A PCN at claim stage with a Contract Hire Vehicle advice sought/few Q's

SophS

Hi forum, advice is sought on a few questions below and your knowledge would be grately appreciated if at all possible - or sign posting to where I might find answers.
First the details/facts are as follows.

• A PCN was issued by VCS for parking in a residential housing estate without displaying a permit.
• Driver was a visitor, vehicle is on contact hire.
• Alleged contravention was 10pm on 16th March 2019 - eg very dark.
• Area is known for preditory tactics of enforcers.
• Resident and non resident (visitor) parking is not always distinguishable from each other.
• Signs up on fence posts etc but area dimly lit/dark for 10pm
• 1st PCN NTK received by way of poor photocopy (NOT orignal) via contact hire company after 28th March on a double sided letter. (One side pcn, other side covering letter from contract hire co dated 28th March)
• Date of PCN issuance on the photocopy was 22nd March
• Date of NTD directly from VCS to Keeper on 4th April 2019.
• Demand for payment, final demand received after
• LBC dated 4th June
• Claim issuance 22nd July and acknowledged via MCOL on 30th July

Questions.

1) Should keeper have received the orignal PCN NTK or the contract hire company? Keeper only received a bad photocopy. First direct letter from PPC was the NTD.

2) As dates above seem to pass beyond the 14 days for keeper liability under POFA can this be used in defence or is there another rule when a vehicle is under contract hire?

3) Has date stamps on photographic evidence of the vehicle ever been fudged? Photo is not from an ANPR camera but a parking enforcer and driver does not recall parking in the area on the alleged contravention date but a week earlier on the 9th March...and in a non violation space.

No appeal was made, letters ignored.
Thank you kindly, all and any advice welcome

Redx

1) email a SAR to the DPO at VCS to obtain copies of all documents and pictures and data in relation to you and the hire vehicle and contract

attach a copy of the N1 claim form as proof of your ID under GDPR

2) POFA has different rules for hire vehicles , study schedule 4 and read all the edna basher info from the newbies sticky thread too, where he explains it , including timescales plus the inclusion of the hire or lease document

3) yes, parking companies have been known to doctor photos and evidence , UKPC definitely did do so

KeithP

With a Claim Issue Date of 22nd July, and having done the Acknowledgement of Service in a timely manner, you have until 4pm on Tuesday 27th August 2019 to file your Defence.

That's nearly four weeks away. Loads of time to produce a perfect Defence, but please don't leave it to the last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defence received". If not, chase the CCBC until it is.
   
6. Do not be surprised to receive an early copy of the Claimant's Directions Questionnaire, they are just trying to keep you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

Redx

I dont know if this matters but that deadline date is the Bank Holiday in england


another lease one here with similar dates


https://forums.moneysavingexpert.com/discussion/6030041/claim-form-received-from-county-court

KeithP

Redx wrote: »

I dont know if this matters but that deadline date is the Bank Holiday in england

Yes it does of course.

Above post corrected. I'll correct any others.

SophS

Thank you so much.

Just to confirm. Did you say to search Edna Basher info/posts?

Does the fact that the keeper already has a contract hire agreement (given when the vehicle was signed for from the dealership) have any bearing on requesting it from the PPC?

Redx

Correct on both counts

POFA is quite clear on its requirements

Coupon-mad

If I was to look for a defence to crib from, I'd search for these words:

defence hirer true

SophS

Redx

I have read some of the posts by Edna Basher via links the newbies thread pertaining to contract hire vehicles. Sorry ive not put in a response to this thread since starting it, 16 hours work days have had me tied up for a while but i still have some time to get this defence together.

It seems that the Edna Baster posts mostly deal with appeals and template appeal letters.
As my situation is already at claim stage and im gathering info for a defence, i cant see anything that would help me at my current stage. Have i missed something?

I have saved a few paragraphs that explain PFA 13 and 14 of Schedule 4 - is that what you were pointing me to?

Quentin

See ,#8 above for advice on searching for defences

SophS

Defence first draft.

I really struggle to understand legalese so any comments and advice appreciated if at all possible. Timing isnt great with today being a bank holiday but submission is tomorrow the 27th with today being 26th and claim date being 22nd July.

I dont fully understand the correct way to work out dates eg are saturday and sunday included as a day or not etc so if anyone can see any mistakes in reference to POFA pars from 6 onwards id be grateful.

Any inconsistency of terms, repetition and/or unecessary pars to omit would also be welcome.



In the County Court Business Centre

Claim Number: xxxxxx


Between:


Vehicle Control Services Ltd (Claimant)

-and-


(Defendant)

_________________________________________
DEFENCE
_________________________________________

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. At no point does the defendant admit to being the driver of the vehicle at the material time.

2. It is admitted that at all material times the Defendant is the hirer of vehicle registration mark xxxxx which is the subject of these proceedings.

2. The Claimant states that the vehicle appears, from the sparse evidence supplied by the Claimant, to be parked/stationery on the material date in a residential space without the display of a parking permit.

3. At no point does the evidence provided by the Claimant show this to be the case. Indeed, photographs supplied by the Claimant merely show a vehicle’s registration number and does not in anyway allude to the vehicle being parked in any prohibited parking space or street or area.

4. The claimant is therefore put to strict proof that a parking contravention actually occurred.

5.The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

6. As stated in paragraph 13(2) of POFA 2012...
"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) A copy of the hire agreement; and

(c) A copy of a statement of liability signed by the hirer under that hire agreement.

AND

Paragraph 14(2) and (3) of POFA 2012:

(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

7. The Claimant was required to send this information to the Defendant (as Keeper/Hirer) within 21 days after receiving them from the hire company XXX and no later than 49 days after the NTK was sent to the hire company, which was April 12th.

8. The Claimant failed to do this, no such documents were ever received by the Defendant.

9. As the Claimant has failed to comply with the relevant statutory requirements set out in paragraphs 13 (2) and 14 (2) of POFA 2012, the Claimant cannot therefore transfer liability from the driver to the registered hirer/keeper and the Defendant refers the court back to paragraph 1 above.

10. Should the Claimant seek to allege that any such presumption exits, the Defendant expressly denies any such presumption in law, whether statute or otherwise that the keeper is the driver. Further more, the Hirer is under no obligation to name the Driver of the vehicle at the material time.

11. The Claimant failed to include a copy of their written contract as per Practice Direction 16 7.3(1) and Practice Direction 7C 1.4(3A). No indication is given as to the Claimants contractual authority to operate there as required by the Claimants Trade Association's Code of Practice 7 1. which says;

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent)

…..AND…

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken”.

12. Vehicle Control Services Ltd are not the lawful occupier of the land. The defendant has the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim.

13. The Claimant is therefore put to strict proof they have the authority to enforce parking restrictions at the residential site in question.

14. The Claimant has at no time provided an explanation how the ‘parking charge’ on the Particulars of Claim has been calculated, the conduct that gave rise to it or how the amount has escalated from £100 to £185.00. This appears to be an added cost with apparently no qualification and an attempt at double recovery, which the POFA Schedule 4 specifically disallows.

15. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

16. The driver did not enter into any 'agreement on the charge', no consideration flowed between the parties and no contract was established.


17. The Defendant denies that the driver would have agreed to pay the original demand of £100 to agree to the alleged contract had the terms and conditions of the contract been properly displayed and accessible.

Failure to set out clear parking terms

18. The Defendant denies that the driver entered into any contract by agreeing to park at the location.

19. The Defendant relies upon ParkingEye Ltd v Barry Beavis (2015) UKSC 67 insofar as the Court were willing to impose a penalty in the context of a site of commercial value and where the signage regarding the penalties imposed for any breach of parking terms were clear - both upon entry to the site and throughout.


20.The Defendant avers that the parking signage in this matter was, without prejudice to her primary defence above, non existent or woefully inadequate, therefore the Claimant cannot rely on breach of terms within a non existent contract.

21. The Defendant therefore asks the court to strike out this meritless claim as having no lucus standi.

22. It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, the Defendant is keeping careful note of all wasted time/costs in dealing with this matter and should the case continue to trial (or in the event of the Claimant filing a Notice of Discontinuance) the Defendant will seek further costs, pursuant to Civil Procedure Rule 27.14(2)(g).

23. It is denied that the Claimant has standing to bring any claim in the absence of a contract that expressly permits the Claimant to do so, in addition to merely undertaking parking management. The Claimant has provided no proof of any such entitlement.

24. It is denied that the Claimant has any entitlement to the sums sought.

25. The Court is invited to dismiss the Claim, and to allow such Defendant’s costs as are permissible under Civil Procedure Rule 27.14.

26. The Defendant asks that the court gives consideration to exercise its discretion to order the case to be struck out under CPR Rule 3.4, for want of a detailed cause of action and/or for the claim having no realistic prospects of success.

27. In the event the claim progresses, as an unrepresented litigant in person, the defendant reserve the right to alter, vary and add to this defence or reply to any further particulars of claim/documents the Claimant may provide.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true.

Signed