County court letter

KeithP

Gracious2 said:

Hi all,

Do witness statement 14 days include weekends?

Does it say 14 days or 14 working days?

Gracious2

Just 14 days ... Thank you

Gracious2

Hi all, 
Claimant WS received. I have now drafted my WS in response to their arguments.  NTK sent after I requested for SAR  hasn't fully complied with POFA para 4: invited me to pay or name driver  - but hasn't stated para 8(f).  Please have a look at my WS. 
Recap -  x 3 windscreen give - overstay  - pay and display - however, parking is free for x 2hours.  I'm defending as a keeper. I honestly haven't seen any of the notices sent as was living/registered a different address (have proof). 

WITNESS STATEMENT

1. I can attest that the facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

2. I can confirm that I was the registered keeper of the vehicle in question in this case at the time, and this is my Witness Statement from the best of my knowledge.

3. The paragraph numbers mentioned related to the witness statement filed by the claimant…..

4. Re #3: The claimant submits that the defendant is liable for parking charges of the vehicle which has incurred the charges referred in the claimant WS.

5. I denied this as the claimant has no knowledge of who the driver was on both occasions. I can attest I was not the driver. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the defendant as the driver rather than keeper, then they must produce strict proof.

6. Re #8: the claimant states that signage at the site are clearly visible and inform the driver of the parking terms and conditions.

7. I have never been on this parking site nor aware of their parking terms and conditions. I was never shown the alleged signage contract the claimant trying to hold me liable for until this WS where they sent photos. (I have requested for the Subject Access Request (SAR) on the  …….2019 when I received the claim court as I wanted this evidence before I filled my defence on the …..2019 but I was only provided with original notice to keeper and photos of the car).

8. Re #8: the claimant WS further states that the signage has been ‘’audited and approved’’ by the International Parking Community (IPC). However, under the supposed contract, shown in photo 1 which the claimant claims the defendant entered the contract terms mention the ‘’Independent Parking Committee’’ which is no longer in existence. Therefore, the claimant cannot claim to be a member of the International Parking Community, yet the signage says otherwise.

9. As the ‘’Independent Parking Committee’’ is not a member of a Governmental Accredited Trade Organisation as required by Section 56, Schedule 4 of the Protection of Freedoms Act 2012. I believe the claimant obtained my details as registered keeper without following proper protocol as under the contract terms, Therefore, details for the registered keeper were obtained unlawfully.

10. Re #10: The claimant WS refers to Elliot vs Loake (1982) stating that “the registered keeper of a vehicle may be presumed as the driver unless they provide sufficient evidence that they were not the driver’’.

11. This is an incorrect representation of Elliott v Loake (1982) which has no application whatsoever to this case. You cannot dispense with the statute and instead cite, an irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver. I regarded this as evidence of further misuse of the Keepers data, breaching the Data Protection Act and creating a tort.

12. This was further confirmed by Barrister Henry Greenslade no such presumption exists in UK law. I as the keeper is under no obligation to disclose the identity of the driver, and the onus is on the Claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified.

13. Re #11-13: The claimant states that they “served the defendant with the relevant notices and that the defendant is pursuant as a registered keeper under schedule 4 of the Protection of Freedom Act (Act 2012) and that keeper failed to name the driver. However, keeper liability was not fully established.

14. The Claimant seeks to apportion blame to a keeper for not responding to their letters and for not naming the driver. I did not respond to notices sent by …. because I have not seen any letters as I was living at a different address. Also, I was not the driver, and these were not offences or fines from an Authority like a Council, there was no reason or the obligation upon a registered keeper to ‘appeal’

15.  The Notice to Keeper provided in the claimant WS bundle is not compliant with the requirements of PoFA (2012). I set out below a non-exhaustive list of reasons why NPE’ Notice to Keeper failed to comply with Schedule 4 of POFA:

1. a)    The driver of the vehicle has not been identified. For the operator to transfer liability for the charge from the driver of the vehicle to the registered keeper, they must with the strict requirements set out in the Protection of Freedoms Act 2012 (PoFA).

b)    Although Schedule 4 of the Protection of Freedoms Act 2012 (“PoFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

c)     Contrary to the requirements of Paragraph 8(2)(f), this NTK fails in the prescribed requirement - in exact words and with the correct deadline - to:

i)              ‘’warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;''.

See No:16 - 22 below post as unable to post long WS

Gracious2

WS Continues..... 

16.  I submit that as s registered keeper who was not driving and who only received a county court claim letter which is never my concern nor liability, I have no knowledge of notices being sent.

17.  This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL1, an extract from the POPLA Annual Report 2015.

18. Barrister and parking law expert Henry Greenslade the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel were under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 (page13) which confirms that there is no presumption in law that the registered keeper was the driver of the vehicle and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. Operators should never suggest of the sort.  Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time No adverse inference can be drawn from my choice not to respond to what appeared to be spam. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may, therefore, be highly relevant.

19. Re #17: The claimant WS states that ‘’the sign on the land are clear and unambiguous’’. However, I wholly disagree with this statement because as it can be seen in photos of the signage of the contract ‘a valid ticket must be displayed clearly on the windscreen (NOT SURE HOW TO ARGUE THIS – signage appears to be clear)

20. Re #22 the claimant WS states quoted the of Parking Eye -v- Beavis (2015) it was held that the charge of £85 was neither extravagant nor unconscionable. I dispute this statement and believe that the amount demanded from the keeper is excessive and unconscionable and especially compared to the level of Penalty Charge Notice issued by the local Council. The attention of the court is drawn to para. 8 (g) of Schedule 4 Protection of Freedoms Act 2012 which sets out that the creditor must inform the keeper of any discount offered for prompted payment. The discount should be at least 40% of the full charge as high lighted in the BPA Code of Practice. Therefore, the NTK does not comply with these conditions of POFA Act 2012.

21. Re #26: The claimant WS highlighted that if charges are not paid within 28 days or further days are allowed after a Notice to Keeper then the charge will become overdue and a reasonable sum amount of £60 will be added.

22. However, the copy Notice to Keeper sent to me when I requested the Subject Access Requested and the one provided in the claimant WS folder failed to warn me as a registered keeper that if the parking charges remain outstanding after 28 days, and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that ‘’creditor’’ will be entitled to recover the parking charges from the registered keeper. Therefore, I cannot be held liable for the alleged debt of the driver because of the Notice to Keeper did not comply with the conditions in the Protection of Freedom Act, (Act 2012) paragraph 8 (f).

23. In conclusion, I am an unrepresented consumer who has never attended the County The court before and was, not the driver, so I have no knowledge of the events, or signage terms and conditions. I strongly object to this Claimant.
.
24. The Court is invited to dismiss this Claim and to allow my costs which will be submitted separately and in a timely manner, depending upon whether a hearing takes place. I firmly believe that the claimant has no right to pursue me as the registered keeper.

Le_Kirk

4. Re #3: The claimant submits that the defendant is liable for parking charges of the vehicle which has incurred the charges referred in the claimant WS.

You need to explain what this is for the court.  You know you are rebutting the claimant's WS but the judge won't unless you explain it.

(I have requested for the Subject Access Request (SAR) on the  …….2019 when I received the claim court as...........

This is clumsy, instead try this: -

(I have requested for the submitted a Subject Access Request (SAR) on the  …….2019 when I received the claim court as.............

9. As the ‘’Independent Parking Committee’’ is not a member

I believe it is: -

9. As the ‘’Independent Parking Committee’’ International Parking Community is not a member

22. However, the copy Notice to Keeper sent to me when I requested the Subject Access Requested 

Adjusted to this: -

22. However, the copy Notice to Keeper sent to me when I submitted requestedthe Subject Access Requested 

Coupon-mad

Remove 8 & 9 about the IPC, as that is semantics and the IPC were using both names.
Move #10 up (to be #8) then add a new #9 and #10, one is the exhibit of Henry Greenslade's words, and the other is of course, the persuasive appeal case of Excel v Smith - which is the one everyone uses to show that it is wrong for a court to be led into wrongly thinking that a keeper can be assumed to be the driver or that they somehow entered into an agency relationship with the driver!

Gracious2

Hi all, 
Thank you @Le_Kirk & Coupon-mad for your help.
I have made amendments. Any final advice? 

WS

1. I can attest that the facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

2. I can confirm that I was the registered keeper of the vehicle in question in this case at the time, and this is my Witness Statement from the best of my knowledge.

3. The paragraph numbers mentioned related to the witness statement filed by the claimant…

4. Re #3: The claimant submits that the defendant is liable for parking charges of the vehicle which has incurred the charges referred in the claimant WS. This is a false statement as the Claimant has failed to provide any evidence that i was the driver of the vehicle at the time in question and there is no presumption in law that the Keeper is the Driver of the Vehicle.

5. I denied this as the claimant has no knowledge of who the driver was on both occasions. I can attest I was not the driver. The claimant has offered nothing in the way of evidence as to the identity of the driver and if they wish to pursue the defendant as the driver rather than keeper, then they must produce strict proof.

6. Re #8: The claimant states that signage at the site are clearly visible and inform the driver of the parking terms and conditions.

7. I have never been on this parking site nor aware of their parking terms and conditions. I was never shown the alleged signage contract the claimant trying to hold me liable for until this WS where they sent photos. (I submitted  a Subject Access Request (SAR) on the  …….2019 when I received the claim court as I wanted this evidence before I filled my defence on the …..2019 but I was only provided with original notice to keeper and photos of the car).

8. Re #10: The claimant WS refers to Elliot vs Loake (1982) stating that “the registered keeper of a vehicle may be presumed as the driver unless they provide sufficient evidence that they were not the driver’’.

9. However, this is an incorrect representation of Elliott v Loake (1982) which has no application whatsoever to this case. You cannot dispense with the statute and instead cite, an irrelevant criminal case of Elliott v Loake, which turned on compelling forensic evidence and made no assumption whatsoever, that a keeper was the driver. I regarded this as evidence of further misuse of the Keepers data, breaching the Data Protection Act and creating a tort.

10. This was further confirmed by Barrister Henry Greenslade no such presumption exists in UK law. I as the keeper is under no obligation to disclose the identity of the driver, and the onus is on The claimant to prove their case. It is not, as the Claimant suggests in their Witness Statement, a reverse burden of proof. The POFA Schedule 4 was enacted in 2012 to overcome the issue cited by the BPA, that parking companies were unable to pursue drivers who were not identified.

11.  An appeal at Manchester County Court on Thursday 8th June 2017 (Smith V Excel Parking Services) before His Honour Judge Smith, no. (C0DP9C4E/M17X062 See Exhibit …) stated that POFA 2012 is precisely where in law, an operator can hold a keeper liable for unpaid parking charges, but only if the claimant complies with PoFA 2012 Act

12, Re #11: The claimant WS quoted PoFA Act 2012 para 4(1) ‘’ the creditor has the right to recover any unpaid charges from the keeper of the vehicle’’. However, keeper liability was not fully established under PoFA Act by the claimant.  

13. The Notice to Keeper provided in the claimant WS bundle’s and in the SAR is not compliant with the requirements of PoFA (2012). I set out below a non-exhaustive list of reasons why NPE’ Notice to Keeper failed to comply with Schedule 4 of POFA:

a.     The driver of the vehicle has not been identified. For the operator to transfer liability for the charge from the driver of the vehicle to the registered keeper, they must with the strict requirements set out in the Protection of Freedoms Act 2012 (PoFA).

b.     Although Schedule 4 of the Protection of Freedoms Act 2012 (“PoFA”) gives a creditor the right to recover any unpaid parking charges from a vehicle’s keeper, this right is strictly subject to statutory conditions being met by the operator, without which the right to 'keeper liability' does not exist.

c.     Contrary to the requirements of Paragraph 8(2)(f), this NTK fails in the prescribed requirement - in exact words and with the correct deadline - to:

d.     ‘’warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— ...the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and...the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;''.

Gracious2

WS Continues......

14.  I submit that as s registered keeper who was not a driver and who only received a county court claim letter which is never my concern nor liability, I have no knowledge of notices being sent.

15.  This is not an obligation or a failure on my part; I had no reason to respond and this is supported by my Exhibit IL1, an extract from the POPLA Annual Report 2015.

16. Barrister and parking law expert Henry Greenslade the ‘POPLA’ (‘Parking on Private Land Appeals’ independent service offered by the BPA) Lead Adjudicator from 2012 – 2015 and Excel were under that Trade Body at the time of the first mentioned in this claim. I adduce as evidence Mr Greenslade’s opinion in the POPLA Annual Report 2015 (pg. 12-13) which confirms that there is no presumption in law that the registered keeper was the driver of the vehicle and that keepers do not have any legal obligation whatsoever, to name drivers to private parking companies. Operators should never suggest anything of the sort.  Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time No adverse inference can be drawn from my choice not to respond to what appeared to be spam. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may, therefore, be highly relevant.

17. Re #17: The claimant WS states that ‘’the sign on the land are clear and unambiguous’’. However, I wholly disagree with this statement because as it can be seen in photos of the signage of the contract ‘a valid ticket must be displayed clearly on the windscreen (NOT SURE HOW TO ARGUE THIS – signage appears to be clear)

17. Re #13: The claimant states that they “served the defendant with the relevant notices and that the defendant is pursuant as a registered keeper under schedule 4 of the Protection of Freedom Act (Act 2012) and that keeper failed to name the driver. The claimant seeks to apportion blame on me as a keeper for not responding to notices sent and for not naming the driver.

18. I did not respond to notices sent because I did not see any letters/notices that were sent as I was living at a different address. Also, I was not the driver, and these were not offences or fines from an authority like a Council, there was no reason or the obligation upon a registered keeper to name the driver nor appeal.

19. Re #22 the claimant WS states quoted the of Parking Eye -v- Beavis (2015) it was held that the charge of £85 was neither extravagant nor unconscionable. I dispute this statement and believe that the amount demanded from the keeper is excessive and unconscionable and especially compared to the level of Penalty Charge Notice issued by the local Council. The attention of the court is drawn to para. 8 (g) of Schedule 4 Protection of Freedoms Act 2012 which sets out that the creditor must inform the keeper of any discount offered for prompted payment. The discount should be at least 40% of the full charge as highlighted in the BPA Code of Practice. Therefore, the NTK does not comply with these conditions of POFA Act 2012.

20. Re #26: The claimant WS highlighted that if charges are not paid within 28 days or further days are allowed after a Notice to Keeper then the charge will become overdue and a reasonable sum amount of £60 will be added.

21. However, the copy Notice to Keeper sent to me when I submitted the SAR and the one provided in the claimant WS folder both failed to warn me as a registered keeper that if the parking charges remain outstanding after 28 days, and the name and address of the driver has not been given, or otherwise known to the person entitled to the parking charge, that ‘’creditor’’ will be entitled to recover the parking charges from the registered keeper. Therefore, I cannot be held liable for the alleged debt of the driver because of the Notice to Keeper did not comply with the conditions in the Protection of Freedom Act, (Act 2012) paragraph 8 (f).

22. In conclusion, I am an unrepresented consumer who has never attended the County The court before and was, not the driver, so I have no knowledge of the events, or signage terms and conditions. I strongly object to this Claimant.
.
23. I firmly believe that the claimant has no right to pursue me as the registered keeper and invited the court to dismiss this Claim. I have therefore put forward a statement of costs in accordance with CPR 27.14(g) for consideration by the Court to allow my costs.