Help please received county court claim form and unsure how to defend

Coupon-mad

I have changed to "5.2 I paid a visit to the site to take photographs and the entrance sign was at an angle and rather difficult to read with the glaring sun in your eyes. The drive to the parking space was completed without the ability of clearly reading any signage." Is that okay please?

Depends if you removed the second bit about the other visit. That first part wasn't the problem, was it?  Your 5.2 talked about the parking event, the way it was written.

chinners

Coupon-mad said:

I have changed to "5.2 I paid a visit to the site to take photographs and the entrance sign was at an angle and rather difficult to read with the glaring sun in your eyes. The drive to the parking space was completed without the ability of clearly reading any signage." Is that okay please?

Depends if you removed the second bit about the other visit. That first part wasn't the problem, was it?  Your 5.2 talked about the parking event, the way it was written.

Yes I completely removed the second bit thank you for spotting it thanks really appreciate your spending time on this. 

chinners

Le_Kirk said:

If you are admitting to being the driver on that occasion, the protection afforded to the keeper by POFA is irrelevant. The keeper has protection from POFA, the driver does not.  You need to decide or determine who was driving on that occasion.
Trying to avoid the metal barrier, which was placed in an awkward position by the parking company, making it impossible to park as you would have wished is a reasonable answer but it needs to be in your defence, if and only if, the particulars of claim or the claimant's witness statement mention it.  If it is just a photo and forms no part of why you received the PCN you should keep it in your back pocket for the hearing.

@Le_Kirk the witness statement mentioned this as an additional reason for the charge. I have added the following:

5.7 in the Claimant’s WS #9 the breach is described as twofold as the vehicle was parked encroaching an adjacent bay. The photograph of the parking bay in the witness bundle shows a metal barrier at the front which would have made it difficult to park within that bay.

is that okay please?

chinners

Le_Kirk said:

OK, I can now see you defended as keeper.
You have to place the NTK side-by-side with the POFA document and go through them line-by-line to make sure that the NTK agrees exactly with the POFA.  There is often confusion around the date and the fact that POFA states: -

at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given 

 rather than 28 days later.  You need to look at paragraph 8 and/or paragraph 9, depending upon whether you/the driver received a NTD followed by a NTK or straight to NTK.

I have done this but still cannot tell if it is non-compliant. The dates are fine, there was a NTD then NTK about 29 days later. They do not mention POFA in any document, I have read paragraph 8 multiple times till my eyes hurt, side by side with the NTK. The only part I can see is that it does not specify the period of parking but gives the time the charge was issued. Is that sufficient or am I missing something else, please? I am desperate and clutching at straws at this point. 

Coupon-mad

Come on, this is easy.

Look at what 8(2)f says, it's a warning about the keeper becoming liable...think about what it means, that Horizon DON'T include that statutory warning.  

chinners

Coupon-mad said:

How is it difficult simply reading 8(2)f and spotting that it isn't there?  Come on this is easy.

Look at what 8(2)f says, it's a warning about the keeper becoming liable...think about what it means, that Horizon DON'T include that statutory warning.  

Thanks a million.  I have now amended.
Please could you review the amended.
hxxx://www.dropbox.com/s/ljl38v7rg8c87sc/WS2nddraft.pdf?dl=0

Le_Kirk

Your link made live: -
https://www.dropbox.com/s/ljl38v7rg8c87sc/WS2nddraft.pdf?dl=0

Coupon-mad

OK, don't use 'PPC' as an acronym. That's a forum acronym here, not for a Judge.

And in 4.2. you haven't spelt out what the wording says, like I did when I explained it to you.  It is a warning about keeper liability.  Without that warning and the other requirements of para 8, this is a non-POFA Notice to Keeper.  Operators are entitled to issue non-POFA NTKs - and a handful of operators, like this one, choose not to use the applicable law at all -  but that choice means they can never say that a keeper is bound.

1505grandad

Some observations:-

Typos  -  You have several "judgement" erroneously containing a middle "e" in this context i.e.(there are others):-

Para 5.12  -  "....persuasive appeal court judg(e)ment Hancock v Promontoria (Chestnut) Limited..."

                     "....where the judgment approved by the court ...."

Paras 4  -  are the exhibit numbers the wrong way round?

Para 5.1  -  "....... constituting a “contract” between (myself) and The Claimant."

                   should (that) be "driver"? 

chinners

Coupon-mad said:

OK, don't use 'PPC' as an acronym. That's a forum acronym here, not for a Judge.

And in 4.2. you haven't spelt out what the wording says, like I did when I explained it to you.  IT is a wanring about keeper liability.  Without that warning and the other requirements of para 8, this is a non-POFA Notice to Keeper.  Operators are entitled to issue non-POFA NTKs - and a handful of operators, like this one, choose not to use the applicable law at all -  but that choice means they can never say that a keeper is bound.

Sorry been in meetings all day. Thanks for pointing out.

I have amended to below:

4. Non-Compliance with the Protections of Freedoms Act 2012 (POFA)

4.1 There is no requirement in law for me to identify the driver and I do not wish to volunteer this information to a Private Parking Firm. Had this been the intention of parliament, they would have  made such requirement part of POFA. There was more than one driver insured to drive the vehicle in question at the time of the alleged breach. The claimant is attempting to transfer this charge to me as the keeper and is therefore relying upon the POFA (2012)

4.2 I attach an extract from the POFA, highlighting schedule 4 paragraph 8(2)f, where a Private Parking Operator is specifically required to “warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”

4.3 I attach the Notice to Keeper issued by HPL on 31.10.18. (HPL07) in which it can been seen that that important warning is missing, rendering the NTK non-compliant in law. HPL have chosen not to use the applicable law and therefore cannot transfer liability to the keeper.

4.4 Henry Greenslade, lead POPLA adjudicator clearly stated (2015) on the issue of transferring liability from the driver to the registered keeper that if ..”POFA 2012 , schedule 4 is not complied with then keeper liability does not generally pass”.

4.5  The Notice to Keeper from the Claimant fails to comply with the strict requirements of the POFA (2012), Schedule 4, including paragraph 8(2)f and therefore the Claimant is incapable of holding the keeper liable.

 

is that better?