This is a tough one!

Quentin

There seems no definite line between the driver of the vehicle and the defendant!

Eg what has the defendants normal practice of displaying the permit correctly got to do with this??

Blazkowicz

So that section was elaborated from Coupon-Mad's paragraph where it is mentioned that the permit was displayed within the vehicle. I feel it's necessary to assert this, as it could potentially attend to a Judge ruling simply "your permit wasn't displayed - pay them. End of". I am keen to include within my defence the facts regarding the permit being displayed and visible, as well as clear mention of the other PCN involving the PPC's photographic evidence of said permit! If this is not mentioned, I could miss important facts that further 'indict' the PPC.

Quentin

Your defence is the defendant was not the driver, so isn't it irrelevant to the claim what the defendant does do when parking??

Blazkowicz

Part of my defence is mentioning that the driver has not been identified sufficiently in the NTK, this is so POFA can limit the costs that can be sought in court.
As the main argument of the PPC is that a permit was not displayed and thus there was breach os contract, I wanted to include in the defence that it was displayed.
I was the driver, but in all advice so far I have been told not to state this anywhere, so that the POFA defence section could apply.

Blazkowicz

As further background to this case - here is the defence that I put forward in the Pre-Action Protocol.
Reading it back I feel that it may inadvertently admit that I was driving:

Thank You for your letter dated XXXXXXXXX following my response to your Letter Before Claim.

I strongly dispute your statement that the driver's “only right…to enter the land in question are on the terms and conditions which apply”. This is simply not the case. I had an existing rental agreement directly with the freeholder for the car parking space the car was was parked in. I have repeatedly asserted this and provided proof.

I take issue with the following assertion: "It is unnecessary to apply an analysis of offer, acceptance and consideration quite simply because the contract was formed on mutual promises. By parking your vehicle in the car park you have entered into a unilateral contract with our Client. Acceptance does not have to be communicated, the act of parking your vehicle is acceptance." At the date in question, I was the landholder. I entered into a contract with the freeholder for the parking space, which was duly paid. Your client has nothing to offer as they are not the freeholder nor the landholder. They are, in fact, a trespasser on my land on the date in question.

I have again attached a copy of the relevant invoice and confirmation from the freeholder that this invoice was paid in full.

I also dispute a number of further points in your letter. They are, however, irrelevant to the central issue that this space was rented and the right to enter the land and park in this space was expressly sanctioned by the freeholder who had a commercial interest in the rental of the parking space. Your client is currently interfering with this commercial interest and thus jeopardizing it. The fact that your client evidently does not operate a white-list for the landholders on this site is considerably unreasonable and should this proceed further I will invite the court to recognise this.

For the avoidance of doubt, I will not make any payment. Payment for this space was made in full.

Continued harassment from your company will be considered both vexatious and unreasonable. Should your client continue to legal action, I will counter claim for their trespass on the land that I had rented as landholder, using the value of their PCN as the basis for the counterclaim.

Redx

In which case defend as driver and forget about pofa

Blazkowicz

Roger that - will change the POFA stuff now. In retrospect - it is not so necessary and serves double duty because Coupon-Mad's section covers 'overcharging'.

Redx

Sometimes a judge will look favourably on honesty and poorly at evasiveness, so there are times like in residential cases where you dump pofa and speak as a witness and participant, there is one case on here where a judge adjourned the case due to pofa issues and the defendant refused to name the driver

Blazkowicz

Redx you have answered a question that's been in my mind throughout the advice i've taken:
"What if the Judge simply reads it, looks at me and says "Were you the driver?""
I would have to say "yes", and all at once that part would be irrelevant.
Or I would have to refuse to answer a Judge...

Redx

This has been covered numerous times and any answers other than yes or no are evasive, like, respectfully I do not wish to answer, or I am not sure your honour due to the amount of time that has passed

Plus if the claimant has written evidence that you admitted you were driving then it puts you on the back foot and ruins your credibility

A driver can talk about what happened as a witness to events, no hearsay, where primacy of contract etc can override any parking signs or MA contracts etc

Legal eagles on here will sometimes tell people to stop hiding behind pofa and tell it like it was, as a witness and participant

Pofa protects a keeper who wasn't the driver

It may be misused to protect a driver/keeper in a case where pofa is the strongest defence

It should not be used where better arguments prevail, or if the defendant is an admitted driver