*Updated* SUCCESS against BW Legal/UK Parking Patrol Office Ltd

D_P_Dance

If you relative was using a visitors' space while living with you you may struggle if this goes to court.  Visitors' spaces in residential car parks are not intended for residents, albeit temporary ones.  

Rosa_Klebb

D_P_Dance said:

If you relative was using a visitors' space while living with you you may struggle if this goes to court.  Visitors' spaces in residential car parks are not intended for residents, albeit temporary ones.  

But she was not living with me, just visiting.  She was living around 30 miles away!  In any case I thought it was up to the Claimant to prove who the driver was, or if they can't then they can pursue the registered Keeper provided they adhere to POFA.  It is not my responsibility to name the driver surely, and nor would I want to dob in a family member.

Redx

There is no problem with what you describe in your recent replies , but you should have made it clearer from the outset. A visitor visiting and using a visitor space is ok within the lease or AST rules , irrespective of who the keeper was

No , there is no legal requirement to name the driver for private PCN s , but better for you that you were not the driver and clearly say so in 2 , which you now have done

Your defence is fine so far , but is still on USA spelling instead of UK English , so a few typos that need fixing , which I have mentioned previously

I would wait for further feedback but do not miss the CCBC deadline

Castle

Rosa_Klebb said:

Castle said:

Rosa_Klebb said:

Le_Kirk said:

4. The vehicle was in use by a relative who, when visiting the Defendant, made appropriate use of the visitors parking space in the residential car park where the Defendant lives.

This is confusing - is it your vehicle that was being used and of which you are the registered keeper?  Is the claim form in your name?  If it was your vehicle, why did the relative have to use a visitor space.  The defence has to explain to the judge as concisely as possible the circumstances surrounding the event.

Thanks and may take that out.  My main vehicle was in our allocated space, my other vehicle in long term use by a family member who no longer lives with us was using the visitor space.  I'm not sure what it adds in any case.  Sufficient just to say that I was not the driver without confusing matters perhaps?

Sounds like the family member is the actual keeper of the vehicle, not you.

Again I have already covered this.  I was the registered Keeper according to the DVLA as my name and address was on the V5.  But I was not the driver.  Someone else driving the vehicle for a period of time makes no material difference to who the registered Keeper is.

But it does make a material difference for the purposes of POFA; the "Keeper" is not always the Registered Keeper.

D_P_Dance

Indeed, it would appear that your relative is/was the de facto keeper.  l

Coupon-mad

Yep, separate 'keeper' from 'registered keeper' in your mind.  The actual KEEPER is only 'presumed' to be the registered keeper, unless the contrary is proven, and in their case, the contrary is true if the car wasn't kept by the rk.

For example I could be the rk of my daughter's car.  I am insured on it.  But she mainly drives it and keeps it at her place in London.  So she is the keeper, but I could be the rk if we'd decided to register it in my name.

Rosa_Klebb

Goodness, what a tangled web of definitions the Keeper appears to be.  I though it was only the registered keeper that mattered?  Perhaps best if it is going to cause all this confusion to simply to not even mention who was driving, or that I was not driving?  Less chance of being tied in knots by a judge if it goes to court?

Redx

Your paragraph 2 is still correct , you are the registered keeper but not the driver

The keeper is the day to day keeper , which was the visitor , who may or may not be the driver and you decline to say , except to state that you were definitely not the driver , so you make that point extremely clear !!

Do not overthink this

As a registered keeper who was not the driver , the claimant has to prove full compliance by them under POFA such that they can hold you liable as a registered keeper. Their claim succeeds or fails on that law , on POFA

If they failed to comply with the law named POFA , their whole case fails , especially because the wrong person is the defendant in that scenario , meaning the defendant was not the driver

So you were the RK , you were not the day to day keeper , you were not the driver

Sometimes a person can be owner , registered keeper , day to day keeper , and driver

That wasn't you

However , a driver is ALWAYS deemed responsible and may be liable , no law protects a driver , so a Driver defence relies on signage , contracts , etc

Ps , this Ukppo and b w legal one was just discontinued , where they went after the keeper who was the driver

https://forums.moneysavingexpert.com/discussion/6213501/defence-uk-parking-patrol-office-limited#latest

Whereas in your case they do not know who the driver is , meaning your case is better , as a Keeper but not the driver , you have a stronger case

Rosa_Klebb

Many thanks Redx, have amended using some good points from the case you highlighted.  Appreciate the spell checker is still in USA mode and might be wrong, will run through this at the end before submission.  Please see updated Defense here:

The facts known to the defendant:

2. It is admitted that the Defendant was the registered keeper of vehicle XXX but was not the driver at the time.  Liability is denied.

3. The Defendant cannot be held liable as ‘Keeper’ due to the Claimant not complying with the ‘Keeper Liability’ requirements as set out in the Protection of Freedoms Act 2012, Schedule 4.

4. The Particulars of Claim on the N1 Claim Form refer to a 'Parking Charge' incurred on the XX/XX/20XX.  They also refer to a ‘Contractual Breach’ and a ‘Failure to comply with Terms and Conditions’.  However, they do not state the basis of any purported liability for these charges, in that they do not state what the terms and conditions of parking were, or in what way they are alleged to have been breached. 

5. As a leasehold owner at XXX, the Defendant’s residential Leasehold Contract states that the Leaseholder has the rights as follows: “The rights for the Lessee’s visitors to park one roadworthy private motor car on a Visitor’s Parking Space for short term parking on a first come first served temporary basis and subject to any regulations made by the Management Company”. 

5.1 There is no mention in the Leasehold Contract of any ‘24hr Parking Limit’ for Visitor parking.  There is also no mention of ‘Parking Charges’ or ‘Penalties’ payable to third parties such as the Claimant.  At some point, the Management Company contracted with the Claimant to enforce parking conditions at the estate.  The Defendant has never accepted, or had the opportunity to accept via the Management Company, any such contract with the Claimant.

5.2 The residential development / land is owned by XXX, who are the Freeholders of the car park in question.  I have not seen, or been provided by the Claimant, confirmation of authorisation from XXX, or any license agreement between XXX and the Claimant devolving authority or giving permission for the Claimant to operate on this site.  The Defendant suspects that no such permission exists.

6. The Claimant is a member of the International Parking Community (IPC) and is signed up to their Accredited Operator Scheme.  The Claimant is therefore duly required to adhere to the operational requirements as stipulated in the IPC’s Code of Practice. 

6.1 The Defendant can demonstrate that the signage in the car park, on which the Claimant relies, does not comply with the requirements stipulated in the IPC Code of Practice at the time their Parking Charge Notice was issued.  The car park signage is both inadequate and insufficient for any contract to have been formed or implied.  The Defendant has already highlighted this to the Claimant, with clear photographs that disprove the Claimants assertions.  The Claimants own photographs sent to the Defendant disprove the Claimants assertions.  The Defendant, is unsure therefore why the Claimant continues to pursue this Parking Charge Notice and therefore suspects that the Claimant is acting in a vexatious manner.

Rosa_Klebb

6.1 is really interesting.  The Claimant sent to me as part of a SAR, a site plan and many photographs of the car park bedecked with signage.  They claim that this signage was present.  I can only assume that perhaps their signage has not been maintained because at the time the PCN was issued, there was actually very little visible signage in the car park. 

The Claimant also sent a photograph of my vehicle, in the visitors space and allegedly breaking terms and conditions, bright yellow PCN attached to the windscreen.  Unfortunately for them, this photograph also shows very clearly that the signage they claimed was present in their previous site photos, and on which they base their implied contract, no longer exists.  There is no visible signage in their photograph in the places they claimed there was.  They have sent me their own photo that disproves their own case.  You couldn't make it up!