D car parks , ie:- bilking

so sometimes a driver defence is betetr if for example the machines were out of order, causing frustration of contract

just be totally clear what type of defence it is and word it accordingly , bearing in mind whjat the reply would be if asked by the claimant or the judge if the defendant is the driver, or not , in court (perjury would be unwise here , ask that labour MP who got done today for lying, and she is a solicitor)


so this aspect of their POC is unexplained, ie:- the non-payment


which means the DEFENDANT is relying on POFA2012 and the inadequate signage only , plus their incorrect location

The_Slithy_Tove

As well as tightening up the wording, as suggested, it's also worth attacking the level of the charge, and putting in your retaliation to the Parking Eye vs Beavis precedent early. The court of appeal said:

46. The terms of use of the car park need, therefore, to provide a disincentive to drivers which will make them tend to comply with the two hour limit. That is afforded by the parking charge of £85. It would not be afforded by a system of imposing a rate per hour according to the time overstayed, unless that rate were also substantial, and well above what might be regarded as a market rate for the elapsed time, even if the market rate were in some way adjusted to take account of the benefit to the driver of the first two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with, merely on the basis that the contractual provision is a disincentive, or deterrent, against overstaying. When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: "But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement."

A more extensive rebuttal against pay-per-hour car park cases here for reference.

Fruitcake

If you are going to use PoFA as a defence point, then you need to compare the NTK with the PoFA line by line to point out where it fails, and state what these failures are.

Have you been to the location from the NTK to see what is actually there? Is it a block of flats? Is it a pond? Is there a private car park there at all, and if so is a private car park mis-managed by the scammers?
In other words, is it actually possible to park there, and if so, can the scammers issue PCNs?

Collect photo evidence of the "wrong place" as well as the place where the car was actually (allegedly) parked. Compare the photos provided by the scammers with the photos of the "wrong place." You might then be able to say that the scammers photos clearly show the car was not parked at the location stated on the NTK.