Received a N1SDT Form from County Court Business Centre - for parking at my own home on private land

mattp87

From the below exert from the second post in the newbies thread. 


Point number 2 from the image above, as a resident, should negate all the others, am I right? I live and own a property and one parking space. 

So my thoughts from the below, they did correctly notify me, as they stuck a notice on the window, and upon my return from holiday, I lodged an appeal with them directly, what a waste of time. 
I'll use the below as a draft before I do any saving PDF's or anything of the sort! 
Please could someone critique my post as to whether or not I have compiled enough information?


A notice to keeper was issued on <date> and received by me, the registered keeper of <reg> for an alleged contravention of ‘BREACH OF THE TERMS AND CONDITIONS OF USE’’ at <....>. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons. 


1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates - I WILL REMOVE. 

2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

3) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself - there are plenty of spaces - I WILL REMOVE.

4) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice - They don't own the land, they are employed by the management company (of which we are consulted) I will keep this!

5) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates. Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-
’’The notice must be given by—
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’ 

The applicable section here is (b) because the NTK was delivered by post. Furthermore,
paragraph 9(5) states:
’’The relevant period... is the period of 14 days beginning with the day after that on which the specified period of parking ended’’
The NTK sent to myself as Registered Keeper arrived some 3 weeks after the alleged
event. Even if they had posted it on the same day that they describe as the ‘Date Issued’
it would be impossible for the notice to have been actually delivered and deemed ‘served’
‘or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that CEL have failed to act in time for keeper liability to apply. - IT isn't parking eye, I should remove!

2)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person. Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK. The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot –they will fail to show I can be liable because the driver was not me. The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. There is no reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found: ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.'' - Is this still relevant to me? The IAS and IPC are the only registered bodies on their website. 

3) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself - THE SIGN IS CLEAR - THEY EVEN SARCASTICALLY PICTURED BOTH THE CAR AND SIGN IN THE SAME PHOTO - I am preauthorised to be there, as I live there and paid for a pass, not that they have recorded it. 

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:


Thoughts? 
I don't want to put too much info with the area I'm in, in case they are reviewing it on this forum. I wouldn't put it past them!

Umkomaas

. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons. 

But you're not appealing, you're way past that stage and you are defending a court claim!  As a defence, your text above is simply hopeless (sorry to be harsh, but you're at a critical stage). 

There is a ready made Defence template for your use - you'll find it as one of the first five threads (Announcements) at the top of the forum thread list. Use that, you just need to 'personalise' it to cover the issues pertaining to your case (primacy of contract would be one of the key points) in paras 17 & 18. 

mattp87

Umkomaas said:

. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons. 

But you're not appealing, you're way past that stage and you are defending a court claim!  As a defence, your text above is simply hopeless (sorry to be harsh, but you're at a critical stage). 

There is a ready made Defence template for your use - you'll find it as one of the first five threads (Announcements) at the top of the forum thread list. Use that, you just need to 'personalise' it to cover the issues pertaining to your case (primacy of contract would be one of the key points) in paras 17 & 18. 

Fair enough, I'm not worried about harsh my friend, facts are facts. Thank you again for your help.

mattp87

DEFENCE

Preliminary
1. The Particulars of Claim lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct. The Defendant further 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.

Background
3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with AXA with 2 of named drivers permitted to use it.

4. It is admitted that on 16/02/2019 the Defendant's vehicle was parked at [NOT GIVEN SPECIFICALLY]

5.1. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort, in accorance to my lease to which I own; and
5.2.2. 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.

Authority to Park and Primacy of Contract
6. It is denied that the Defendant or lawful users of his/her vehicle were in breach of any parking conditions or were not permitted to park in circumstances where an express permission to park had been granted to the Defendant permitting the above mentioned vehicle to be parked by the current owner-occupier and leaseholder of [address], whose tenancy agreement permits the parking of vehicle(s) on land. The Defendant avers that there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bay, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

7. The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. The Defendant will rely upon the judgments on appeal of HHJ Harris QC in Jopson v Homeguard Services Ltd (2016) and of Sir Christopher Slade in K-Sultana Saeed v Plustrade Ltd [2001] EWCA Civ 2011. The Court will be referred to further similar fact cases in the event that this matter proceeds to trial.

7. Accordingly it is denied that:
7.1. there was any agreement as between the Defendant or driver of the vehicle and the Claimant
7.2. there was any obligation (at all) to display a permit as per my lease agreement; and
7.3. the Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

8. 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.

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

10. It is admitted that interest may be applicable, subject to the discretion of the Court on any sum (if awarded), but it is denied that interest is applicable on the total sums claimed by the Claimant.

STATEMENT OF TRUTH
I confirm that the contents of this Defence are true.

nosferatu1001

This doesnt look like the template defence in the newbies thread - did you start with that

Redx

And the statement of truth changed a few months ago and is quoted in the newbies thread so people do not miss it !!

mattp87

I got it from the newbies thread, I haven't posted and i will revist. Coupon mad had and an old user called Johnsomething had created it. I will revisit, thanks again!

Redx

If it's not from this year , don't use it , she tells people to use her 2020 template defence if it's not Parking Eye , she tells people to adjust 2 paragraphs that aren't even in your draft and she tells people to use the April 2020 statement of truth as well

mattp87

Ok, I will do this and re-post it and see if I can get the same result as Amatuergirl! You guys have helped out so much already. 

mattp87

FYI - I've explained to our new parking company about what the claimant is trying to do to me.
I explained they should underwrite the car park and know who residents are - that's true management. 
Not entirely sure they agree but they are appalled that this company is trying to take me to court.