We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
Court Date Advice Please.
Kalbo
Posts: 11 Forumite
This is a case from 2017 from UK Car Park Management no being taken to court by Gladstones solicitors.
I will try and keep the details simple, My wife visited her friend in a private block of flats and parked in the visitors parking and subsequently I received a Parking charge notice from Car Park Management, I did not respond to any correspondence and later received letters from Gladstones solicitors culminating in this court action taking place on July 1st.
I submitted the defence below:
The defendant was not the driver of the car the defendants wife was and the defendant was not even present at the time.
The defendant’s wife was visiting ################ and ################ using the visitor parking of which they have the right to do so.
There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same, no parking permit had been issued To ################ or ################ at the time of the claimants claim but has subsequently been issued confirming their right to use the visitors parking.
No correspondence was entered into as the claimant does not have an interdependent or impartial appeals system in place which negates the possibility of a fair hearing.
The erection of the Claimant's signage, and the purported contractual
terms conveyed therein, are incapable of binding in any way, and
their existence does not constitute a legally valid variation of
rights of the tenant. Accordingly, the Defendant denies having
breached any contractual terms whether express, implied, or by
conduct.
The Claimant, or their legal representatives, has added an additional sums to the original parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
The claimant states ‘The driver of the vehicle agreed to pay the PCN within 28 days of issue yet failed to do so’ this claim is not true and no correspondence or conversation have taken place between the defendant and claimant and they incorrectly identified the defendant as the driver supporting this is a false claim.
I now have their disclosure/rebuttal to my defence:
The Defence
8. It is neither accepted nor denied the Defendant was not the driver of the vehicle at the time the charge was issued. Notwithstanding this, the defendant was given ample opportunity to nominate the driver and transfer liability prior to these proceedings being issued which is required under paragraph 5(2) of POFA. The correspondence was sent to the same address the Defendant confirms as his address for service within his Defence and therefore there is no reason as to why the correspondence would not have been received.
9. In the view of the above, if the Defendant was not the driver, he is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the protection of Freedoms Act 2012 (‘the Act’) which states;
“The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”
10. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proven, to be the registered keeper.
11. The Defendant avers his wife was able to park due to the fact she was visiting residents of the Relevant Land and there was no need to display a permit. With all due respect, The Defendant / Defendant’s wife is clearly not the leaseholder and therefore not subject to any rights granted by that lease. Further, my Company has been instructed to operate a parking enforcement scheme on the Relevant Land and the Defendant has failed to prove otherwise.
12. The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the International Parking Community (“the IPC”). It is the driver’s responsibility, the check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. By parking in the manner in which they did, the charge was/were properly incurred.
I am taking the resident of the flat she was visiting as a witness along with submitting evidence of her residence.
Any advice would be appreciated
Many Thanks
I will try and keep the details simple, My wife visited her friend in a private block of flats and parked in the visitors parking and subsequently I received a Parking charge notice from Car Park Management, I did not respond to any correspondence and later received letters from Gladstones solicitors culminating in this court action taking place on July 1st.
I submitted the defence below:
The defendant was not the driver of the car the defendants wife was and the defendant was not even present at the time.
The defendant’s wife was visiting ################ and ################ using the visitor parking of which they have the right to do so.
There are no terms within the lease requiring lessees to display parking permits, or to pay penalties to third parties, such as the Claimant, for non-display of same, no parking permit had been issued To ################ or ################ at the time of the claimants claim but has subsequently been issued confirming their right to use the visitors parking.
No correspondence was entered into as the claimant does not have an interdependent or impartial appeals system in place which negates the possibility of a fair hearing.
The erection of the Claimant's signage, and the purported contractual
terms conveyed therein, are incapable of binding in any way, and
their existence does not constitute a legally valid variation of
rights of the tenant. Accordingly, the Defendant denies having
breached any contractual terms whether express, implied, or by
conduct.
The Claimant, or their legal representatives, has added an additional sums to the original parking charge, for which no explanation or justification has been provided. Schedule 4 of the Protection Of Freedoms Act, at 4(5), states that the maximum sum which can be recovered is that specified in the Notice to Keeper. It is submitted that this is an attempt at double recovery by the Claimant, which the Court should not uphold, even in the event that Judgment for Claimant is awarded.
The claimant states ‘The driver of the vehicle agreed to pay the PCN within 28 days of issue yet failed to do so’ this claim is not true and no correspondence or conversation have taken place between the defendant and claimant and they incorrectly identified the defendant as the driver supporting this is a false claim.
I now have their disclosure/rebuttal to my defence:
The Defence
8. It is neither accepted nor denied the Defendant was not the driver of the vehicle at the time the charge was issued. Notwithstanding this, the defendant was given ample opportunity to nominate the driver and transfer liability prior to these proceedings being issued which is required under paragraph 5(2) of POFA. The correspondence was sent to the same address the Defendant confirms as his address for service within his Defence and therefore there is no reason as to why the correspondence would not have been received.
9. In the view of the above, if the Defendant was not the driver, he is pursued as the Registered Keeper of the vehicle pursuant to Schedule 4 (4)(1) of the protection of Freedoms Act 2012 (‘the Act’) which states;
“The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”
10. The Protection of Freedoms Act 2012, Sched 4 (para 2) states that; the “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proven, to be the registered keeper.
11. The Defendant avers his wife was able to park due to the fact she was visiting residents of the Relevant Land and there was no need to display a permit. With all due respect, The Defendant / Defendant’s wife is clearly not the leaseholder and therefore not subject to any rights granted by that lease. Further, my Company has been instructed to operate a parking enforcement scheme on the Relevant Land and the Defendant has failed to prove otherwise.
12. The signage at the site is clearly visible and the information on the signage informs the driver of the parking conditions at the location. Signage is prominent throughout the parking area. Signage location, size, content and font has been audited and approved by the International Parking Community (“the IPC”). It is the driver’s responsibility, the check for signage, check the legality and obtain any authorisation for parking before leaving their vehicle. The signage on site is the contractual document. By parking in the manner in which they did, the charge was/were properly incurred.
I am taking the resident of the flat she was visiting as a witness along with submitting evidence of her residence.
Any advice would be appreciated
Many Thanks
0
Comments
-
So you dont have a hear date then......0
-
Yes July 1st0
-
You don't say what specific advice you want??
See #2 in the Newbies faq thread
That covers court claims from receipt of the claim right through to the hearing with advice on how to complete each stage0 -
Sorry it was more general advice on if the required under paragraph 5(2) of POFA negates that defence and even though I had not personally formed any contract with them I could be held liable for an alleged contract formed without my knowledge or consent.0
-
You need to write a Witness Statement and gather your evidence.
It's been mentioned before, but guidance on how you might do those things is fully explained in post #2 of the NEWBIES thread.
Also, the resident of the flat needs to provide a Witness Statement.
The date when you must file and serve that stuff is spelt out in your latest letter from the Court. Do not miss that target date.
Your most recent post seems to be saying that you don't understand how a registered keeper can be liable for a contract agreed by the driver. Is that what you are asking?
Are you the Registered Keeper of the vehicle?0 -
Yes I am the registered keeper and the resident of the flat has provided a Witness Statement and is also appearing with me as a defence witness on the day of the hearing.
I was asking if the relying on the paragraph 5(2) of POFA was arguable on the ground that I could not form a contract with the claimant thus not be liable or it is established as accepted by judges.0 -
They haven't incorrectly taken you to be driver.
They are pursuing you because you are the RK!0 -
Sorry, you'll need to spell out your doubts for me.I was asking if the relying on the paragraph 5(2) of POFA was arguable on the ground that I could not form a contract with the claimant thus not be liable or it is established as accepted by judges.
Surely no-one is suggesting that as the RK you have entered into any contract with the Claimant?
The RK is being sued because the driver allegedly entered into a contract with the Claimant, and the Claimant is now saying that POFA has effectively transferred that liability of the driver to the keeper.0 -
Thanks for you assistance, it's really semantics as transferring the liability for an alleged contract is still holding a 3rd party liable for a contract they never entered into, all I wanted to know is if this is accepted even though it contradicts the logic of knowing about, participating in the forming of the contract being a willing or at the very least knowing participant.0
-
Have you read up and understood POFA?0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 352.2K Banking & Borrowing
- 253.6K Reduce Debt & Boost Income
- 454.3K Spending & Discounts
- 245.2K Work, Benefits & Business
- 600.9K Mortgages, Homes & Bills
- 177.5K Life & Family
- 259K Travel & Transport
- 1.5M Hobbies & Leisure
- 16K Discuss & Feedback
- 37.7K Read-Only Boards