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NPE/Gkadstones Court Claim Form
Craackling86
Posts: 21 Forumite
Hello,
I have Just received a Claim Form from the Northampton Business Centre Issued 17 June.
I have been served as the registered keeper.
It is believed that the vehicle was loading in a (long term residence) hotel unloading laundry for a resident at the time, permission by resident given verbally. I was not the driver nor is there any proof of who the driver was.
There is no longer contact with the resident.
I am going to Acknowledge the serving in order to give me the extended time to prepare my defence.
Here is my (very) draft defence, made from other examples on this forum. All help very much appreciated:
Defence:
1. It is admitted that the Defendant is the registered keeper of the vehicle in question.
2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
2(i) the driver has not been evidenced on any occasion.
2(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
3. The signage displayed only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The only clear large lettering was 'NO UNAUTHORISED PARKING' and it is submitted that the presence of the vehicle was certainly not 'unauthorised'.
4. The car park is for the use of residents and their guests. In this case, it is my belief as registered keeper that the car was loading on the premise with the express permission of a tenant for the purposes of loading and unloading during the time of the alleged incident.
5. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the landlord. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.
6. The driver was allowed the right to load/unload a resident, relying on an express verbal agreement and email permission by said resident.
7. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.
8. Loading or unloading with the permission of a resident is not 'parking' and signs cannot override existing rights enjoyed by residents and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.
8(i) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''
8(ii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.
8(iii) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.
9. The right of the resident to allow authorised vehicles to load/unload pre-dates the arrival of this Claimant.
10. In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).
11. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to UK Parking Control Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the residents and extended to permitted drivers who were expressly allowed on site.
12. Alternatively, even if there was a contract, the provision requiring payment of £1400 (correct amount to be edited before submission) is an unenforceable penalty clause.
13. Further and alternatively, the provision requiring payment of £1400 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.
14. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.
15. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.
16. On the one hand the resident verbally allowed access, to enable loading/unloading on more than one occasion . Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.
16(i) In 'Saeed v Plustrade Limited [2001] EWCA Civ 2011' a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the landholder, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that the landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.
I have Just received a Claim Form from the Northampton Business Centre Issued 17 June.
I have been served as the registered keeper.
It is believed that the vehicle was loading in a (long term residence) hotel unloading laundry for a resident at the time, permission by resident given verbally. I was not the driver nor is there any proof of who the driver was.
There is no longer contact with the resident.
I am going to Acknowledge the serving in order to give me the extended time to prepare my defence.
Here is my (very) draft defence, made from other examples on this forum. All help very much appreciated:
Defence:
1. It is admitted that the Defendant is the registered keeper of the vehicle in question.
2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.
2(i) the driver has not been evidenced on any occasion.
2(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.
3. The signage displayed only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The only clear large lettering was 'NO UNAUTHORISED PARKING' and it is submitted that the presence of the vehicle was certainly not 'unauthorised'.
4. The car park is for the use of residents and their guests. In this case, it is my belief as registered keeper that the car was loading on the premise with the express permission of a tenant for the purposes of loading and unloading during the time of the alleged incident.
5. The reason for this parking company's presence on this site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the landlord. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.
6. The driver was allowed the right to load/unload a resident, relying on an express verbal agreement and email permission by said resident.
7. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.
8. Loading or unloading with the permission of a resident is not 'parking' and signs cannot override existing rights enjoyed by residents and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’.
8(i) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''
8(ii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.
8(iii) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.
9. The right of the resident to allow authorised vehicles to load/unload pre-dates the arrival of this Claimant.
10. In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).
11. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. Strict proof is required that there is a chain of contracts leading from the landowner to UK Parking Control Ltd and that they have a right to unilaterally remove or interfere with the overriding rights enjoyed by the residents and extended to permitted drivers who were expressly allowed on site.
12. Alternatively, even if there was a contract, the provision requiring payment of £1400 (correct amount to be edited before submission) is an unenforceable penalty clause.
13. Further and alternatively, the provision requiring payment of £1400 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.
14. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.
15. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.
16. On the one hand the resident verbally allowed access, to enable loading/unloading on more than one occasion . Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.
16(i) In 'Saeed v Plustrade Limited [2001] EWCA Civ 2011' a tenant was granted a right in common with others to park on such part of the forecourt as might from time to time be specified by the landholder, who later proposed to reduce the availability of parking and to charge for it. On appeal it was held that the landholder was only entitled to change the location of spaces, not to reduce their number, nor to unreasonably restrict parking previously offered, nor to charge for it. Such restrictions would interfere with easements enjoyed under the lease.
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Comments
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How did they fail POFA? (Your 2)0
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Hi and welcome to the forum.Craackling86 wrote: »I have Just received a Claim Form from the Northampton Business Centre Issued 17 June.
With a Claim Issue Date of 17th June, you have until Monday 8th July to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.
Having done the AoS, you have until 4pm on Monday 22nd July 2019 to file your Defence.
That's over four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.
When you are happy with the content, your Defence should be filed via email as suggested here:-
Print your Defence.
- Sign it and date it.
- Scan the signed document back in and save it as a pdf.
- Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
- Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
- Log into MCOL after a few days to see if the Claim is marked "defence received". If not chase the CCBC until it is.
- Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
- Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.
0 - Sign it and date it.
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by not asking who the driver was?0
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In your Defence, the first time you mention POFA 2012 you should spell it out as Schedule 4 of The Protection of Freedoms Act 2012.0
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thank you for the quick replies. I will do the AoS tomorrow and finalise my draft defence after that.0
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Doesn't matter, if you make mistakes like this in a defence:Craackling86 wrote: »by not asking who the driver was?it is my belief as registered keeper that the car was parkedPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
This is why I am asking for assistance. How should this be worded? I was not the driver and the photos done show who the driver was.
Thank you0 -
It's obvious what to change in that sentence, surely! It almost reads 'the registered keeper parked' and the Judge might read it as I did.
Remove 'as registered keeper'.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Ahhh yep. Sorry. Just had a baby = no sleep.0
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Congrats!
I know how that can be. I get by on no sleep now but for other reasons in my life.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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