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HELP! Can you check my defence for me? (Steps after Claim Form?)

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Comments

  • benjward
    benjward Posts: 46 Forumite
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    I just double checked - there was definitely a fob to get into the car park. I don't know if this changes anything?
  • Le_Kirk
    Le_Kirk Posts: 25,096 Forumite
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    Were you in possession of the fob (legally) because, if so, this makes you de facto authorised.
  • benjward
    benjward Posts: 46 Forumite
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    Le_Kirk said:
    Were you in possession of the fob (legally) because, if so, this makes you de facto authorised.
    Yes, I was a guest.
  • nosferatu1001
    nosferatu1001 Posts: 12,961 Forumite
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    There was no "notice to keeper" because a notice to keeper MUST BE SENT THROUGHTHE POST
    A notice to driver, placed on the vehicle, can NEVER be a notice to keeper. 
    I'm not saying ID'ing yourself as a driver makes it all lost. Im just saying that - based on what you appealed with - youre an outed driver. It just means you dont bother talking about the POFA2012 at all, because it provides no assistance to you.
    What bay was 160 next to? Was it logically laid out, or random?
    THink about obvious questions you might be asked to see why you thought that bay 160 was in fact bay 161...
  • benjward
    benjward Posts: 46 Forumite
    Third Anniversary 10 Posts Name Dropper
    Thanks @nosferatu1001

    Got it. So no POFA2012 in section 17.
    I agree, it's highly probable that in my previous communication I outed myself as the driver. (I definitely said 'I was parked...' etc, in letters)

    So

    As far as I understand, section 17 stays and needs to be edited to include:
    1. Defendant was the driver
    2. Remove the POFA bit
    3. The bit about 'notice to keeper' also isn't relevant because it only applies to POFA?

    So how does this read?

    The Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago. It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention. Whilst it is admitted that the Defendant was the driver, the mandatory requirements to establish 'driver liability' have not been met and the Defendant is not liable in law. 


  • Umkomaas
    Umkomaas Posts: 43,790 Forumite
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    PoFA is a technical argument, but arguing it (even if it was viable) makes it very difficult to present a case of misreading of the markings of the car park by 'a driver' who you are neither admitting nor denying was you. You'd need brilliantly nimble feet, a total understanding of PoFA, and the ability to deflect a Judge away from asking any pointed questions about how you were able to describe and articulate what a driver saw, read and interpreted. 
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    Private Parking Firms - Killing the High Street
  • benjward
    benjward Posts: 46 Forumite
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    THink about obvious questions you might be asked to see why you thought that bay 160 was in fact bay 161...

    The truth:
    I was fully under the impression that I was in bay 161, and had the correct permit on display, even when I got the ticket and left the car park. I couldn't understand why I had got a ticket.
    The first I even knew the paint was worn was when I demanded proof that I was in the wrong bay, and they sent me the photo from their officer showing the bay with worn away paint.

    That was the first time I knew anything about it. Up until that point I was convinced I had been in the right bay all along.

    I take your point about obvious questions and will represent the facts as best I can if I ever have to argue this in court. Based on what you have heard, do you think my case is arguable?

    What detail do you feel is best to go into in section 18?

  • benjward
    benjward Posts: 46 Forumite
    Third Anniversary 10 Posts Name Dropper
    Umkomaas said:
    PoFA is a technical argument, but arguing it (even if it was viable) makes it very difficult to present a case of misreading of the markings of the car park by 'a driver' who you are neither admitting nor denying was you. You'd need brilliantly nimble feet, a total understanding of PoFA, and the ability to deflect a Judge away from asking any pointed questions about how you were able to describe and articulate what a driver saw, read and interpreted. 
    Got it. Makes sense.
    So should I not argue the markings at all then? Is PoFA more watertight than neglected markings?
  • Coupon-mad
    Coupon-mad Posts: 155,731 Forumite
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    edited 4 June 2020 at 12:34PM
    No, you are going round in circles here.

    FORGET the POFA because you are an admitted driver.  Defend as admitted driver.

    Search the forum for 'key fob de facto authorised' to find the words to include about that! 

    It's been used in in defences for years, going back to when we used to do much shorter defences (don't copy the short defences you find, just the key fob paragraph).  Also state that in 2016 you believe the previous parking firm (whoever they were) had been removed and this is supported by 2016 Google Street View images that show that the 2015 'P' entrance sign had been removed.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • benjward
    benjward Posts: 46 Forumite
    Third Anniversary 10 Posts Name Dropper
    Thanks @Coupon-mad

    So with help from everyone on this forum (thank you all SO MUCH once again), this is what I have so far:

    Does this seem correct?

    17. The Particulars of Claim offer little to shed light on the alleged breach, which relates to an unremarkable date some time ago. It is not established thus far, whether there was a single parking event, or whether the vehicle was caught by predatory ticketing and/or by using unsynchronised timings and camera evidence to suggest a contravention. Whilst it is admitted that the Defendant was the driver, the mandatory requirements to establish 'driver liability' have not been met and the Defendant is not liable in law.

    18. The car parking area contains allocated parking spaces demised to some residents. Entry to the parking is by means of a key fob, of a type only issued to residents. Any vehicles parked therein are, therefore, de facto authorised to be there. The driver was a guest visitor and in legal possession of both a keyfob and a valid parking permit. There were no entrance signs displayed anywhere that indicated any contract was being agreed upon. The reason given for the charge on the original PCN was 'PARKED IN A RESTRICTED AREA OF A CAR PARK'. Given that the driver had both a keyfob and a valid permit this cannot be considered a reason. Furthermore, the paint marking that identified the parking bay where the car was to be parked was neglected and illegible to the point of being misleading. It is the building owner's responsibility to keep up the maintenance of the markings, and the driver cannot be held liable for any perceived infringement where the markings are concerned. 


    This can be backed up with the following evidence:
    1. Google Street View images for the entrance to the car park
    2. Photographic evidence of the neglected parking bay markings
    3. Screenshots from conversations with the tenant telling me how to access the parking bay with the keyfob and permit

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