Assistance reviewing my defence to submit next week

zigg123

KeithP said:

Your PCN Reference Number is still clearly visible on the second image.

The parking companies trawl this forum just waiting for people to trip themselves up and by including that information in your thread you have uniquely identified your parking incident.

This means that any 'indiscretion' made in this thread can be directly attributed to your particular parking event.

I have removed it and replaced the link thanks

zigg123

Coupon-mad said:

OK:

They have not attempted to use the POFA. They are silent about that and instead mention the Nick Jennings' case in paras 19 - 21 but they have failed to append the transcript of it, I assume?

The only problems Excel have with trying to argue that your wife was acting as your agent is firstly that the argument is stupid and wrong in law (and Nick Jennings did not attend or contest that hearing so no wonder the Judge was led up the garden path by the legal rep) but also there is the teeny weeny problem that Excel have already lost that exact argument on Appeal!  It was in a case where (like yours) the Defendant was not the driver and Excel failed to comply with the POFA Schedule 4 and tried arguing law of agency.

An Appeal Judge set out the true position and that was in Excel v Smith, for which there is a transcript that you MUST read and append to this WS.  It's hosted on the Parking Prankster's case law pages.  Google, go read it and grab it!

Remove Exhibit 11 (entrance LHS) as that image shows slightly different terms give rise to a PCN.  You do not want to show that version!

Now look at what the similar signs actually say gives rise to £100 PCN...do you spot the fatal omission I saw?  Think about what the signs say leads to a PCN.  No breach from 'failure to validate' then?  You need to point that out in your WS as it's a potential slam dunk winning point.

Now look again at all those entries on their cobbled-together log, that say 'voucher'.  Hmmm...are they meant to be validations?  But they can't be, because several of those entries inexplicably only allow the cars to have ONE minute of parking.  Others show odd times, like half an hour and an hour.  Wait!  That makes no sense.  NONE of the cars on that list have been validated for three hours, as the offer in the signs promises.  Therefore no-one used the Aldi keypad that day...or if failed, or this list is unreliable evidence.

Now search the forum for Excel v Ambler and read Lamilad's account of that case, where Excel were caught out by a Judge and a reviewing Appeal Judge.  Guess what for?  Apparently editing and changing a machine log.  Go get that Appeal Order where the Circuit Judge refused an appeal as there was sufficient evidence of tampering to render these word doc 'logs' as utterly lacking in probative value.

And remove 'offence/offense' and 'penalty', neither of which are right.  Change them.

Show is the NTK please (first PCN letter) so we can read the wording and all dates because they have very obviously not attempted to use the POFA and i stead are hoping you don't know about Excel v Smith or that thd law if agency never applies between husband and wife!

Remove the stuff about Semark-Jullien as you seem to have copied that from an old WS.

Instead use my wording I posted last night about the PAP and how it must not be used to run up excessive costs.  Read my posts from last night, go grab the new wording I suggested.  

Then let's see the next draft.

I am struggling to find your post on PAP and how it must not be used to run up excessive costs.  Which thread is it in does not come up in searches.

Coupon-mad

You don't need to search.  Read my replies on my profile. I've no idea which thread it was on as I did a marathon of replies at night.  Reading them till you find it will be useful (possibly).

zigg123

Coupon-mad said:

You don't need to search.  Read my replies on my profile. I've no idea which thread it was on as I did a marathon of replies at night.  Reading them till you find it will be useful (possibly).

found it now I know what PAP stands for Pre Action Protocol for others

link below

https://forums.moneysavingexpert.com/discussion/comment/78844345#Comment_78844345

zigg123

KeithP said:

I haven't read back through your thread, but you don't appear to be using the argument that the Claimant hasn't complied with POFA sufficiently to transfer any driver's liability to the keeper.

You really should, because the dates alone on that NTK are not good enough to transfer that liability.

The NTK has an Issue Date of 18/06/20 and states a 'Contravention Date' of 27/05/20.

A difference of twenty-three days. 

I have added the below many thanks for this:

1.     A review of the Notification to Keeper has shown it is not compliant with the Protection of Freedoms Act 2012 sch4, and so the keeper cannot be held liable. The NTK has an Issue Date of 18/06/20 and states a 'Contravention Date' of 27/05/20. This is a difference of twenty-three days and should not exceed 14 days starting with the day after the specified period of parking ends.

 

(4)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.

(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

 

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

zigg123

zigg123 said:

Coupon-mad said:

OK:

They have not attempted to use the POFA. They are silent about that and instead mention the Nick Jennings' case in paras 19 - 21 but they have failed to append the transcript of it, I assume?

The only problems Excel have with trying to argue that your wife was acting as your agent is firstly that the argument is stupid and wrong in law (and Nick Jennings did not attend or contest that hearing so no wonder the Judge was led up the garden path by the legal rep) but also there is the teeny weeny problem that Excel have already lost that exact argument on Appeal!  It was in a case where (like yours) the Defendant was not the driver and Excel failed to comply with the POFA Schedule 4 and tried arguing law of agency.

An Appeal Judge set out the true position and that was in Excel v Smith, for which there is a transcript that you MUST read and append to this WS.  It's hosted on the Parking Prankster's case law pages.  Google, go read it and grab it!

Remove Exhibit 11 (entrance LHS) as that image shows slightly different terms give rise to a PCN.  You do not want to show that version!

Now look at what the similar signs actually say gives rise to £100 PCN...do you spot the fatal omission I saw?  Think about what the signs say leads to a PCN.  No breach from 'failure to validate' then?  You need to point that out in your WS as it's a potential slam dunk winning point.

Now look again at all those entries on their cobbled-together log, that say 'voucher'.  Hmmm...are they meant to be validations?  But they can't be, because several of those entries inexplicably only allow the cars to have ONE minute of parking.  Others show odd times, like half an hour and an hour.  Wait!  That makes no sense.  NONE of the cars on that list have been validated for three hours, as the offer in the signs promises.  Therefore no-one used the Aldi keypad that day...or if failed, or this list is unreliable evidence.

Now search the forum for Excel v Ambler and read Lamilad's account of that case, where Excel were caught out by a Judge and a reviewing Appeal Judge.  Guess what for?  Apparently editing and changing a machine log.  Go get that Appeal Order where the Circuit Judge refused an appeal as there was sufficient evidence of tampering to render these word doc 'logs' as utterly lacking in probative value.

And remove 'offence/offense' and 'penalty', neither of which are right.  Change them.

Show is the NTK please (first PCN letter) so we can read the wording and all dates because they have very obviously not attempted to use the POFA and i stead are hoping you don't know about Excel v Smith or that thd law if agency never applies between husband and wife!

Remove the stuff about Semark-Jullien as you seem to have copied that from an old WS.

Instead use my wording I posted last night about the PAP and how it must not be used to run up excessive costs.  Read my posts from last night, go grab the new wording I suggested.  

Then let's see the next draft.

I am struggling to find your post on PAP and how it must not be used to run up excessive costs.  Which thread is it in does not come up in searches.

ok so I believe I have done all required and am hoping so as I need to take to Birmingham courts before closing todat. Below is the updated version would appreciate comments if you have time:

https://www.dropbox.com/scl/fi/9oaxy2ctah58b07ybgqoo/Excel-Parking-Defendant-Witness-Statement_redacted-personal-info_v0.1.docx?dl=0&rlkey=0m0y6pd2c8viw6ww6dilq85rm

zigg123

Coupon-mad said:

OK:

They have not attempted to use the POFA. They are silent about that and instead mention the Nick Jennings' case in paras 19 - 21 but they have failed to append the transcript of it, I assume?

The only problems Excel have with trying to argue that your wife was acting as your agent is firstly that the argument is stupid and wrong in law (and Nick Jennings did not attend or contest that hearing so no wonder the Judge was led up the garden path by the legal rep) but also there is the teeny weeny problem that Excel have already lost that exact argument on Appeal!  It was in a case where (like yours) the Defendant was not the driver and Excel failed to comply with the POFA Schedule 4 and tried arguing law of agency.

An Appeal Judge set out the true position and that was in Excel v Smith, for which there is a transcript that you MUST read and append to this WS.  It's hosted on the Parking Prankster's case law pages.  Google, go read it and grab it!

Remove Exhibit 11 (entrance LHS) as that image shows slightly different terms give rise to a PCN.  You do not want to show that version!

Now look at what the similar signs actually say gives rise to £100 PCN...do you spot the fatal omission I saw?  Think about what the signs say leads to a PCN.  No breach from 'failure to validate' then?  You need to point that out in your WS as it's a potential slam dunk winning point.

Now look again at all those entries on their cobbled-together log, that say 'voucher'.  Hmmm...are they meant to be validations?  But they can't be, because several of those entries inexplicably only allow the cars to have ONE minute of parking.  Others show odd times, like half an hour and an hour.  Wait!  That makes no sense.  NONE of the cars on that list have been validated for three hours, as the offer in the signs promises.  Therefore no-one used the Aldi keypad that day...or if failed, or this list is unreliable evidence.

Now search the forum for Excel v Ambler and read Lamilad's account of that case, where Excel were caught out by a Judge and a reviewing Appeal Judge.  Guess what for?  Apparently editing and changing a machine log.  Go get that Appeal Order where the Circuit Judge refused an appeal as there was sufficient evidence of tampering to render these word doc 'logs' as utterly lacking in probative value.

And remove 'offence/offense' and 'penalty', neither of which are right.  Change them.

Show is the NTK please (first PCN letter) so we can read the wording and all dates because they have very obviously not attempted to use the POFA and i stead are hoping you don't know about Excel v Smith or that thd law if agency never applies between husband and wife!

Remove the stuff about Semark-Jullien as you seem to have copied that from an old WS.

Instead use my wording I posted last night about the PAP and how it must not be used to run up excessive costs.  Read my posts from last night, go grab the new wording I suggested.  

Then let's see the next draft.

ok so I believe I have done all required and am hoping so as I need to take to Birmingham courts before closing todat. Below is the updated version would appreciate comments if you have time:

https://www.dropbox.com/scl/fi/9oaxy2ctah58b07ybgqoo/Excel-Parking-Defendant-Witness-Statement_redacted-personal-info_v0.1.docx?dl=0&rlkey=0m0y6pd2c8viw6ww6dilq85rm

Le_Kirk

zigg123 said:

ok so I believe I have done all required and am hoping so as I need to take to Birmingham courts before closing todat. Below is the updated version would appreciate comments if you have time:

Have you been told to take it to the court?  Why not send by e-mail as everyone does these days?

zigg123

Does anyone know if it is ok to submit an email to the parking firm?

KeithP

zigg123 said:

Does anyone know if it is ok to submit an email to the parking firm?

Yes of course you can do that.