Parking "fine" - court letter

Coupon-mad

In 2017 Britannia PCNs were non POFA.

We need to remember that, as there are a heck of a lot of Britannia 2017 cases getting claims on here and pepipoo right now.

Redx

agreed, which is why the attention to detail is crucial here and getting the information required is slow with too many ifs and buts due to a lack of paperwork etc (blood from a stone due to a lack of data)

the defence could be a keeper based one where it states that the driver purchased a ticket, the driver followed the rules and the BPA CoP and any alleged overstay was within that BPA CoP clause #13 catch all , (BUT DOES NOT IDENTIFY THE DRIVER)

it can also state that the defendant does not believe that BRIT have followed POFA2012 and therefore the defendant as keeper is not liable for the charge

that the POC are inadequate and sparse because they do not contain any hint of what the drivers alleged rule breach was

that the signage has been checked by the defendant and is woefully indaequate and poorly lit , so does not conform to the BPA CoP nor the rules issued in the BEAVIS case and is a penalty which the BEAVIS case was not

etc


so something along those lines

sellwin90

So, having read your recent replies, as well as trying to get my head around everything with and without all the correspondence I have received, I have my defence written below. A lot of it is a draft from bargepole. I've deleted bits that I didn't think applied to my case, edited some bits and added in bits (I'll highlight).

CLAIM No: ABCDEFG

BETWEEN:

BRITANNIA PARKING (Claimant)

-and-

A.Nonymous (Defendant)

________________________________________
DEFENCE
________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXXX, of which the Defendant is the registered keeper, was parked on the material date in a marked bay allocated to Company BRITANNIA PARKING at Lambhay Car Park, Plymouth, and had a valid ticket to be parked in that bay.

3. The Particulars of Claim state that 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.

4. 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.

5. 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.

6. The lighting surrounding multiple signs in the Claimant’s car park is insufficient. The lighting over the tarriffs board is intermittent and flickers. In addition to this, the outer box which highlights the tarrifs provides a shadow underneath making it even more difficult to read the particulars when the light is in it’s “on” stage of the flickering.

7. 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 £85. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery. (Is this right with what I said in a previous comment about what was being charged)

8. The defendant had been told by the driver that they were late returning to the car on the day in question due to an incident where an elderly gentleman had fallen. The driver, who is in the care profession, stayed with the gentleman until an ambulance arrived as it is within their duty of care to do so. (Not sure if this bit should be added? And if so, worded correctly?)

9. 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.

Thanks again for all help, advice and guidance

Redx

not going to comment too much on content but it does not mention what I said about the driver fully complying with the car park rules and buying a ticket in the initial grace period allowed by the BPA CoP and leaving within the minimum 10 minutes grace period allowed by the BPA CoP at the end of the parking period

I suggest you double check the narrative we have established as regards the sparse POC & the LEGAL ARGUMENTS for the defence , on the assumption that the rules for parking and the BPA CoP rules were complied with by the driver

nor does it state that the CLAIMANT has failed POFA2012 and so the defendant is not liable under POFA2012 and the claimant has not identified who the actual driver was

sellwin90

Redx wrote: »

not going to comment too much on content but it does not mention what I said about the driver fully complying with the car park rules and buying a ticket in the initial grace period allowed by the BPA CoP and leaving within the minimum 10 minutes grace period allowe by the BPA CoP at the end of the parking period

So, I hadn't put this in as without the SAR or previous letters, I have no idea whether or not it was within the ten minute grace period.

Redx wrote: »

I suggest you double check the narrative we have established as regards the sparse POC & the LEGAL ARGUMENTS for the defence , on the assumption that the rules for parking and the BPA CoP rules were complied with by the driver

Is this not argument case no.4? That was the way I understood it which is why I hadn't added anything.

Redx wrote: »

nor does it state that the CLAIMANT has failed POFA2012 and so the defendant is not liable under POFA2012 and the claimant has not identified who the actual driver was

7. The Claimant has failed the Protection of Freedoms Act 2012 and so the defendant is not liable under the POFA 2012. The claimant has not identified who the driver of the vehicle was. (should I put this in before the current no.7 or instead of the current no.7, as if they've failed it then the current no.7 becomes invalid?) (Also, sorry if I've missed this but is it their duty to identify the driver and if they don't/can't then they can't claim?)

Redx

you can assert that you believe this part, it is for the defendant to prove the driver failed to do so, and their POC has no cause of action listed (but the NTK has)

so you need something that states this to be true to your knowledge , then decide just before the defence submission whether it stays in or not

at this stage its a draft, so can be amended anytime up to submission, so get all the legal arguments in that you believe to be true, without going overboard




it doesnt read that way to me , plus as the driver bought a ticket, the driver entered into a contract with the claimant, the ticket proves it, so the defendant has no contract, but the driver did at the time due to the purchase of a valid ticket




yes, put in that they failed POFA2012 blah blah , amend it accordingly , either as part of number 7 but as number 7 and move that to 8 etc

Redx

sellwin90 wrote: »

Also, sorry if I've missed this but is it their duty to identify the driver and if they don't/can't then they can't claim?

yes it is their duty to identify a driver , UNLESS they can transfer liability to a keeper (ie:- to comply with a 6 year old law)

if they dont , yes they can claim, of course they can, but YOU expect a judge to strike out their claim on the basis that they failed POFA2012 (your defence)

a claimant can claim whatever they like, doesnt mean they can prove it is a valid claim, so an invalid claim means they fail, not proving their case against a defendant - they fail - ad infinitum

its not about what they claim, its about what they can prove and can they prove the correct person is in the dock ?

same applies to police cases, they may "know" who was driving, but can they PROVE who was driving ?


I may have lesions or swelling on my body, you may claim it is sepsis, but can you PROVE it is sepsis, and not some other disease with similar symptoms ?

sellwin90

I suggest you double check the narrative we have established as regards the sparse POC & the LEGAL ARGUMENTS for the defence , on the assumption that the rules for parking and the BPA CoP rules were complied with by the driver

I'm really struggling to understand how to put this into the defence. I'm not really sure how to word it without it sounding like the current No.4 in my defence already, unless I am totally confused about what is being said here. Sorry

As advised, I've added in the following point (which can or can't be removed if further evidence (SAR etc) is provided):
3. The driver fully complied with the car park rules by entering the vehicle registration number and purchasing a ticket within the initial grace period allowed by the British Parking Assoication’s (BPA) Code of Practice (CoP) and left within the minimum 10 minutes grace period allowed by the BPA CoP at the end of the parking period.


Argument point 8 (previously 7 above) now reads as follows:
8.a) 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 £85. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.
b) The Claimant has failed the Protection of Freedoms Act 2012 and so the defendant is not liable under the POFA 2012. The claimant has not identified who the driver of the vehicle was.

Redx

I would swap them round , by having POFA2012 as not complied with so the defendant is not liable, followed by the fact that POFA2012 mentions that only the charge stated on the notice can be recovered , etc

I appreciate you may be struggling , which is why you keep honing your draft accordingly until it gives you the correct result for submission

rome wasnt built in a day, and you have weeks to hone it, yet seem to want to do it by midnight tonight !!

adapt your draft and repost it below

and I will reiterate your deadline, for posterity, as written by member KeithP on page one

Having done the AoS, you have until 4pm on Tuesday 12th February 2019 to file your Defence.

so read a dozen or twenty defences over the last 6 to 12 months , then see if any of their paragraphs are better than yours , gain inspiration from others who have done this before you , like when you were a trainee , or have you always been at your current skill level ?

stop rushing , do some time on the observation ward !! lol

Coupon-mad

Please reply with the next full draft defence for review, not piecemeal sections of it.

Easier for us to see what you are now intending to file.