Defence Claim Advice

ProbablyNotTheDriver

Hi all, I have received an N1 Claim form following receipt of a Parking Charge Notice earlier this year. From reading through the helpful content of this forum, it seems like I haven't gone down the advised route. The Parking Charge Notice I received acknowledged that the PPC didn't know who the driver was but didn't inform me that I would become liable as the registered keeper if I didn't give them the driver's details. I sent a letter explaining this to the PPC and naively thought that would be sufficient to make it go away.

I'm writing my draft defence at the moment and was hoping to add that at a later date below to get some advice on it. At this point though, I just have a couple of questions that I'm hoping to get some help with.

The Particulars of Claim states that "The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle." I've never acknowledged that I was the driver as several people have permission to drive my car. I'm going to make this clear in my defence but could someone confirm whether my understanding is correct:
If a defendant were to identify themselves as the driver, the requirements of pofa wuldn't apply and it would just be a straight contract between the driver and the landowner (subject to adequate signage etc. etc.?
Whereas if the defendent is only identified as the keeper, the only way they can be made to pay the charge is if the Claimant complies with pofa?
So the PCN that i've received is still enforceable just it's only enforcable against the driver and not the keeper? I read on Parking Cowboys that a PCN that doesn't comply with pofa can still be enforceable and this is what I understand that means. Please let me know if that doesn't make sense. My brain feels a bit like mush at the moment!

Are there any benefits to filling out the Acknowledgement of Service other than having more time to respond? I will be able to submit my defence within the time period and I'd rather get the ball rolling- unless there's something I'm missing.

Perhaps a rather silly question but would a judge just straight up ask me if I was the driver? The PPC does have photos of somebody who looks remarkably like me stood outside the driver's door of the car...

Thanks in advance for any help!

KeithP

What is the Issue Date on your County Court Claim Form?

ProbablyNotTheDriver

It was issued on 7.11.19

KeithP

ProbablyNotTheDriver wrote: »

It was issued on 7.11.19

I would suggest that you do file an Acknowledgment of Service. It only takes a few minutes, and you never know what might crop up to delay production of your Defence.

It does not mean you have to delay filing your Defence - it just gives you another option.

With a Claim Issue Date of 7th November, you have until Tuesday 26th November to do the Acknowledgment of Service. If possible, do not do the AoS before 12th November, but otherwise there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox file linked from post #2 of the NEWBIES FAQ sticky thread. About ten minutes work - no thinking required.

Having done the AoS, you have until 4pm on Tuesday 10th December 2019 to file your Defence.

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

If you do decide not to file an AoS, then you have until 4pm on Tuesday 26th November to file your Defence.


When you are happy with the content, your Defence could 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.

ProbablyNotTheDriver

Thanks Keith. That's a good point, there's nothing lost by filing the Acknowledgement of Service. I've just done it.

ProbablyNotTheDriver

It's a good job I filed the AOS...

My first defence draft is below. I wonder if it's too waffly and contains too much specific detail at this stage? Thanks in advance for any help!

1. The defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The particulars of claim states that “The Claimant claims the unpaid PCN from the Defendant as the driver/keeper of the Vehicle”. However, in the initial Penalty Charge Notice sent by the Claimant on XXXX, the Claimant states that “At the time of this notice we do not know both the name of the driver and a current address for service for the driver…” The Claimant has not informed the Defendant that this position has changed. The Defendant therefore refutes the assertion that this claim is brought against the “driver/keeper” of the vehicle.

3. Moreover, the assertion that the case is brought against the Defendant as the “driver/keeper” 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.

4. The right to claim unpaid parking charges from the keeper of a vehicle is set out in the Protection of Freedoms Act (POFA) 2012. The Defendant was not served with a notice to keeper as required by paragraphs 8 or 9 of Schedule 4 of the Act. The initial Penalty Charge Notice did not inform the Defendant that, should the amount claimed remain unpaid after 28 days, the keeper of the vehicle would become liable for the sum. As such, the PCN was understood by the Defendant to be a request for details of the driver of the vehicle and did not make clear that there was any requirement for action to be taken. The Defendant therefore asserts that, as a notice to keeper was not served, the Claimant has no entitlement to the sum claimed from the Defendant as the registered keeper of the vehicle.

5. Whilst the Particulars of Claim do not make it clear, it is understood from previous correspondence with the Claimant that the 'breach of the terms of parking' referred to relates to the Driver of the Vehicle leaving the site. It is denied that the Claimant’s signage is capable of creating a legally binding contract due its imprecise nature. ‘The Site’ is not defined on the signage and the Defendant considers it reasonable to understand a row of shops adjacent to the car park, and served by a gap in the low boundary wall of the car park, as forming part of ‘The Site’.

6. 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 contained in this Defence are true.

Le_Kirk

Did they really call it a penalty charge notice or maybe a parking charge notice. It is a very short defence and is missing signage and landowner authority - both standard points.

ProbablyNotTheDriver

Thanks Le_Kirk, you're right, it was called a Parking Charge Notice which I've changed. I've added in those sections and will post an updated defence to hopefully get some feedback.

Quick question though, if the Particulars of Claim don't make clear what terms of the contract have been breached, should I go out of my way to address the claims they've made in earlier letters? Or just say that the particulars are sparse which makes it difficult for me to formulate a defence?

Any help is really appreciated

ProbablyNotTheDriver

Version 2. Any feedback please? Thanks


1. The defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Particulars of Claim state that the case is brought against the Defendant as the “driver/keeper” which indicates 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. The ambiguity about the alleged status of the Defendant makes it difficult to structure a defence as it is unclear whether the claim is being made against the Defendant as the driver or keeper of the vehicle; two very different states in law.

3. The identity of the driver on the material date has not been ascertained. The initial Parking Charge Notice sent by the Claimant on XXXX states that “At the time of this notice we do not know both the name of the driver and a current address for service for the driver…”. The Claimant has not provided any evidence that this position has changed and is requested to provide evidence that the Defendant was the driver of the vehicle on the material date; if that is indeed what the Claimant alleges.

4. If this claim is brought against The Defendant as the keeper of the vehicle then the Claimant must rely upon the strict provisions of the Protection of Freedoms Act 2012 in order to hold the Defendant liable for the alleged breach of the driver. The Claimant failed to comply with Section 9(2)(f) of Schedule 4 of the POFA 2012 in that the Parking Charge Notice sent by the Claimant on XXXXXX failed to notify the Defendant that, as registered keeper, the Defendant would become liable for the alleged breach of the driver should the amount remain unpaid after 28 days. As such, the Defendant was not served with a ‘notice to keeper’ and the Claimant is unable to rely upon the ‘keeper liability’ provisions of POFA 2012.

5. The Claimant is 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. The Claimant is not believed to be the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.

6. Further, 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 signs merely state that drivers must not leave ‘the site’ whilst not providing any definition of the term ‘the site’.

7. The Defendant has been entirely open about their position with the Claimant from the first correspondence. The position of the Defendant, that the Claimant has not identified the Defendant as the driver and cannot rely upon ‘keeper liability’ with regard to POFA 2012, was set out in the Defendant’s letter dated XXXXXX. The Defendant has no legal background and was open to correction from the Claimant and the Claimant’s solicitors should they have responded sufficiently to the Defendant’s letters. Instead, the Claimant and the Claimant’s solicitors responded with generic letters that failed to address the specific points raised by the Defendant; suggesting that this was a largely automated process. This process included threatening statements about the possibility of County Court Judgements being registered against the Defendant which would “make it difficult for you to obtain credit”. This behaviour is considered entirely unreasonable and unnecessary.

8. 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. If the Court does not choose to strike out the claim then the Defendant would request that more specific Particulars of Claim be ordered from the Claimant and that the Defendant be given leave to amend the Defence once these are received.

Coupon-mad

ProbablyNotTheDriver wrote: »

Perhaps a rather silly question but would a judge just straight up ask me if I was the driver?

Absolutely YES, in your case, due to this:

The PPC does have photos of somebody who looks remarkably like me stood outside the driver's door of the car...

Remove this:

The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question. The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge.

And remove this:

If the Court does not choose to strike out the claim then the Defendant would request that more specific Particulars of Claim be ordered from the Claimant and that the Defendant be given leave to amend the Defence once these are received.

And you have missed the point about the fact they've added sixty quid that they can't recover due to the POFA, the Beavis case and the CRA 2015 (see any other defence from this past month, and copy!).

In fact start again and STOP relying on the POFA and pretending you were not driving, given their photos.

if the Particulars of Claim don't make clear what terms of the contract have been breached, should I go out of my way to address the claims they've made in earlier letters? Or just say that the particulars are sparse which makes it difficult for me to formulate a defence?

Search the forum for examples to copy & adapt, using the keywords: 'left the site defence' or 'non patron defence'.

You need to say after looking at the photos supplied earlier by the Claimant, the Defendant believes they may have been the driver but denies that they left the site, or that the 'site' was defined with a boundary and prominent, transparent terms as required in the CRA 2015.

ProbablyNotTheDriver

Thank you Coupon, I really appreciate your response. I wondered whether I was barking up the wrong tree with the POFA arguement. I’ll start again along the lines you suggest. Thanks again!