VCS Letter Before Claim Clarification Request

nosferatu1001

So your time is almost up - you waited far too long before coming here!
To my rough reckoning youve got what, 3 days left? 

Le_Kirk

You are supposed to correct the bit in red about the POFA, clause 8 or 9.  If you received a NTD followed by a NTK, it is paragraph 8, if only a NTK it is paragraph 9.  See extract from POFA 2012: -

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b)has given a notice to keeper in accordance with paragraph 9.
(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.

LordHorrendous

nosferatu1001 said:

So your time is almost up - you waited far too long before coming here!
To my rough reckoning youve got what, 3 days left? 

Need to get it in by 4pm Wednesday.  Cutting it fine, I know  - it's not the only pressing issue we've had to deal with in the past month, unfortunately.  Still, as long as we file the defence on time we're still on track, I believe (FAQ thread tells me all other steps happen after defence is filed if I've read it correctly).

LordHorrendous

Le_Kirk said:

You are supposed to correct the bit in red about the POFA, clause 8 or 9.  If you received a NTD followed by a NTK, it is paragraph 8, if only a NTK it is paragraph 9.  See extract from POFA 2012: -

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b)has given a notice to keeper in accordance with paragraph 9.
(2)If a notice to driver has been given, any subsequent notice to keeper must be given in accordance with paragraph 8.

To make sure I'm clear what you mean:  do I just need to amend it so it only refers to clause 9 (as would be correct in my case) and leave in the other stuff (predatory ticketing, unsynchronised timings etc.), or do I need to delete all the other stuff and solely focus on the clause 9 detail?

LordHorrendous

Updated paragraph 18 (somewhat more concise):
There has been no breach of the terms and conditions of parking, as set out by the signs on display in the car park at the time the parking event took place (xx.xx.xx).  This is because the terms and conditions set out within those signs do not cover the particulars of this parking event, and so no agreement could be entered into.  This is proven by the following facts:

This car park allowed payment via the Parkonomy app, which does not provide any form of physical ticket that can be displayed.  The claimant’s use of Parkonomy as a method for customers to pay for parking means that many customers will not have a ticket/permit on display and that the claimant accepts this.  The claimant’s assertion that the terms and conditions of parking were breached for the stated reason: “parked without displaying a valid ticket/permit” is therefore invalid. 

The signs on display in the car park at the time the parking event took place made no stipulation as to vehicle registration details being required in any form at all.   Due to this, there can be no claim that there was any breach of terms and conditions of parking by the entering of an incorrect vehicle registration number, as no terms and conditions had been set. 

At an unknown date since the parking event in question (some time after xx.xx.xx), the claimant has updated the signs in this car park.  These new signs now explicitly state in addition to the original wording “When making payment via phone or online the FULL and ACCURATE VEHICLE REGISTRATION NUMBER of the vehicle on site must be entered.“.  This is clear acknowledgement that previous terms and conditions did not make any stipulation regarding registration details, and as such, no breach of terms and conditions could have taken place during the parking session in question, given that it took place under the old terms and conditions that did not include this section.
--------------------------------------------------------------------------------------------
I considered ditching the introductory paragraph, but thought it helped make the main point.  

I also tried an ultra-cut down version based on bare facts.  Not sure if it's too brief though:
1) The claimant has invalidated their own terms and conditions by allowing a ticketless payment system to operate in this car park.
2) The terms and conditions of parking made no stipulation as to the entering of a Vehicle Registration Number (VRN), so the claimant's assertion that an incorrectly entered VRN constitutes a breach of terms and conditions is impossible to support.

3) The defendant has proof that parking was paid for.  The VRN under which the payment was made is immaterial, and the claimant was fully able to determine against their records that the proof of payment offered had no link to any other vehicle parked at that site on that day.

3) The fact that the claimant has subsequently updated their signs to include a specific clause regarding VRNs confirms that there were no terms and conditions relating to VRNs in effect at the time of the parking event.  As such, their claim is invalid.

------------------

All feedback appreciated.

nosferatu1001

The claimant has no cause of action, as the stated condition given as reason for issuing the parking charge notice "vehicles must display a valid ticket (you fill in the proper text)" is void due to impossibility. Payment for parking was made using the "Parkonomy" mobile application, and no physical ticket is ever produced. As it is the claimant that provides this payment option, it would be perverse for them to profit from a consumer using this payment provider. 
Alternatively, the claimant appeared to raise a new cause of action, which is that the vehicles full and accurate VRM was not input correctly into the Parkonomy app. This condition was not present as part of the alleged offered contractual terms at the time of the alleged infringement, and so was not imported into any alleged contract. The defendant therefore has no liability for breach of a non-existent term. It has been noted that sometime after the date in question the signage has been updated to include this requirement. The claimant is put to strict proof to demonstrate when after XX.YY.ZZ the signage was updated. 

Still a bit rough...

LordHorrendous

Wow, that's an absolutely night-and-day difference in how that information reads!  I'm incredibly grateful for you showing me that example.  I've added in the wording of the parking charge reason.  Also, I've included a middle paragraph to try to establish that the space was paid for and that VCS were shown proof, but I don't know if the extra info helps or hinders (all underlined bits are new):
------------------------------------

The claimant has no cause of action, as the stated condition given as reason for issuing the parking charge notice “parked without displaying a valid ticket/permit” is void due to impossibility. Payment for parking was made using the "Parkonomy" mobile application, and no physical ticket is ever produced. As it is the claimant that provides this payment option, it would be perverse for them to profit from a consumer using this payment provider. 

The claimant has pursued this claim despite receiving proof that they have no cause of action.  It has been noted that during the initial appeal against the Notice to Keeper, the claimant was given all necessary information required to confirm that payment was made for the parking event in question, but appears not to have done so.  The claimant is put to strict proof to demonstrate that they acted on this information before dismissing the appeal and continuing with their claim.

Alternatively, the claimant appeared to raise a new cause of action, which is that the vehicles full and accurate VRM was not input correctly into the Parkonomy app. This condition was not present as part of the alleged offered contractual terms at the time of the alleged infringement, and so was not imported into any alleged contract. The first time this cause of action was ever mentioned was in the dismissal of the defendant's appeal against the parking notice.  The defendant therefore has no liability for breach of a non-existent term.  It has been noted that sometime after the date in question the signage has been updated to include this requirement. The claimant is put to strict proof to demonstrate when after XX.YY.ZZ the signage was updated. 

------------------------------

Once again, I'm grateful to anyone who offers feedback.

Coupon-mad

It all looks great to me.  A very thorough defence.

nosferatu1001

I meant for you to put the term used on the signs - not the reason given in the NtK

Fpr example, if they make it a condition that all vehicles must display a valid ticket, but then have ticketless options, you cannot possibly comply with that term. 
The cause of action is the breach of the condition on the sign . Does the sign make such a requirement? if it doesnt then you have a new first item - that displaying a ticket isnt something they tell you to do. THEN even if they claim that you msut display a ticket, you cannot in this case as it is impossible. See the reason?

LordHorrendous

Okay, here is the final version I think, and thank you once again for your excellent help (part 17 included to make sure I'm not making any stupid mistakes - @nosferatu1001 I went back over POFA and found areas in which the NtK isn't compliant, thanks for the nudge on that):
------------------------------------------------------

17:      The Defendant is not the only driver of this vehicle and the Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago.  It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention.  A compliant Notice to Keeper (‘NTK’) was not properly served in strict accordance with section 9 of the POFA.

Whilst it is admitted that the Defendant was the keeper, they were not the driver of the vehicle at the time.  Further, the mandatory requirements to establish 'keeper liability' have not been met and the Defendant is not liable in law.

18:        The claimant has no cause of action, as the stated condition given as reason for issuing the parking charge notice “If a valid permit/ticket is required, the permit/ticket must be clearly displayed (with all details clearly visible) inside the front windscreen of the vehicle at all times.” is void due to impossibility. Payment for parking was made using the "Parkonomy" mobile application, and no physical ticket is ever produced. As it is the claimant that provides this payment option, it would be perverse for them to profit from a consumer using this payment provider. 

The claimant has pursued this claim despite receiving proof that they have no cause of action.  It has been noted that during the initial appeal against the Notice to Keeper, the claimant was given all necessary information required to confirm that payment was made for the parking event in question, but appears not to have done so.  The claimant is put to strict proof to demonstrate that they acted on this information before dismissing the appeal and continuing with their claim.

Alternatively, the claimant appeared to raise a new cause of action following the defendant’s initial appeal against the parking notice, which is that the vehicles full and accurate VRM was not input correctly into the Parkonomy app. This condition was not present as part of the alleged offered contractual terms at the time of the alleged infringement, and so was not imported into any alleged contract. The defendant therefore has no liability for breach of a non-existent term. It has been noted that sometime after the date in question the signage has been updated to include this requirement. The claimant is put to strict proof to demonstrate when after XX.YY.ZZ the signage was updated. 

---------------------------------------

Unless anyone picks up on anything that needs to change, I'll go ahead and prepare this for sending:  merge with defence template; add April 2020 declaration; print; sign; scan; attach Southampton appeal and Skipton judgement; email to ccbaq.  Am I missing anything?