Preparing a Defence for UK Park management

Daiapolon2021

SAR sent to Claimant and their Lawyers. Once I receive final comments on my defence above I am good to go. Thanks All.

Fruitcake

Daiapolon2021 said:

Coupon-mad said:

Well they aren’t, if the Judge asks who was driving but that bridge can be crossed if it happens.

Don’t use the forum only acronym ‘PPC’!

All,

Here is my revised defence with modifications. Took out 'PPC' from my defence as Coupon-mad suggested and added reference to Schedule 4 paragraphs 13 and 14 as KeithP suggested. 

Some questions I have, if I may:

1) I am trying to look for the appeal, but I think at the time I used the template and process as if I was the registered keeper (I thought I was but I made a mistake). Will this make a difference in the defence I need to do or I am past that? When they replied to me in writing they 'requested my details to the DVLA as the registered keeper of the vehicle'. I suppose they don't know who was driving as they asked for me to tell them that.

2) At point ii in my defence I reference that the PPC in the PCN gives an ‘observed time’ and ‘time of issue’ so hopefully I am right in raising the fact there is no parking period?

Here is my revised defence. All comments welcome.

The facts as known to the Defendant:

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

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park but there was no way to acquire one. In the Defendants opinion, if it was not possible to park there for anyone without a valid permit, it should have been stated in a different way so it was clearly understood that parking was forbidden for those who could not have any way of acquiring a valid permit and/or were not part of the nearby residential complex.

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

   iv.         The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

     v.         The Claimant also failed to abide by Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012

Thanks for all the support!

3 i)  needs more clarification.
If only permit holders are allowed to park, then there is no offer for non permit holders. Therefore the signs are forbidding in nature.
Stick to facts, not opinions nor suggest a different way of wording the signs.

If a permit is required but no instructions/method on how to obtain said permit is provided, or a permit cannot be obtained because, say, the office that distributes them is closed, then it is a term that is void for impossibility, and therefore an unfair contract term.

v)  You haven't explained how the claimant failed to comply with the strict requirements of paras 14 and 13 of the PoFA. 
State the relevant paragraphs then state what they failed to do. For example, they failed to supply the documents defined in para 13.2. See what else they failed to do, or what else they failed to supply/provide.
I would also move this point up to iii as it is another PoFA failure.

Do you have an answer if the judge asks who was driving? I gave you the only possible answers previously. Only two of those answers will help with PoFA defence points.

Daiapolon2021

Fruitcake said:

Daiapolon2021 said:

Coupon-mad said:

Well they aren’t, if the Judge asks who was driving but that bridge can be crossed if it happens.

Don’t use the forum only acronym ‘PPC’!

All,

Here is my revised defence with modifications. Took out 'PPC' from my defence as Coupon-mad suggested and added reference to Schedule 4 paragraphs 13 and 14 as KeithP suggested. 

Some questions I have, if I may:

1) I am trying to look for the appeal, but I think at the time I used the template and process as if I was the registered keeper (I thought I was but I made a mistake). Will this make a difference in the defence I need to do or I am past that? When they replied to me in writing they 'requested my details to the DVLA as the registered keeper of the vehicle'. I suppose they don't know who was driving as they asked for me to tell them that.

2) At point ii in my defence I reference that the PPC in the PCN gives an ‘observed time’ and ‘time of issue’ so hopefully I am right in raising the fact there is no parking period?

Here is my revised defence. All comments welcome.

The facts as known to the Defendant:

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

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park but there was no way to acquire one. In the Defendants opinion, if it was not possible to park there for anyone without a valid permit, it should have been stated in a different way so it was clearly understood that parking was forbidden for those who could not have any way of acquiring a valid permit and/or were not part of the nearby residential complex.

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

   iv.         The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

     v.         The Claimant also failed to abide by Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012

Thanks for all the support!

3 i)  needs more clarification.
If only permit holders are allowed to park, then there is no offer for non permit holders. Therefore the signs are forbidding in nature.
Stick to facts, not opinions nor suggest a different way of wording the signs.

If a permit is required but no instructions/method on how to obtain said permit is provided, or a permit cannot be obtained because, say, the office that distributes them is closed, then it is a term that is void for impossibility, and therefore an unfair contract term.

v)  You haven't explained how the claimant failed to comply with the strict requirements of paras 14 and 13 of the PoFA. 
State the relevant paragraphs then state what they failed to do. For example, they failed to supply the documents defined in para 13.2. See what else they failed to do, or what else they failed to supply/provide.
I would also move this point up to iii as it is another PoFA failure.

Do you have an answer if the judge asks who was driving? I gave you the only possible answers previously. Only two of those answers will help with PoFA defence points.

@Fruitcake thank you. I am revising it now. 

Daiapolon2021

Daiapolon2021 said:

Fruitcake said:

Daiapolon2021 said:

Coupon-mad said:

Well they aren’t, if the Judge asks who was driving but that bridge can be crossed if it happens.

Don’t use the forum only acronym ‘PPC’!

All,

Here is my revised defence with modifications. Took out 'PPC' from my defence as Coupon-mad suggested and added reference to Schedule 4 paragraphs 13 and 14 as KeithP suggested. 

Some questions I have, if I may:

1) I am trying to look for the appeal, but I think at the time I used the template and process as if I was the registered keeper (I thought I was but I made a mistake). Will this make a difference in the defence I need to do or I am past that? When they replied to me in writing they 'requested my details to the DVLA as the registered keeper of the vehicle'. I suppose they don't know who was driving as they asked for me to tell them that.

2) At point ii in my defence I reference that the PPC in the PCN gives an ‘observed time’ and ‘time of issue’ so hopefully I am right in raising the fact there is no parking period?

Here is my revised defence. All comments welcome.

The facts as known to the Defendant:

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

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park but there was no way to acquire one. In the Defendants opinion, if it was not possible to park there for anyone without a valid permit, it should have been stated in a different way so it was clearly understood that parking was forbidden for those who could not have any way of acquiring a valid permit and/or were not part of the nearby residential complex.

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

   iv.         The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

     v.         The Claimant also failed to abide by Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012

Thanks for all the support!

3 i)  needs more clarification.
If only permit holders are allowed to park, then there is no offer for non permit holders. Therefore the signs are forbidding in nature.
Stick to facts, not opinions nor suggest a different way of wording the signs.

If a permit is required but no instructions/method on how to obtain said permit is provided, or a permit cannot be obtained because, say, the office that distributes them is closed, then it is a term that is void for impossibility, and therefore an unfair contract term.

v)  You haven't explained how the claimant failed to comply with the strict requirements of paras 14 and 13 of the PoFA. 
State the relevant paragraphs then state what they failed to do. For example, they failed to supply the documents defined in para 13.2. See what else they failed to do, or what else they failed to supply/provide.
I would also move this point up to iii as it is another PoFA failure.

Do you have an answer if the judge asks who was driving? I gave you the only possible answers previously. Only two of those answers will help with PoFA defence points.

@Fruitcake thank you. I am revising it now. 

@Fruitcakehere is my revised defence following your comments. I address the situation of the Driver in point 3)iii and that is my position on it. Lmk if ok and if it should be in there or just ready for when I get asked the question.    

The facts as known to the Defendant:

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

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park, but there were no instructions/method on how to obtain said permit provided in the parking conditions

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The Claimant failed to abide by Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012. In particular, the Claimant did not send a Notice to Hirer that complied with the Schedule 4 of the PoFA 2012 paragraph 14.2 by including copies of documents defined in para 13.2 of Schedule 4 of the PoFA 2012. These are:

a.     a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

b.     a copy of the hire agreement; and

c.     a copy of a statement of liability signed by the hirer under that hire agreement. 

In addition to the Defendant, other drivers had the requirements to be driving the leased car.

   iv.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

     v.         The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

Fruitcake

Daiapolon2021 said:

Daiapolon2021 said:

Fruitcake said:

Daiapolon2021 said:

Coupon-mad said:

Well they aren’t, if the Judge asks who was driving but that bridge can be crossed if it happens.

Don’t use the forum only acronym ‘PPC’!

All,

Here is my revised defence with modifications. Took out 'PPC' from my defence as Coupon-mad suggested and added reference to Schedule 4 paragraphs 13 and 14 as KeithP suggested. 

Some questions I have, if I may:

1) I am trying to look for the appeal, but I think at the time I used the template and process as if I was the registered keeper (I thought I was but I made a mistake). Will this make a difference in the defence I need to do or I am past that? When they replied to me in writing they 'requested my details to the DVLA as the registered keeper of the vehicle'. I suppose they don't know who was driving as they asked for me to tell them that.

2) At point ii in my defence I reference that the PPC in the PCN gives an ‘observed time’ and ‘time of issue’ so hopefully I am right in raising the fact there is no parking period?

Here is my revised defence. All comments welcome.

The facts as known to the Defendant:

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

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park but there was no way to acquire one. In the Defendants opinion, if it was not possible to park there for anyone without a valid permit, it should have been stated in a different way so it was clearly understood that parking was forbidden for those who could not have any way of acquiring a valid permit and/or were not part of the nearby residential complex.

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

   iv.         The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

     v.         The Claimant also failed to abide by Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012

Thanks for all the support!

3 i)  needs more clarification.
If only permit holders are allowed to park, then there is no offer for non permit holders. Therefore the signs are forbidding in nature.
Stick to facts, not opinions nor suggest a different way of wording the signs.

If a permit is required but no instructions/method on how to obtain said permit is provided, or a permit cannot be obtained because, say, the office that distributes them is closed, then it is a term that is void for impossibility, and therefore an unfair contract term.

v)  You haven't explained how the claimant failed to comply with the strict requirements of paras 14 and 13 of the PoFA. 
State the relevant paragraphs then state what they failed to do. For example, they failed to supply the documents defined in para 13.2. See what else they failed to do, or what else they failed to supply/provide.
I would also move this point up to iii as it is another PoFA failure.

Do you have an answer if the judge asks who was driving? I gave you the only possible answers previously. Only two of those answers will help with PoFA defence points.

@Fruitcake thank you. I am revising it now. 

@Fruitcakehere is my revised defence following your comments. I address the situation of the Driver in point 3)iii and that is my position on it. Lmk if ok and if it should be in there or just ready for when I get asked the question.    

The facts as known to the Defendant:

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

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park, but there were no instructions/method on how to obtain said permit provided in the parking conditions

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The Claimant failed to abide by Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012. In particular, the Claimant did not send a Notice to Hirer that complied with the Schedule 4 of the PoFA 2012 paragraph 14.2 by including copies of documents defined in para 13.2 of Schedule 4 of the PoFA 2012. These are:

a.     a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

b.     a copy of the hire agreement; and

c.     a copy of a statement of liability signed by the hirer under that hire agreement. 

In addition to the Defendant, other drivers had the requirements to be driving the leased car.

   iv.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

     v.         The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

You haven't mentioned anything in 3 i about the signs being forbidding in nature, and that there is no offer to motorists without a permit. This means there can be no consideration and no acceptance as far as a motorist without a permit is concerned.

3 iii is much better, but I still think there is room for improvement.

 iii.         The Claimant failed to abide by the strict requirements of Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012. In particular, the Claimant did not send a Notice to Hirer that complied with the Schedule 4 of the PoFA 2012 paragraph 14.2 by including because it did not include copies of documents defined in para 13.2 of Schedule 4 of the PoFA 2012. These mandatory documents are:

a.     a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

b.     a copy of the hire agreement; and

c.     a copy of a statement of liability signed by the hirer under that hire agreement. 

In addition to the Defendant, other drivers had the requirements to be driving the leased car.

If the defendant was not the driver, then say so. Alternatively you need to state that other motorists were authorised to drive the leased car, (you don't need to name them), state the number of named drivers if relevant, and that you do not know (or cannot be expected to know) who was driving on an unremarkable day X months/years ago. You then need to put the claimant to strict proof that the lessee was the driver at the time of the alleged event.

Daiapolon2021

Thanks @Fruitcake
I hope this is new version is OK as Claim form issue date is 9 August so I believe I have till 11th of September to file. You said I have till the 13th at 4pm and i hope I am wrong. Also, is there a required font and font size?

Here is the revised Defence. Let me know if anymore comments of course I will be checking till late today. Thanks!

The facts as known to the Defendant:

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

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park, but there were no instructions/method on how to obtain said permit provided in the parking conditions. As solely permit holders are allowed to park, there is no offer for non-permit holders. Therefore, the signs with the parking conditions are forbidding in nature. In said respect, there can be no consideration and no acceptance as far as a motorist without a permit is concerned.

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The Claimant failed to abide by the strict requirements of Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012. In particular, the Claimant did not send a Notice to Hirer that complied with the Schedule 4 of the PoFA 2012 paragraph 14.2 because it did not include copies of documents defined in para 13.2 of Schedule 4 of the PoFA 2012. These mandatory documents are:

a.     a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

b.     a copy of the hire agreement; and

c.     a copy of a statement of liability signed by the hirer under that hire agreement.

As at least another motorist was authorised to drive the leased car, and the Defendant does not recall with precision who was driving on the 3rd of August 2019 (which is now more than 2 years ago), the Claimant would therefore need to provide proof of who was driving on the 3rd of August 2019.

   iv.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

   v. The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

Coupon-mad

Change 2 to lessee/hirer.  

Jenni_D

Coupon-mad said:

Change 2 to lessee/hirer.  

Agreed. And be aware that in a case reported just this week a judge wasn't aware that a hirer and a lessee are one and the same as far as POFA is concerned; that judge thought POFA only related to a Hirer.

Daiapolon2021

thanks @Coupon-mad and @Jenni_D that is done now. Lmk if any more comments pls. Current version below:

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the lessee/hirer of the vehicle in question but liability is denied.

3.  To the Defendant’s best knowledge:

      i.         In the parking conditions, the Claimant stated there needed to be a valid permit to park, but there were no instructions/method on how to obtain said permit provided in the parking conditions. As solely permit holders are allowed to park, there is no offer for non-permit holders. Therefore, the signs with the parking conditions are forbidding in nature. In said respect, there can be no consideration and no acceptance as far as a motorist without a permit is concerned.

    ii.         In issuing the PCN, the claimant has failed to comply with the Protection of Freedoms Act 2012. Under the conditions that have to be met for the right to claim unpaid parking charges from the keeper of the vehicle (Paragraph 4), Paragraph 7(2)(f) states that the notice to the keeper must 'specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.' The claimant has failed to specify the period of parking. The PCN states a time of 20:29, which is not a period of time.

   iii.         The Claimant failed to abide by the strict requirements of Schedule 4 in paragraphs 13 and 14 of the Protection of Freedoms Act 2012. In particular, the Claimant did not send a Notice to Hirer that complied with the Schedule 4 of the PoFA 2012 paragraph 14.2 because it did not include copies of documents defined in para 13.2 of Schedule 4 of the PoFA 2012. These mandatory documents are:

a.     a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

b.     a copy of the hire agreement; and

c.     a copy of a statement of liability signed by the hirer under that hire agreement.

 

As at least another motorist was authorised to drive the leased car, and the Defendant does not recall with precision who was driving on the 3rd of August 2019 (which is now more than 2 years ago), the Claimant would therefore need to provide proof of who was driving on the 3rd of August 2019.

 

   iv.         The photographic evidence of the front of a vehicle windscreen, on the Claimant's Formal demand letter, does not clearly show that the photo in question is of the Defendants vehicle. There are no identifying features in this photo that suggest it is of the Defendants vehicle, such as a number plate or vin number.

The photographic evidence provided shows the vehicle situated in an area with no clear marked bays; therefore, it has not been made clear and obvious where the claimant constitutes where drivers are made liable for parking charges.

Coupon-mad

Looks fine.