Claim Form but not the driver

Crystaltips76

Quick update: I've emailed a SAR to the DPO at Phoenix Parking Solutions. I emailed them and asked for the contact details and amazingly I heard back from them quickly.

If anyone else is looking for this info the name of the DPO is Caroline and the email address is: data@phoenix-parking.info

I've also written to QDR asking them to discontinue the claim as nosferatu1001 suggested.

I will now prepare my defence for the claim form. I've read a lot of the defence examples on the Newbies thread but most of the information doesn't apply to my situation. Is it enough to just say that I have disclosed the name of the driver and as the keeper am no longer liable under POFA 2012?

Crystaltips76

I have written the following by way of defence. Would you mind reading through it to see if what I have written is ok and/or if there is anything else you think I should add before sending it off? Many thanks in advance

The Defendant is 'Company Name' and it is admitted that the company is the registered keeper of the vehicle. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:

1). 'Company Name' is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that Defendant company has nominated the Driver and that the Claimant knew the name and address of the Driver before filing a County Claim against the Defendant. Therefore, the Defendant is not liable for the claim and the Claimant has lost any right to claim from 'Company Name' as keeper. This non-compliance with POFA 2012voids any right to ‘keeper liability’.

2). As a body corporate,'Company Name' could not possibly have been the driver of the vehicle so cannot be held liable ‘as driver’ either. Further, there is also no possibility of vicarious liability by 'Company Name' to the Claimant, since there was no omission, contravention nor breach of contract by the driver.

3). Even if the Defendant company is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that any added fees are simply numbers made up out of thin air and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

4). It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, 'Company Name' is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming the loss to the company of at least half a day's work for myself or another employee/Director, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.

5). The court is invited to strike out the claim, due to no cause of action nor prospects of success.

6). The facts and information in this defence are true and the Defendant company is not liable for the sum claimed, nor any sum at all. The employee submitting this defence works for and is authorised to submit this defence by 'Company Name'.

KeithP

Crystaltips76 wrote: »

...is anything else you think I should add before sending it off?

You have loads of time to file the Defence.

As I said earlier...

...you have until 4pm on Tuesday 27th August 2019 to file your Defence.

Do not rush this part of the process - you only get one go at a Defence.

Crystaltips76

KeithP wrote: »

You have loads of time to file the Defence.

As I said earlier...


Do not rush this part of the process - you only get one go at a Defence.

Thanks KeithP

I know I have a bit of time to do this but I am on annual leave from next Friday until 27th August so I would really like to get this defence in before then. Don't want to be worrying about it on holiday!

The_Slithy_Tove

Even though the No Liability point should kill it, it's always worth throwing the kitchen sink at it, in case that point fails, another may succeed,

Should really include all the normal stuff around poor signage, no contract with landholder, unclear terms, etc. etc.

Crystaltips76

The_Slithy_Tove wrote: »

Even though the No Liability point should kill it, it's always worth throwing the kitchen sink at it, in case that point fails, another may succeed,

Should really include all the normal stuff around poor signage, no contract with landholder, unclear terms, etc. etc.

Thanks Slithy Tove - is it still the case to say all of that even if it isn't true? The contract with landholder might be the case and the terms may be unclear but it don't think poor signage will work as a defence.

I don't know the circumstances of why my colleague parked in this private car park and thought they didn't need to pay but looking at the car park on Google Maps it is very well signposted, a big sign on the entrance clearly says it is for NatWest customers only and there are Pay & Display signs and machines all over the car park! Is it worth putting this in the defence anyway just in case it turns out something was awry at the time, like ticket machines not working, signs obstructed etc...

Unfortunately the colleague in question is on paternity leave at the moment so I am unable to find out the facts from them.

Fruitcake

Crystaltips76 wrote: »

Thanks Slithy Tove - is it still the case to say all of that even if it isn't true? The contract with landholder might be the case and the terms may be unclear but it don't think poor signage will work as a defence.

I don't know the circumstances of why my colleague parked in this private car park and thought they didn't need to pay but looking at the car park on Google Maps it is very well signposted, a big sign on the entrance clearly says it is for NatWest customers only and there are Pay & Display signs and machines all over the car park! Is it worth putting this in the defence anyway just in case it turns out something was awry at the time, like ticket machines not working, signs obstructed etc...

Unfortunately the colleague in question is on paternity leave at the moment so I am unable to find out the facts from them.

If the sign at the entrance is for NatWest customers only, then it is a forbidding sign and cannot offer a contract to park to a non-NatWest customer. On that alone, inadequate signage should be included as a defence point.

What about font size, and warning what ANPR data (if appropriate) will be used for? Is the charge for failure to comply in large lettering?
Are any of the signs damaged, high upon poles, hidden by trees or tall vehicles?

Do the scammers have planning permission for cameras and advertising consent for signs? Not having the latter is a criminal offence.
When planning consent was approved, was it only for NatWst customers or for anyone to park and use other nearby shops in order to support the local economy?

Calls to the council planning department/online searches are needed if you don't know the answers.

The regulars don't suggest things for fun, there is usually a very good reason to include appeal/defence points that at first may look unnecessary until you look into the reasons for including them.

When you aver something, the scammers must refute it. If thy can't, or don't then it can assume that the defendant's point s valid.

Crystaltips76

The_Slithy_Tove wrote: »

Even though the No Liability point should kill it, it's always worth throwing the kitchen sink at it, in case that point fails, another may succeed,

Should really include all the normal stuff around poor signage, no contract with landholder, unclear terms, etc. etc.

Hi The Slithy Tove, is this better? I've taken all of the advice into account and have rewritten my defence hopefully including all of the points. I have been able to speak to my colleague and he claims that there was no PCN left on the vehicle so I have added something about that too. Does this read better?:

The Defendant is (Company Name) and it is admitted that the company is the registered keeper of the vehicle. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:

1) (Company Name) is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that Defendant company has nominated the Driver and that the Claimant knew the name and address of the Driver before filing a County Claim against the Defendant. Therefore, the Defendant is not liable for the claim and the Claimant has lost any right to claim from (Company Name) as keeper. This non-compliance with POFA 2012 voids any right to ‘keeper liability’.

2) The Particulars of Claim does not state whether they believe the Defendant is the keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

3) It is denied that a 'parking charge notice' ('PCN') was affixed to the vehicle on the material date given in the Particulars and therefore the driver was not served with a document that created any liability for any charge whatsoever. The Claimant is put to strict proof.

4) Accordingly, it is denied that any contravention or breach of clearly signed/lined terms occurred, and it is denied that the driver was properly informed about any parking charge, either by signage or by a PCN.

5) 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.

6) As a body corporate, (Company Name) could not possibly have been the driver of the vehicle so cannot be held liable ‘as driver’ either. Further, there is also no possibility of vicarious liability by (Company Name) to the Claimant, since there was no omission, contravention nor breach of contract by the driver.

7) Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. The signage at the entrance to the car park reads: For the use of NatWest Customers Only' which is a forbidding sign but then offers a contract to park to a non-NatWest customer which is contradictory.

8) The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

9) The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

10) 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 £124. The claim includes an additional £86, for which no calculation or explanation is given. It is submitted that any added fees are simply numbers made up out of thin air and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

11) It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, (Company Name) is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming the loss to the company of at least half a day's work for myself or another employee/Director, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.

12) In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts and information in this defence are true and the Defendant company is not liable for the sum claimed, nor any sum at all. The employee submitting this defence works for and is authorised to submit this defence by (Company Name).

Crystaltips76

Would somebody be able to read through my draft defence posted above and make any suggestions on how I can improve it please?

Castle

Crystaltips76 wrote: »

10) 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 £125. The claim includes an additional £85, for which no calculation or explanation is given. It is submitted that any added fees are simply numbers made up out of thin air and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

If the NTK said £125 then it would differ from the £100 NTD, (the ticket left on the car); so again they have failed to comply with POFA.