Real or fake N1 Form - No POC?

Umkomaas

Don’t put anything in your Defence, or leave anything out, that in any way (however small) assists the Claimant’s case against you. As Le_Kirk says, it’s they who must prove their case.

Coupon-mad

There are actually two drivers on the car and I'm 90% sure that I wasn't the driver at the time although I genuinely can't be certain, which is the reason I added that part.

OK so make it more clear, saying 90% certain you did not park as you were with a partner/family member and believe they did.

Is this Civil Enforcement then, like your Defence heading has? How do they operate a residential car park with cameras that can't see permits?

Not sure if their photo would show a driver or not.

It won't - but sending a SAR to them would have shown you all their photos.

With regards to promissory estoppel, I did look into it but was concerned that as there was correspondence between myself and the estate agents that this could be used against me (i think in my desperation to gain a letter from them proving my attendance for the land owner, I may have referenced not wanting to implicate them). So I'm worried that if they involve the estate agent, this could come to light.

They can't involve the letting agent.

Use promissory estoppel, the driver was acting on a promise.

Use Jopson v Homeguard as well as this was not parking/leaving the car for a period of time and the appeal case shows that life in a block of flats would be unworkable if every brief authorised visitor was penalised for stopping for a few minutes.

Not being the driver also means you can cite the POFA and put the C to strict proof that they have complied with it - see Johnersh's residential example of a defence that covers all of this, AFAIK. It may be linked in the NEWBIES thread still?

Redx

And stop making assumptions , put the claimant to strict proof , especially on landowner authority , it should always be included and queried , don't do their job for them. Your task as defendant is the old ABC adage the police use

Accept nothing
Believe nothing
Check everything

Le_Kirk

Coupon-mad wrote: »

Not being the driver also means you can cite the POFA and put the C to strict proof that they have complied with it - see Johnersh's residential example of a defence that covers all of this, AFAIK. It may be linked in the NEWBIES thread still?

HERE is a link (still available in NEWBIE sticky post # 2) to the defence by Johnersh.

GetSmarterVictoria

Coupon-mad wrote: »

OK so make it more clear, saying 90% certain you did not park as you were with a partner/family member and believe they did.

Is this Civil Enforcement then, like your Defence heading has? How do they operate a residential car park with cameras that can't see permits?

Use promissory estoppel, the driver was acting on a promise.

Use Jopson v Homeguard as well as this was not parking/leaving the car for a period of time and the appeal case shows that life in a block of flats would be unworkable if every brief authorised visitor was penalised for stopping for a few minutes.

Not being the driver also means you can cite the POFA and put the C to strict proof that they have complied with it - see Johnersh's residential example of a defence that covers all of this, AFAIK. It may be linked in the NEWBIES thread still?

Thank you for all of this! It's very useful and I'll look over the case now.
The car park isn't however residential (it was 12 spaces at the back of retail premises where the estate agent is located) - will this have a bearing on using that case for my defence? I realise that I'm posting this post reading it mind you so forgive me if it's obvious!

Coupon-mad

(it was 12 spaces at the back of retail premises where the estate agent is located)

Seems to add more weight to a promissory estoppel argument!

GetSmarterVictoria

Coupon-mad wrote: »

Seems to add more weight to a promissory estoppel argument!

Thank you! I've added it in.

I have to say that after researching all of this for the past month I realise now why regular posters advise to research heavily and read all of the cases as once (I'm not saying that I understand any of it ) you start to work on the defence you get to understand that you're just selecting relevant paragraphs when putting these things together.

Which I'm now hoping that I've done successfully (although feels like mash of many arguments)...I swear that if following this, I successfully rid my life of this headache, I am donating to charity in the names of all the posters that have helped me in this thread. It's much appreciated!!

My revised defence:

Issue Date of Claim: 23/09/19

IN THE COUNTY COURT

CLAIM No: CXXXXXX

BETWEEN:

CIVIL ENFORCEMENT LTD (Claimant)

-and-

XXXX XXXXXX (Defendant)

________________________________________
DEFENCE
________________________________________


1. The Defendant was the registered keeper of vehicle registration number XXXXXXX on the material date. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. 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.

3. It is admitted that on 24/11/2018 the Defendant's vehicle was parked at [location] in a parking bay owned by xxxx estate agents for a pre-booked appointment to sign a tenancy agreement. The Defendant was a valid visitor and was advised by staff prior to attendance to park in one of their spaces. The Defendant relied on this advice and under Promissory Estoppel the Claimant should be thus estopped on their claim.

4. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

4.1. The Claimant has provided no evidence 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")

4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

4.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

4.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

It is not admitted that the Claimant has complied with the relevant statutory requirements.

4.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

5. The Defendant notes the Claimant's failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation. The N1 form being the initial form of contact made by the Claimant.

6. At the time of the material events the signage was deficient in number, distribution, wording and lighting to reasonably convey a contractual obligation.

7. The Protection of Freedoms Act 2012, Schedule 4 (POFA) makes it clear that the will of Parliament regarding parking on private land is that the only sum potentially able to be recovered is the sum in any compliant 'Notice to Keeper' (and the ceiling for a 'parking charge', as set by the Trade Bodies and the DVLA, is £100). This also depends upon the Claimant fully complying with the statute, including 'adequate notice' of the parking charge and prescribed documents served in time/with mandatory wording. It is submitted the claimant has failed on all counts and the Claimant is aware their artificially inflated claim, as pleaded, constitutes double recovery.

8. Judges have disallowed all added parking firm 'costs' in County courts up and down the Country. In Claim number F0DP201T on 10th June 2019, District Judge Taylor sitting at the County Court at Southampton, echoed earlier General Judgment or Orders of DJ Grand, who (when sitting at the Newport (IOW) County Court in 2018 and 2019) has struck out several parking firm claims. These include a BPA member serial Claimant (Britannia, using BW Legal's robo-claim model) and an IPC member serial Claimant (UKCPM, using Gladstones' robo-claim model) yet the Orders have been identical in striking out both claims without a hearing, with the Judge stating: ''It is ordered that The claim is struck out as an abuse of process. The claim contains a substantial charge additional to the parking charge which it is alleged the Defendant contracted to pay. This additional charge is not recoverable under the Protection of Freedoms Act 2012, Schedule 4 nor with reference to the judgment in ParkingEye v Beavis. It is an abuse of process from the Claimant to issue a knowingly inflated claim for an additional sum which it is not entitled to recover. This order has been made by the court of its own initiative without a hearing pursuant to CPR Rule 3.3(4) of the Civil Procedure Rules 1998...''

9. 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.

Statement of Truth:

I believe that the facts stated in this Defence are true.

Name XXX
Signature XXX
Date XXX


Silly question but do my numbered points have to directly address the same numbered points in the POC? :embarasse

If anyone could read the above and confirm it's good to go I'd be immensely grateful. I'm desperate to get it sent off so that I can at least relax until the next mail arrives.

Redx

In point 8 , we normally tell people to use all of the paragraphs by coupon mad for abuse of process , and renumber

I would also add the Judges Giddins and Jones to that mix of Grand and Taylor , doubling the number of judges which includes 2 more recent decisions if the same nature

No , you don't have to use the same point numbers as the claimants POC , but you should address those points early on in the defence

1505grandad

Para 3 - "The Defendant was a valid visitor and was advised by staff prior to attendance to park in one of their spaces."

Para 4 - "It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof."

I would suggest that these statements are contradictory

GetSmarterVictoria

Redx wrote: »

In point 8 , we normally tell people to use all of the paragraphs by coupon mad for abuse of process , and renumber

I would also add the Judges Giddins and Jones to that mix of Grand and Taylor , doubling the number of judges which includes 2 more recent decisions if the same nature

No , you don't have to use the same point numbers as the claimants POC , but you should address those points early on in the defence

Thank you! I've added the full abuse of process details and although my numbering may be a tad ropey it does look better. I'll have a look into adding the giddins and jones case too.

Would you agree with the below comment by 1505grandad?...I'm now almost positive that I wasn't driving (a family member was). So technically I was a valid visitor and also not the driver so not sure where I stand.

1505grandad wrote: »

Para 3 - "The Defendant was a valid visitor and was advised by staff prior to attendance to park in one of their spaces."

Para 4 - "It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof."

I would suggest that these statements are contradictory

As above, I'm now sure that I wasn't driving but at the same time was a valid visitor so not sure how to rephrase this?