CCJ Set Asside Won, help with Defence needed.

Coupon-mad

Looks very good to me, as long as you find the 6 point draft order from other threads you look well prepared.

Also, have ready the template defence because if the Judge won't set aside the CCJ as a 'mandatory' set aside, you will need to push for a 'discretionary' set aside where the court may do so, and that includes where the D has good prospects of defending the claim and should be afforded fair access to justice with the defectively-served CCJ set aside, so that the D can properly bring their statement of case forward to be heard.

ak_motorist

Hi All, thanks again for the help with application. I'm happy to announce that I have won set aside hearing, but still need to serve defense against the claim.  My defense is based on the fact that Claimant failed to issue Notice to Keeper within 14 days thus violating IPC Code of Practice v6. Claimant's lawyer was making an argument that Claimant is pursuing claim on the basis of legal contract that has been formed when I have parked at their site. Any advice on what arguments/case examples I could use in my defense? 

Once again, thanks all for support!

Redx

It's Defence , no S

Adapt the template defence by coupon mad near the top of this forum , altering only paragraphs 2 & 3 , then post them below for critique

Chances are that the claimant did not comply with POFA , meaning that they do not have to get an NTK PCN to you within 14 days , they have 6 months to obtain keeper details and one month to get the PCN to the keeper or driver. Nothing to do with the IPC CoP , everything to do with POFA not being mandatory

The claimant will proceed on the presumption that the keeper and driver are the same entity , based on the balance of probabilities

The driver definitely entered into a contract when they parked on site ( it is not a written contract , but it is a contract )

You should decide if you are defending as keeper , driver , or keeper and driver for paragraph 2

You should be concisely outlining the facts in paragraph 3 , plu any actual legal arguments backing up your DEFENCE ( you haven't mentioned these yet , only spurious nonsense )

Coupon mad told you to have a draft template defence in your back pocket for this , you don't appear to have made one

Coupon-mad

My defence is based on the fact that Claimant failed to issue Notice to Keeper within 14 days thus violating IPC Code of Practice v6.

No it isn't, that's not likely to be a winning defence and definitely not, if they know you were driving (if you were).

And not issuing a NTK by day 14 doesn't void a PCN, it just means that the PPC didn't comply with the POFA 2012 and can't hold the keeper liable.  But they can hold a known driver liable.
  

Claimant's lawyer was making an argument that Claimant is pursuing claim on the basis of legal contract that has been formed when I have parked at their site. 

Yes, they would, and if they know you were driving then your planned defence is not solid.  If you were not the driver (only if that is true, of course) then you might have that defence but not otherwise.  You'd be looking for other points, such as unclear signs, or a prior right/permission to park, etc.

The template defence is at the top of this forum.  Takes half an hour to adapt; very easy.  Put the facts in as para 3, such as the type of car park and why the car was there, and if you were or were not driving then that will determine whether the POFA 2012 'NTK 14 day deadline' argument is worth including, or not.

ak_motorist

Hi All,

Thanks all for your suggestions and explanations. I have drafted defence based on the template and pasting modified paragraphs for your comments. Remaining paragraphs (4-15) from original template are unchanged.

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  (Rest of the text removed as Claimant provided witness contract statement showing that they are authorised to operate as the Creditor on site.)

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 cannot recall whether he was a driver at the time of alleged offence as it took place more than 3.5 years ago.

3. Defendant did not receive PCN at the time of alleged offence as Claimant is managing site using Automatic Number-Plate Recognition ANPR Camera system and “Notice to Keeper’ is sent by post instead.

4. Defendant did not receive “Notice to Keeper” as he moved to new address on XX/08/2017 and was unaware of offence until receiving a letter from Debt Recover Plus ltd on 09/12/17 asking to pay the debt.

5. Defendant promptly replied to Debt Recover Plus ltd on 10/12/17 requesting basic details about the offence in order to confirm it was genuine, but only received these details when Claimant has shared Claim via email on XX/XX/21.

6. Claimant cannot expect Defendant to remember details of what has happened 3.5 years after alleged offence.

7. Defendant draws attention to point 33 from Claimant’s Claim, where Claimant is emphasising importance of compliance with International Parking Community (IPC) Code of Conduct to form legally binding contract.

8. In this case, “Notice to Keeper” has been issued 19 days after the alleged offence violating 14 days limit defined in Part C, Section 5.1 (m) of International Parking Community Code of Practice thus breaking terms of the contract.

Reference: https://www.theias.org/uploads/nO2Fg-ZOR7SS0YEXy1myzN8sRw7tq4nprLtyH_EGFTI/Code of Practice v6 Amended 14th June 2017-V1.pdf

9. If Claimant have complied with terms set in IPC Code of Practice, then “Notice to Keeper” would arrive before Defendant has moved to a new address giving him opportunity to review details of alleged offence and either appeal, name driver or pay a reduced charge of £60.

10. It is denied that the Claimant has adhered to the landholder's definitions, exemptions, grace period, hours of operation, etc. and any instructions to cancel charges due to complaints. Claimant has breached IPC Code of Practice terms and point 7 of the contract agreement with landholder, “The Operator is authorised to pursue outstanding Parking Charges in accordance with the International Parking Community Approved Operator Scheme Code of Practice” and, in this case, cannot act as “The Creditor” to form legally binding contract.

Redx

Most of the above is paragraph 3 onwards , each paragraph requires a number , 2 , 3 , 4 , 5 etc

Paragraph 2 from the template defence is missing , should be one or possibly 2 sentences , based on the wording by coupon mad

ak_motorist

Thank you @Redx, defence updated.

Jenni_D

Do you have a copy of the original NTK (that went to your old address)? From this can you prove that it was issued out of time for keeper liability. (That's what para 8 seems to be saying).

Note: the IPC CoP is largely irrelevant, and a judge may not give it any weight - what matters more is Schedule 4 of the Protection of Freedoms Act 2012, which is The Law and a judge must take account of it. That's what C-m was saying yesterday.

ak_motorist

Thank you @Jenni_D! Yes, I do have original NTK with a date on it (Claimant has attached it to the Claim) and other documents/emails that I have referenced in defence.

On POFA 2012 point, this is what my local MP got as a response from them:

"We have not relied on the Protections of Freedoms Act (PoFA) to pursue this PCN so we are not obliged to deliver the Parking Charge Notice within 14 days from the contravention date."

But they did not explain what they have relied on.

Redx

The balance of probabilities is what they are relying on , meaning that the keeper was most likely to be the driver , unless proved otherwise

Because they have stated that they are not invoking POFA liability , then it's not worth mentioning it and not worth bringing in the IPC CoP to a dead argument , because as we have said before , POFA is discretionary and not mandatory

So the claimant had 7 months to get a PCN to the keeper , not 14 days

They are proceeding on the assumption that you the defendant Keeper was driving , so was the driver

POFA is only protecting you if you were NOT the driver