Complicated defence - multiple companies

KeithP

You've got that almost right.

As a Lay Representative, you can do all the talking on behalf of the Defendant, but the Defendant must also be present.

The Defendant may be directly asked questions by the Judge or the Claimant and of course the Defendant must answer truthfully.

Coupon-mad

- I can accompany her to the hearing, but she must be there and do all the talking

No. As above from KeithP and as I already posted:

But you can go with her and speak for her as a lay rep (search the forum).

- The fact she wasn't driving is no defence

It is a defence, if you/she can show that the POFA was not complied with.

The driver does NOT have to be named at all. She should defend as keeper and say the driver was not her, but was a family member. No need to say who.

nosferatu1001

You odnt need something from the PPC saying it was cancelled; their PRINCIPAL INSTRUCTED THEM to cancel, so they MUST cancel it - and you can rely on that email trail.

LaserBlue

With regards to POFA, I've lost the original paperwork and ticket as we thought it was cancelled. We only have the emails, LBCC and court claim form.

So we are doing a SAR to get the original paper work. Any tips on this?

Also the LBCC is very sketchy and doesn't say that the PCN number is, or time and duration of parking. Can a rubbish LBCC be part of a defence, or too late?

Big_Boi

LaserBlue wrote: »

So we are doing a SAR to get the original paper work. Any tips on this?

Take a look at the NEWBIES thread. There is an entire section dedicated to SAR.

nosferatu1001

The LBC can be crappy and all it means is they didnt do well at complying with the PAP. Some Judges are hot on this, some not. It is not a defence.

LaserBlue

Here is my draft defence. Feedback would be most welcome, thanks!

Preliminary

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. Each and every allegation in the Particulars of Claim is denied.

2. 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.

3. Background

3.1 It is admitted that at all material times the Defendant was the owner and registered keeper of the vehicle in question.

3.2 The vehicle was stopped for a few minutes on private land to undertake a delivery at XXXXX using the loading bay and was issued a PCN (“Parking Charge Notice”) by the Claimant for breach of contract.

3.3 The Claimant's terms and conditions advertised on the loading bay at the time stated: “No parking at anytime”.

3.4 The Defendant received an email from the landowners’ agent to confirm that the Claimant has been instructed to update the ambiguous signage and cancel the Defendant’s PCN.

3.5 The Defendant contacted the Claimant using their appeal process in an attempt to highlight the ambiguous signage and futility of this claim.

3.6 The Claimant has ignored communication from the Defendant and continues to harass the Defendant for payment for over four years.

4. Authority to use the loading bay

4.1 At the time of the alleged breach, the reception staff verbally allowed the vehicle access to the loading bay to enable loading/unloading on more than one occasion to more than one vehicle. 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.

4.2. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners 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’!which also adduced a business car park decision, analogous to this present case.

4.3 After the alleged breach, the landowner’s agent gave written confirmation to the Defendant that the PCN associated with the alleged breach has been cancelled.

4.4 It is the Defendants view that the Claimant has wilfully ignored instructions from the landowner’s agent to allow a 20 minute grace period for loading/unloading and cancel the PCN.

4.5 If it can be proven that "parking" has occurred The Claimant did not comply with the IPC code of practice (Part B 15.1), regarding grace periods: “Drivers should be allowed a sufficient amount of time to park and read any signs so they may make an informed decision as to whether or not to remain on the site.” 10 mins is generally accepted to be the minimum amount of time to read and understand a contract and make a decision to park or not to park.

5. Insufficient signage

5.1 It is denied that the claimant's signage set out the terms for using the loading bay in a sufficiently clear manner which would be capable of binding any reasonable person reading them. (Photograph evidence of signboards are available to be provided upon request.)

5.2 The claimant's signs did not mention anything regarding "loading" or "unloading" so it is impossible for any contract to be established with the Defendant. The claimants sign only mentions "parking" and at no time was the vehicle "parked". (Photograph evidence of signboards are available to be provided upon request.)

5.3 At the time of the alleged breach, the Claimant’s sign was in small print, the terms were illegible and a delivery driver would only be bound by the large writing (“LOADING ONLY”) on the road, which authorises unloading/deliveries in this area and mentions no stated charges. (Photograph evidence of loading bay markings are available to be provided upon request.)

6. Harassment

6.1 Despite instruction from the landowner’s agent to update the signage and cancel the PCN, the Claimant continues to use the Defendant’s personal details to pursue the claim when it has no right to keep the Claimant’s personal details. This has caused considerable stress to the Claimant.

6.2 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 £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

7. PoFA 2012

7.1 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.

7.2 The driver has not been evidenced on any occasion.

7.3 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.

8. The Court is invited to make an Order of its own initiative, dismissing this claim in its entirety and to allow such Defendant's costs as are permissible under Civil Procedure Rule 27.14 on the indemnity basis, taking judicial note of the wholly unreasonable conduct of this Claimant, not least due to the abuse of process in repeatedly attempting to claim fanciful costs which they are not entitled to recover.


Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

Date and signature

Umkomaas

6. Harrisment

Spelling check needed.

KeithP

Since you state that the signs say “No parking at anytime”, I would've expected to see mentioned that the signs are forbidding signs and are therefore incapable of being the basis of a contract.

A sign with those words on it clearly does not offer a contract to park.

LaserBlue

I did a quick edit for spelling and typos, so please refresh. Thanks.