CCJ looking for consent or set aside

Raf123411

nosferatu1001 said:

Did you use the timeline on GSV ? That usually goes back more than 5 years 

@nosferatu1001

So I managed to go back and there is 2 photos available from september 2018 and MArch 2019, but they are the same.

Entrance sign is facing the street with 10 minutes grace period. So look like I`m droping this points from my draft defence.

Raf123411

Hi everyone,
I heard back from court today about the date of hearing and it will be phone hearing in April. 

Also in the letter they asking to send draft defence by 6/1/21 Is that draft defence for the case to set aside( I send this already with N244 as witness statement) or draft defence for the initial case related to parking ticket? 

I also heard back from EXCEL GDPR officer and they provided me with this photos and timing.

Look like car was in the car park for 18 minutes when regarding to their rules you was only allowed for 10 minutes. 

nosferatu1001

It tells you! 

It states
defence to the claim
it does NOT state draft either! You must be accurate and read what's in front of you

Despite it not telling you to, ALSO file and serve your witness statement and accompanying exhibits, again, addressing the claim. If you don't, you will have no evidence you're allowed to rely on.  

Raf123411

Thank you @nosferatu1001
It’s just very stressful to get this right that’s why I’m asking.
I thought it’s about  the defence to set this case aside, but I already submitted witness statement (with all confirmations of moving the address etc.)  with P244 form. Do I have to send this again? 

So then once if it’s successful set aside I’ll have to serve them defence for the initial Case?

nosferatu1001

No. You send a defence to the CLAIM. as you have been Ordered to do. I've said it twice now, and you have it written in front of you! 

Defend
the 
claim 

nothing else. Nothing. 

assuming you get the set aside, and assuming the claimant doesn't discontinue , you will have a date to defend the claim.  Before that you will have new Orders. As I said above, courts often do not state to send WS FOR THE CLAIM itself , but you must ensure this happens. 

Coupon-mad

You are simply using the template defence we provide at the top of this forum and adapting the 2nd and 3rd paragraph, to talk about the fact the driver (if it was you then admit it) was in the car park just 17 minutes - not 18, look at the timings. 

And that was because the signs were unlit and the entire car park was pitch black, as the evidence photos show.  The mere ten minutes on the signs was not only unreadable in the dark but until the driver has had a chance to read the terms then they are no bound by them.  So in pitch black conditions in Winter, it took an extra five minutes to seek out and read a sign, locate a parking ticket machine, find that you couldn't (what? make it work? download an app?  find the right change?  read the screen or see the keys at all?). 

Your story but in the 3rd person, added to the template defence.  That's what it's there for. Takes most people who use it, twenty minutes max.  Very easy.

Raf123411

@Coupon-mad thank you very much for this. I had good look into similar topic you helped a lot with Excel and added few points to my defence. Hope i got this right.

Also NTK attached ( recived from Excel solicitors) , I was trying to understand POFA 2012, regarding time they are allowed to send NTK.

Date of contravention: 13/12/2017

Date of NTK issue: 27/12/2017 (Thursday)

On the balance of probability if they sent ticket on 27th or 28th there is no chance its arrvied by the 28th.

So ticket wasn`t received in 14 days, but wondering if this point allowed them extra 2 days for notice to be recived:

A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

And thats my defence. Do you think Shall I focus more on point 3 about lighting etc or this should be enough?

Also my hearing will be telephone hearing and from what I already read on the forum all evidence have be on point.

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. Defendant It`s not able to identified the driver due the significant time from the event. 

2.1 Defendant was learnt of the existence of this claim on the evening of 10/11/2020 when Checked Credit Report.

2.2 Defendant received the copy of the NTK to learnt that letter is not compliant with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.  In this case the Claimant has not established who the driver of the vehicle. The Claimant wishes to invoke the keeper liability under The Protection of Freedoms Act (PoFA) 2012 (Schedule 4) As such the Claimant must abide by the strict requirements set out by this legislation. The defendant asserts that the Claimant has failed to meet a requirement of this legislation and such cannot hold the registered keeper (the defendant) liable in this case. Sub-paragraph(s) 4 points below establish why a requirement of the legislation has been broken.

2.3. The Claimants first correspondence to the defendant was with a Notice to Keeper (NTK) letter with an issue date of Thursday the 27th of December 2018 (27/12/2018) highlighted in the top right-hand corner of the letter.

2.4. In the Claimants NTK letter to the Defendant the Claimant states:

‘Please be warned: that if after the period of 28 days beginning with the day after the Issue date of this Notice, the amount of the unpaid Parking Charge specified in this Notice has not been paid in full and we do not know both the name of the driver and the current address for service for the driver, we will have the right to recover from you, the Keeper, any unpaid balance of the Parking Charge. This Notice will be deemed to have been received by you on the second working day after the Issue Date stated above unless the contract is proved.


2.5 In the first sentence of paragraph 2.4 above the claimant states ‘that if after the period of 28 days beginning with the day after the Issue date of this Notice…we will have the right to recover from you, the Keeper’ The Defendant asserts that the Claimant is incorrect in making this statement to the registered keeper and is misleading to the Defendant and is in breach of PoFA 2012 (Schedule 4) section 9 paragraph 6. The defence will establish in subsequent sub-paragraph 4 points below as to why this is the case.

2.6. PoFA 2012 (Schedule 4) paragraph 9 (6) defines the notice given period to be provided to the registered keeper:

‘A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose, “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.’

2.7. PoFA 2012 (Schedule 4) paragraph 9 (2) (f) states that:

‘warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (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,’

2.8. As the Claimant statement shown in paragraph above 2.4 states that the registered keeper is to be held liable for the claim ‘28 days beginning with the day after the Issue date of this Notice’ this liability date calculated by this statement would mean the registered keeper is to be held liable 28 days after Friday the 28th of December 2018 (28/12/2018) which is one day from the Issue Date of the NTK letter. This liability date stated to the registered keeper is incorrect and misleading and registered keeper and is in beach of PoFA regulations.

4.7. As stated in PoFA 2012 (Schedule 4) section 9 paragraph 6 stated in this defence document point 4.4 the ‘given date’ is defined which the registered keeper is to be held liable is calculated 28 days from ‘..the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.’

4.8. PoFA 2012 (Schedule 4) paragraph 9 (2) (f) as states that the Claimant needs to ‘warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given’.

4.9. As the notice ‘given date’ as calculated by PoFA regulations is Monday the 31st of December 2018 (31/12/2018) then according to (Schedule 4) paragraph 9 (2) (f) the Claimant needs to ensure that the registered keeper is warned after a period of 28 days beginning with the day after that ‘given date’ of 31/12/2018 which is Tuesday the 1st of January 2019 (01/01/2019).

4.10. It is clear that Claimant is in beach of PoFA by giving the registered keeper incorrect dates as to when he/she may be held liable for an alleged violation. As they are in breach of PoFA regulations they cannot pursue they claim against the registered keeper. The Defendant invites the court to strike out the claim for the above grounds as they have not successfully transferred liability to the keeper. If at this point the court does not wish to strike out the

3. The Defendant would like to highlight the following points:

3.1 At the point of entry, the entrance terms and conditions sign is not readable due to insufficient lighting. On the date of contravention taking into the consideration winter and night time ( 9:30pm) it would take extra 5-10 minutes to see the signage, read terms and condition and get the right change for the machine.

3.2 The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

3.3 The defence has examined google street view photos to established the photos of signage closest to the date of alleged contravention coming from September 2018 and stating 10 minutes as a maximum time to purchase parking ticket. Defence examinate site recently to learnt that signage now stated 5 minutes as maximum allowed time period to purchase the parking ticket.

3.4 Defendant it`s not able to clearly established the allowed time to purchase the parking ticket and entering into the ‘parking contract’ during the alleged contravention as on the Notice to Keeper issued by Excel Parking Services LTD. is blank space in the place where this time should be stated (table on the middle right: Contravention Reason).

3.5 Taking point 3.1 and 3.2 into consideration either 5- or 10-minutes don`t seems as reasonable time for chance to park the car and read the terms and conditions of the parking before entering into the ‘parking contract’ and find the right change.

3.6 The Claimant provides a help line on the Carpark signage for motorists to call to help them understand the terms & conditions of the signage. The Defendant again asserts a 10-minute timeframe is not giving the motorist enough time to call the helpline to gain an understanding of the contract they may be entering into if they call. The Claimant is put to strict proof that a motorists on entering the site and fully reading the terms & conditions of the site signage, on not understanding it has the opportunity for clarification with the helpline number and can do this within 10 minutes and it still leaves them with the opportunity to leave the site in the 10 minutes allowable time if they do not agree with the terms.

Redx

2 should say identify , not identified ,

plus

Is , not it's , also due to 

Have you proof read this ?

Coupon-mad

They dated it day 14 so it can't also have arrived on day 14.  No, the POFA wording works against them, not in their favour.  The NTK must be served in time and must also be worded compliantly (to the letter).

It was not only late but the wording under 'important note' talks about pursuing the keeper ''on the assumption that they were the driver''. That is the opposite of the POFA 2012 wording, where the keeper is certainly NOT pursued on the assumption they were driving!  The POFA allows PPCs to pursue keepers for the actions of an unknown driver, IF all the requirements are met, which includes the wording in para 9 of schedule 4. 

That is not the wording from para 9 and in particular, the warning of 'keeper liability' in 9(2)f is not there. 

If your Judge starts to muse that this wording might be 'substantially compliant' then IT IS NOT, and the case of Excel v Smith shows this.  Also, the way to ensure a Judge 'gets it' is to say ''Sir/Madam, if parking operators could just hold a keeper liable ''on an assumption that they were the driver'' there would have been no need for the statute law on this issue.  Schedule 4 would be redundant legislation, if it were that easy.''

As well as Excel v Smith (transcript from the Parking Prankster's Case Law pages) another exhibit for WITNESS STATEMENT STAGE (not defence) is Henry Greenslade's words about KEEPER LIABILITY from the POPLA Annual Report 2015. Easy to Google, as is the Prankster's stuff.  Read Henry G's words.  He states that no parking firm should be stating that a keeper is liable outwith the POFA and that (in the absence of evidence) there is no 'reasonable presumption' about a keeper being the driver, on private land.

All this only matters if you were not the driver or genuinely cannot recall who was, in the case of a car used by other drivers too.

nosferatu1001

As above
theyre required to give it within 14 days, and it's assumed to take two days to arrive. So sending it day 14 means it cannot be assumed to arrive before day 16, and certainly not day 14!