Total Parking Solutions County Court Claim - Questions

Katjiepiering

Hi

Thank you for this helpful thread and taking the time to answer all of the questions. I have read the newbies posts and hope that I wont make the mistake of asking you to repeat info which is already stated there.

Quick summary:
Parked for approximately 150 minutes in a parking lot with max stay of 120 minutes.
Alleged parking event happened on 2 November 2020.
First notice received on 10 November 2020.
No contact has been made with Total Parking Solutions other than a subject access request on 16 August 2021 - they were quick to respond and all info were received on 17 Aug.
The driver has not been identified
Received Claim Form dated 06 Aug 2021.
Acknowledgement of service was submitted on 16 Aug and received on 17 Aug.

I am now working on the Defense which I understand needs to be submitted by 8 September 2021.

My questions:
1. In the defense, point 3, it states "and you might be taking the point that the Defendant cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4." I am not sure if this is true as I don't fully understand that point of the Act. In TPS's first communication (10.11) it says "liability for this PCN lies with the driver of the vehicle" and then goes on to reference the PFA act and explaining that within 28 days they have the right to recover from the keeper. So am I right in thinking that they did comply with keeper liability?

2. Do I need add a string of other facts for my case or is the defense strong enough to stand on it's own? I have been back to the parking lot since and I think it would be difficult to claim that the signs were not clear.

Thank you!










 

KeithP

Katjiepiering said:

Received Claim Form dated 06 Aug 2021.
Acknowledgement of service was submitted on 16 Aug and received on 17 Aug.
 

With a Claim Issue Date of 6th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 8th September 2021 to file your Defence.

That's over a week away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Le_Kirk

It's a defence (no "S" in UK spelling) it's not a parking lot, it's a car park (we are not American).  Use this link: -
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted
to look at POFA and check the wording (word by word) and make sure they do not comply, then you have defence as "no keeper liability".  Otherwise you are down to trying to find a reason for a 30 minute overstay, signage perhaps, maybe it was not clear [you say it was but you should put the claimant to strict proof].  Have the restrictions for maximum stay changed recently?  Have you tried Plan A in the NEWBIE sticky, a complaint to the landowner?

Redx

1) only you know if the claimant TPS complied with POFA , either they did , or they didn't , so you compare the NTK PCN details with POFA , as the newbies FAQ sticky thread tells you , before the initial appeal , it also tells you to follow plan A first, before plan C which is Popla , none of which appears to have been done !! ( Foolish to ignore those 3 steps !! )

If the claimant has complied with POFA , then as keeper you are deemed to be liable or accountable for any actions of your vehicle !

If you were keeper and driver , then you are doubly liable , or accountable , POFA does not help or assist a driver at all !!

2) poor signage and no landowner authority , possibly PCN failures and BPA CoP failures may all assist any DEFENCE ( no S in the word Defence , change your keyboard to UK English , not USA )

It's a car park , not a lot ! Please use UK terminology because it's a UK case , you have a week to prepare and submit your Defence , no exhibits are submitted with the defence , save them for your WS in several months time

90% of your defence is already written , but this was easier to deal with last year , much harder to win in court , especially if you haven't tried the usual procedures first , plus you haven't complained about it to the landowner either

To be blunt , you haven't done anything correctly yet , apart from acknowledging the claim etc

You ask if your Defence is sufficient , neither we nor the judge know what your Defence is , so please tell us

Katjiepiering

Thank you for your help! Apologies for the spelling and terminology errors. Still getting to grips with everything UK as we only moved here from South Africa a few years ago. 

@Redx, I operated under the old advice to ignore parking tickets but have since realised my mistake. I have only discovered this thread when the court claim was received. Would it make any difference to complain to the landowner now? I did ask for help from The Range (the shop at the car park) but they explained that there was nothing that they could do. 

How would you recommend I proceed? I had high hopes after reading this on the Newbies thread:
If you get a court claim, don't panic, 99% of defendants here, win! Is this not applicable because I am only engaging in the process now?

Should I just pay the fine?

D_P_Dance

Have you complained to your MP?

Redx

There is no fine , it's an invoice , no different than from a plumber or a garage , invoice for a breach of contract regarding the parking rules on the site , so presumably under contract laws for England and Wales

It's never too late to complain to the landowner , which won't be the Range , you have assumed that the retailer own the land , I doubt it !! Just like a tenant doesn't own the house or flat they rent

I did say above that we only know what you said , the full facts elude us , so I have no opinion on your case , due to not enough information ( no Idea who owns the land , we haven't seen the contract between landowner and TPS , we haven't seen a redacted copy of the PCN NTK , we haven't seen pictures of the signage , we don't know if TPS complied with the laws , we don't know what your Defence is either , you haven't told us , nor did you appeal last year , you ignored everything until the court claim arrived )

I appreciate that you moved here from a foreign country , but as a resident here you are subject to legal processes and procedures and laws , yet you appear to have thought that they don't apply to you

Sorry to be blunt , but you haven't helped yourself so far , apart from asking us for advice ,case can give opinions and explanations , we cannot offer legal advice , you pay a lawyer for legal advice , which is what Martin Lewis would tell you to do ( expensive course of action )

When you post your paragraphs 2 and 3 , we may assist you , until you do , we can only point out the facts as we know them so far

I hope that this explains the replies so far ? We haven't seen your 2 & 3 yet

Ps , the advice to not ignore a private PCN changed on here in March 2013 , after POFA 2012 in October of 2012 meant changes were required. Surely you were not following 10 year old advice ? Your PCN occurred 8 years after the law changed and 7.5 years after the advice changed , I know because I came on here first in summer of 2013 to assist my son with one

Katjiepiering

I am aware that The Range is not the landowner but tried the retailer approach as suggested in the Newbie thread. I am also aware that I have started this process quite late. I am here to ask how to proceed and would really appreciate your help with that rather than pointing out all of my errors so far. 

Please see PCN, actual signage and Court Claim below.

From reading carefully through the PCN and the POFA it seems like they have done everything right?

The landowner is HENRY STREETER (AUTOMOTIVE) LIMITED. I am currently looking into getting contact details for them to lodge a compliant. 

I will now action:
1. Complain to landowner
2. Request the landowner contract from TPS
3. Complain to MP
 

My paragraphs 2 and 3 are:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. 

3. The defendant first learned about the parking charge by post on 13 November 2020 and felt harassed by the bombardment of ‘debt recovery’ letters. 

I haven't added anything else to these paragraphs yet as I wanted to get some guidance. I don't have a black and white reason for overstaying such as a car key being lost or being disabled. 

I am not sure if explaining the emotional circumstances behind the apparent transgression would mean anything to you or a judge for that matter. The point is that the parking limit was overstayed and the fine (or invoice) for that transgression seems to be out of proportion. 

Redx

The out of proportion argument died at the Supreme court in 2015 with the Beavis case

A defence does not contain excuses or mitigation , it contains a brief outline of the facts , refutes the allegations and points out any legal challenges

Your personal witness statement in several months time can point out mitigation or personal opinions etc

So I agree with you that I see no Defence according to what you have written so far , or in 3 above

We won't write it for you , but we will ALWAYS point out the errors , in order to make it better , it's your homework that is being marked , so yes it's like school. It's not to belittle you , everyone gets the same third party treatment and critique , hence why it's all critique , it's free advice from lay representatives who are assisting you , for proper legal advice you pay a solicitor , if you can find one to take it on, at a high price

In 2 , the driver should be admitted , or denied , or cannot recall on an unremarkable day so long ago. The caveat is POFA , if they complied with POFA , then say keeper and driver , not just Keeper , if true , it seems to me that they complied with POFA and the signage seems ok too

Your arguments above should have been dissected 9 or more months ago , Court is a completely different scenario , to making assumptions and ignoring threats of legal action

Debt collection letters are standard business practice , so no traction on that front either

To be clear , I don't know what your defence for 3 is either , so I do not have any suggestions for 3

2 needs fixing so that the judge or claimant don't ask who was driving in court

The original PCN was for £70 , so less than the £100 maximum and less than the £85 in the Beavis case , reduced to £40 for early payment 

B w legal have inflated it to £129 , adding about £50 on that should not be there , known as double recovery

£155 is the correct total based on the court claim , if you lose in court , the Beavis case sets their case out , difficult to argue against

ignavia

There are several shops in that retail park. Presumably the reason for overstay was visting / browsing at some of them? Maybe the CEO's of those stores would want to keep a customer?

Le_Kirk

As I said in my reply to your original post, it is down to you to find a reason for being there for 30 minutes longer that the purported 2 hour maximum stay.  Were you delayed in a store making a large purchase, was there a huge queue in one or more stores (get hold of the store personnel and get a cancellation letter).  Were there huge queues to get out of the car park?  All of this goes in your witness statement later in the process but for the defence it is simply a matter of stating "the defendant was prevented from leaving the car park due to a)..... b)..... or c)....."  But keep that a, b & c short and punchy.  Is the 2 hour stay allowed?  It might be worth getting hold of the local council planning department and seeing if you can find the original planning application, there might well have been conditions attaching to the grant of permission, for example a limit of 3, 4 or more hours!