Urgent defence help please! Claim made by CEL

Tricky_1

Back of the NTK

Tricky_1

Back of the NTK 

Redx

Ok , so it seems like cel complied with POFA , so defend as an admitted driver , no POFA stuff

Post your proposed draft of paragraphs 2 and 3 below ASAP , for critique

Tricky_1

Below are my paragraphs 2 & 3. I also wrote a 4, 5 and 6 so that I was able to coherently organise and state some specifics of my case. Of course I will amend/delete at the suggestion of more experienced and knowledgable forumites!

The template continues unammended after that with Paragraph 4 from the template now becoming Paragraph 7.

Many thanks for your kind help in advance.

The facts as known to the Defendant:

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

 

3.  The Defendant drove 2.5 hours to drop off a present that he had sold on Ebay so that the recipient would receive it in time for Christmas day. Afterwards, the Defendant spotted a KFC where they stopped to purchase a drive through before the 2.5 hour journey back. He was unfamiliar with the area and the road layout seemed complicated. The Defendant parked in the KFC car park and remained in their car whilst they ate their food. Afterwards, the Defendant felt intensely nauseous and thought it was unwise to drive at that moment. So he decided to wait and hope that the feeling of nausea would subside so that he would be able to drive the 2.5 hours back. The Defendant really felt very unwell and genuinely thought driving could have endangered the lives of his fellow motorists. Soon enough though, he felt a little better and decided that he was able to safely drive and return home.

The Defendant was completely unaware of any parking restrictions and indeed the thought didn’t even cross his mind as he was a bona fide customer stopping for a drive through – exactly the same as he had done many times in different places and had never received a fine.

Eight days later however, a “PCN” for an alleged overstay of just 15 minutes was sent to the Defendant’s address by the Claimant, Civil Enforcement Limited (CEL). His mother also lives at this address and she is immunocompromised (due to medication taken for arthritis). Before receiving this “PCN”, the Defendant had taken the difficult decision to isolate at another address in order to protect her over the Christmas lock down. For this reason, he never got the initial PCN and the chance to pay the £60 reduced charge. He only found out about it when the amount had increased to a completely unjustifiable £140 and was on the receiving end of a barrage of threatening and intimidating letters from the Claimant and their appointed third party agents.

 

4.  Through Google maps, it can be seen that there are parking signs visible at the entrance to the KFC but the road layout is complex and quite baffling if one had never driven there before. It is unfair to position signs at a spot where drivers would be concentrating on not driving through a no-entry or the wrong way down a one-way system – such things directly affect the safety of drivers and pedestrians so it would be natural for a driver to prioritise these things rather than looking for parking signs. The Defendant stresses it is unclear whether these signs were present at the time of the alleged contravention.

5.  ANPR information indicates that the Defendant entered the site and left in a period of exactly 1 hour and 15 minutes. However, the claimant has not shown evidence of how long the Defendant was actually parked for. Given the time taken to enter the site, queue for the drive through, choose from an extensive menu, order, pay, wait to collect the food and find a parking space before the parking event finally commenced, it is unlikely that the Defendant actually parked for longer than 1 hour. Furthermore, even if the parking event had lasted longer than the 1 hour allowed it would only have been by a matter of minutes and therefore would comfortably fall within the Grace Period agreed by the Claimant itself and their landowner client. I refer to the BPA’s Code of Practice 13.3 which states, “Where a parking location is one where a limited period of parking is permitted, or where drivers contract to park for a defined period and pay for that service in advance (Pay & Display), this would be considered as a parking event and a Grace Period of at least 10 minutes must be added to the end of a parking event before you issue a PCN.”

 

6.  The Defendant was a bona fide drive through customer of the landowner and used their car park in good faith – it is felt that the attempt by the Claimant to use its agreement with the landowner in order levy this exorbitant fee is not in keeping with the spirit in which the landowner had intended the agreement to be used. Indeed, the parking restrictions that CEL claim are in place serve to prevent drivers from abusing the car park in order to shop in other premises or other such abuses that prevent genuine KFC customers from being able to use the car park. As has been demonstrated here and can be backed up by CCTV at the premises, the Defendant has not abused the car park.

 

7.  The Particulars of Claim set out an incoherent statement of case and the quantum has been enhanced in excess of any sum hidden in small print on the signage that the Claimant may be relying upon.  Claiming ‘costs/damages’ on an indemnity basis is stated to be unfair in the Unfair Contract Terms Guidance, CMA37, para 5.14.3.  That is the official Government guidance on the Consumer Rights Act 2015 ('CRA 2015') legislation which must be considered, given the duty in s71.  The Defendant avers that the CRA 2015 has been breached due to unfair terms and/or unclear notices (signs), pursuant to s62 and with regard to the requirements for transparency and good faith, and paying regard to examples 6, 10, 14 and 18 in Sch2.  NB: this is different from the UTCCRs considered by the Supreme Court, in that there is now a requirement for contract terms and notices to be fair.

etc. etc.

Coupon-mad

I reckon that PCN didn't arrive in time.

Tricky_1

Coupon-mad said:

I reckon that PCN didn't arrive in time.

PCN was issued on Christmas Eve, 8 days after the event. I'm not really sure when it arrived as I wasnt there but realistically, at that time of year, it would have been 28th at the earliest. Is that within the prescribed POFA time limit? I was under the impression it was 14 days.

Coupon-mad

Think about the bank holidays added.

Tricky_1

Coupon-mad said:

Think about the bank holidays added.

Hi Coupon-mad,

Please could you clarify how you interpret the 14 day limit? Is it 14 days from the parking event regardless of any holidays in that period? Is there a number of days after posting by which the NTK is deemed to be delivered?


If it is 14 days from the parking event (16th Dec) regardless of holidays then the NTK must have arrived by 30th Dec. It was posted on 24th. Given weekends and bank holidays, this leaves 2 working days, the 29th and 30th for it to be delivered. 

Would it be reasonable in the eyes of the court if I said it was delivered after the 30th?

Redx

It's an aspect to think of , because it would breach POFA , meaning that as keeper you wouldn't be legally liable , if true !

It doesn't help an admitted driver , POFA never does , SSO that is something else to think of

It's deemed delivered 2 days later , so the answer my be , it may have failed , if argued correctly , but a moot point for anyone who is an admitted driver , so think carefully about the legal position

It is for the claimant to prove their case , a defendant doesn't have to prove anything , but can allege that the claimant has failed , for numerous reasons

Coupon-mad

Would it be reasonable in the eyes of the court if I said it was delivered after the 30th?

Yes but I was only musing. It almost certainly was not likely to be posted on.Xmas eve morning.

If you know you were driving though, and have other defence grounds, maybe stick with your version.  You can't argue 'no keeper liability' if you are admitting to driving.