Backcester Lane, Lichfield, Excel Parking

Redx

Stefano123 said:

1505grandad said:

"The date of the alleged contravention was the first visit time the (Defendant) had visited the site since the change of operators from the local authority to the Claimants and thus was completely unaware the parking operator, method of payment and parking contract at this site had changed."

Should this be (driver)?  

Check that there are no similar statements.

However I think the experts will be along and perhaps say that most of the above is for the WS.

The defendant waspresent on the day but was not the driver of the vehicle. Perfectly permissible in a multi-seater vehicle?  

Then make that clear , not the driver but an occupant of the vehicle , a passenger ( if true )

Expand 3) and make it clear , defendant was hirer and a passenger , but definitely not the driver , etc

If it's not clear to us , then it's definitely not clear to a judge

Stefano123

Redx said:

Stefano123 said:

1505grandad said:

"The date of the alleged contravention was the first visit time the (Defendant) had visited the site since the change of operators from the local authority to the Claimants and thus was completely unaware the parking operator, method of payment and parking contract at this site had changed."

Should this be (driver)?  

Check that there are no similar statements.

However I think the experts will be along and perhaps say that most of the above is for the WS.

The defendant waspresent on the day but was not the driver of the vehicle. Perfectly permissible in a multi-seater vehicle?  

Then make that clear , not the driver but an occupant of the vehicle , a passenger ( if true )

Expand 3) and make it clear , defendant was hirer and a passenger , but definitely not the driver , etc

If it's not clear to us , then it's definitely not clear to a judge

For the sake of argument, if that was not the case - out of pure curiosity - given that seems to be the main defence in most aspects, would at this point in the process it be the case to admit to the hirer being the driver? To my mind it is for the Claimant to prove who the driver is. Not for the hirer to name the driver, even if the hirer was the driver?

Redx

Stefano123 said:

Redx said:

Stefano123 said:

1505grandad said:

"The date of the alleged contravention was the first visit time the (Defendant) had visited the site since the change of operators from the local authority to the Claimants and thus was completely unaware the parking operator, method of payment and parking contract at this site had changed."

Should this be (driver)?  

Check that there are no similar statements.

However I think the experts will be along and perhaps say that most of the above is for the WS.

The defendant waspresent on the day but was not the driver of the vehicle. Perfectly permissible in a multi-seater vehicle?  

Then make that clear , not the driver but an occupant of the vehicle , a passenger ( if true )

Expand 3) and make it clear , defendant was hirer and a passenger , but definitely not the driver , etc

If it's not clear to us , then it's definitely not clear to a judge

For the sake of argument, if that was not the case - out of pure curiosity - given that seems to be the main defence in most aspects, would at this point in the process it be the case to admit to the hirer being the driver? To my mind it is for the Claimant to prove who the driver is. Not for the hirer to name the driver, even if the hirer was the driver?

Then ask yourself one simple question , because you may be asked in court , unless you clarify it now

Q1 , Judge , Mr Stefano , were you the driver on the day in question ? Yes or No ( no conferring , no phone a friend , just Yes or No ! )

A1 , your honour  ( insert yes or no here ) , truthful answer only though , perjury is a serious offence )


Now read what Bargepole posted about it several months ago , the keeper versus driver argument , seeing as you have asked

My point ? If you don't clarify it now , it opens that door for you to be questioned in court , with the Q1 I asked above

If you don't , the judge will decide on it for 2 reasons

1) no denial when asked and/or no denial in the defence

2) the balance of probabilities ( OTBOP ) , that it is more likely than not that the hirer was also the driver , so 51% to 49% that the keeper/Hirer was also the driver ! So proof ? No !  The lack of a denial and OTBOP win out 

NB , Excel have already issued a court claim to you on that basis , assuming that OTBOP you were the driver , so they have already taken that decision when they issued the claim form

Stefano123

Redx said:

Stefano123 said:

For the sake of argument, if that was not the case - out of pure curiosity - given that seems to be the main defence in most aspects, would at this point in the process it be the case to admit to the hirer being the driver? To my mind it is for the Claimant to prove who the driver is. Not for the hirer to name the driver, even if the hirer was the driver?

Then ask yourself one simple question , because you may be asked in court , unless you clarify it now

Q1 , Judge , Mr Stefano , were you the driver on the day in question ? Yes or No ( no conferring , no phone a friend , just Yes or No ! )

A1 , your honour  ( insert yes or no here ) , truthful answer only though , perjury is a serious offence )


Now read what Bargepole posted about it several months ago , the keeper versus driver argument , seeing as you have asked

My point ? If you don't clarify it now , it opens that door for you to be questioned in court , with the Q1 I asked above

If you don't , the judge will decide on it for 2 reasons

1) no denial when asked and/or no denial in the defence

2) the balance of probabilities ( OTBOP ) , that it is more likely than not that the hirer was also the driver , so 51% to 49% that the keeper/Hirer was also the driver ! So proof ? No !  The lack of a denial and OTBOP win out 

NB , Excel have already issued a court claim to you on that basis , assuming that OTBOP you were the driver , so they have already taken that decision when they issued the claim form

I'm still a bit confused to be honest from that response. I would guess it depends on the SAR to see if they have any corroborating evidence confirming who the driver was.  

So IF it was the case that the hirer was the driver. It's better to admit that now and focus on the fact that the PCN was issued incorrectly having not complied with PoFA2012 (e.g. not complied with hire vehicles pre action protocol) and given it was their bloody systems that failed in the first place (I've supporting evidence I tried to pay and left when they all failed)? 

Redx

The SAR will only give you your data as a data subject , it won't clarify who was driving or not , because the PCN was issued on the assumption that the keeper ( hirer ) was the driver. If that keeper on the day was you , then the PCN and subsequent court claim all assumed that it was you who was driving ! Still does

Excel do not rely on POFA , they rely on the assumption that you were the driver , a driver has no protection under POFA , so the hire docs are irrelevant if you are found to have been the driver OTBOP , or admit to being the driver 

These companies would like to get the driver every time , because POFA doesn't enter into it , it's much simpler for them

So if you admit to being the driver , you have no POFA arguments , no missing hire documents argument , it would not feature at all , the driver was the driver , so no POFA get out at all !

This would leave , no landowner authority , no contract with the driver , poor and inadequate signage , faulty machines meaning frustration of contract , etc , grace periods to pay or go , etc ! , So technicalities 

Stefano123

So make it clear I’m not the driver or lose in court basically what you’re saying. 

KeithP

Stefano123 said:

So make it clear I’m not the driver or lose in court basically what you’re saying. 

I really cannot see how you have jumped to that conclusion.

Did you not read this in @Redx's most recent post?...

This would leave , no landowner authority , no contract with the driver , poor and inadequate signage , faulty machines meaning frustration of contract , etc , grace periods to pay or go , etc ! , So technicalities 

You've already mentioned 'no contract with the driver', 'faulty machine' and 'frustration of contract' in your draft Defence.

Stefano123

KeithP said:

Stefano123 said:

So make it clear I’m not the driver or lose in court basically what you’re saying. 

I really cannot see how you have jumped to that conclusion.

“This would leave , no landowner authority , no contract with the driver , poor and inadequate signage , faulty machines meaning frustration of contract , etc , grace periods to pay or go , etc ! , So technicalities”

Sorry I miss interpreted the first bit.

Coupon-mad

I am not seeing grounds for a counterclaim.  Pursuing a debt they honestly believe is owed and sending LBCs is not harassment.  Unless I am missing something important in your case, I think you'd be wasting a court fee on a CC.

You seem to have omitted all the rest of the template defence, unless it is in your actual draft in full (just checking you have it all)?

In your OP you said this:

 I refuse to pay the 'fine' given I would have happily paid £2 to park should their technology have allowed me to. 

But in your defence you are intent on actually DENYING driving!  Nonono.  Absolutely never lie in a court submission.  

Redx

To be clear , I am saying the following

Do not lie , so be honest and truthful
Know your case , hiding behind POFA and hirer non liability cannot work if you were the driver !
Your case does not revolve around POFA or keeper liability , not if you are the driver
I never said that you would !ose in court , not as a hirer , not even as a driver
I gave you various legal points that could win it for you , none of them rely on POFA !
You are looking for a quick get out using POFA instead of the faulty machines and frustration of contract and grace periods

POFA won't help you if you are hirer and driver , so stick to the real winners , which I mentioned

I don't believe that you found and read the post by Bargepole that I mentioned , because he explained it in clear terms !

You are beating around the bush , a wilting bush that is easily uprooted , so be honest and tell it like it is , you already have told us on here and the legal team at Excel read this forum so will probably have noted your comments.

You have no legal grounds for a counter claim or harassment , but good proper grounds to win , if used