Surprise CCJ Dilemma

YorkshirePudd

Grizebeck said:

Which court (hearing date ) and claimaint please?

It's Wakefield County Court, rescheduled for Friday v Excel Parking Services.

Coupon-mad

Excel Parking Services Ltd

OK - so tomorrow email a PDF headed with the claim number, and the date and time of hearing (and the names of the Claimant and you, the Defendant).  

Obviously put the same info in the subject line of the email.

Give your document a heading:


SKELETON ARGUMENT AND APPEAL AUTHORITY - IN SUPPORT OF THE DEFENCE POINT THAT THE DEFENDANT WAS NOT DRIVING AND IS NOT LIABLE

1.  The Defendant's case as pleaded, includes the fact that she was not driving. 

2.  The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver and will be unable to do so because as a matter of fact, the court will hear - as pleaded in the defence - that she cannot have been and she will give oral evidence to this effect.

3.  The Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

3.1.  Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
3.1.2. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
3.1.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

4.  The Claimant has not complied with the relevant statutory requirements, not least insofar as the Notice to Keeper ('NTK') fails to properly (or at all) warn the keeper of any potential liability.  Schedule 4 POFA, para 8(2)f - or 9(2)f for postal notices - is omitted. The NTK states that the driver is liable and it also misstates the period of 28 days, wrongly suggesting that the mandatory timeline set in Schedule 4 (paragraph 8(2)f or 9(2)f as the case may be) runs from 'the date of the notice'. 

5.  To the extent that the Claimant may seek to allege that any such presumption exists, for the avoidance of doubt, there is no presumption in law (whether in statute or otherwise) that the keeper can be presumed to be the driver.  This is not how the POFA Schedule 4 transfers liability (keepers and drivers are not treated as necessarily the same person).

6.  Further, the vehicle keeper is not obliged to name the driver to a private parking firm. Had this been the intention of Parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.

7.  This Claimant has already undertaken an appeal which they lost, which establishes that the keeper cannot be presumed to be the driver without PoFA.

7.1.  This persuasive authority is Excel Parking Services Ltd v Smith (Appeal) 08/06/2017 C0DP9C4E.  HHJ Smith sitting at Manchester County Court overturned a mistake made by the Deputy District Judge from the original case, where the identity of the person who was actually driving the vehicle was not known. On appeal, it was ruled that - due to the vague wording used by this Claimant in their NTKs - that the registered keeper could not be held liable and that an attempt to rely instead upon a twisted interpretation of the law of agency was unfounded.

7.2.  HHJ Smith held:  “There is, of course, a specific regime within the Protection of Freedoms Act 2012, schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency.”  Excel failed in that argument.

8.  In the County Court at Skipton, another case was dismissed on the same basis; Excel Parking Services v Lamoureux C3DP56Q5.  Whilst this second case is not a persuasive decision, it is certainly on all fours with similar cases brought by Excel Parking Services and District Judge Skalskyj-Reynolds explained the legal position very clearly when she ruled against Excel Parking Services Ltd for issuing a 'non-PoFA’ PCN, that could not hold the registered keeper of the vehicle liable.

8.1.  The learned Judge in Lamoureux held:  “So unfortunately, I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012 or keeper liability.”

The two transcripts are appended to this skeleton argument, to assist the court in the hearing this Friday.

2.11.2022

Coupon-mad

The 2 transcripts - in full - must also be attached as PDFs (not links).  You will find both transcripts by Googling Parking Prankster case law.

I an not providing links because you must not use links for the Judge, you need the actual transcripts attached to your skeleton argument.

No need to sign it. A skelly is not signed.

Email it to the hearings email address at Wakefield County Court AND copy in whoever Excel are using to file the claim (a solicitor? Look at the claim form or whoever emailed you their WS bundle - email it to them).

Is it a telephone hearing? If so you MUST also email the court your phone number of course.  But you know that, from the hearing letter.

YorkshirePudd

@Coupon-mad - thank you so much for this.  I spent much of the night reading and re-reading POFA to be able to demonstrate my understanding to the judge.  However...I am struggling to identify the non-compliance. In relation to keeper liability - The NTK states "we will have the right to recover from the registered keeper, any unpaid balance of the parking charge".  Is this enough for the judge to say they are compliant without the claimant having made reference to liability or POFA itself?

4.  The Claimant has not complied with the relevant statutory requirements, not least insofar as the Notice to Keeper ('NTK') fails to properly (or at all) warn the keeper of any potential liability.  Schedule 4 POFA, para 8(2)f - or 9(2)f for postal notices - is omitted. The NTK states that the driver is liable and it also misstates the period of 28 days, wrongly suggesting that the mandatory timeline set in Schedule 4 (paragraph 8(2)f or 9(2)f as the case may be) runs from 'the date of the notice'. 

Jenni_D

Look carefully at what their NTK actually says vs what 8(2)f / 9(2)f of PoFA actually say. PoFA says "28 days beginning with the day after that on which the notice is given" ... if the NTK just says 28 days then they cannot lawfully invoke PoFA; the wording in PoFA is prescriptive and leaves no leeway for interpretation.

Coupon-mad

Surely it misstates the 28 days as running from the 'date of the notice'?

Given what you've told us the NTK says, you can remove this phrase "states that the driver is liable and it also" (just leaving 4 saying that the 28 days is misstated).

YorkshirePudd

Thanks @Coupon-mad and @Jenni_D

Here's what I think their mistake is:

POFA 8 (2) (f) states the creditor must in the NTK 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 [the given date being specified in 8 (6) as the second working day after the day on which it is posted] the creditor will (if all applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.

Timescales stated in the NTK are inaccurate and therefore not compliant with POFA.

The PPC contradict themselves in the bottom left paragraph of the NTK by giving two different dates from which the 28 days commence.

The first commencement date of the 28 days is given as 24th February 2017.  The NTK reads “if, after a period of 28 days beginning with the day after the Issue Date of this Notice” (the issue date being stated in the NTK as 23rd February 2017) “the amount of the unpaid Parking Charge specified in this Notice has not been paid in full…we will have the right to recover from the registered keeper, any unpaid balance of the Parking Charge.

The second date for the 28 days to commence is 27th February 2017.  In the same paragraph in the bottom left corner of the NTK the PPC states “This Notice will have deemed to have been received by you on the second working day after the Issue Date” which is 27th February 2017 – two working days after the day in which the NTK is posted. 

Coupon-mad

I wouldn't bother with the second bit because that could be considered by the Judge to be correct.

You need to get this and the 2 authorities emailed within an hour. Before 4pm! The actual transcripts.  3 PDFs attached to an email with the subject line I gave you.

You are very late to be submitting stuff and have already breached a court order by not filing and serving any WS or evidence, so this was provided for you last night to urgently try to rescue your case. Not to waste any hours trying to perfect it.

YorkshirePudd

@Coupon-mad

Sorry, I wasn't trying to perfect the skeleton argument.  It's really helpful as it is and I'm really appreciative of your assistance.  The NTK does say the day after the issue day and not the day of the notice so I had to change the wording slightly to be accurate.  It's all been sent through, so I'll keep everything crossed for Friday.  Thanks again.

YorkshirePudd

UPDATE - I Lost

Judge said:
*   NTK was compliant with POFA so able to recover charge from registered keeper
*   Was very familiar with the car park, driving past it most days, and would find it hard to believe that anyone could park in the car park without failing to realise it was a 24 hour pay and display as lots of signs and very well lit

Have to pay the original £100 fine but not the added £60.  Plus £25 and £27 for court fees and the claimant's legal costs of £50 - so a total of £202