unpaid PCN, court hearing letter - case CLOSED

kokolino23

@Redx - thanks for your reply, paragraphs 4-18 are the same as in the Defence Template that's why I didn't post them here once more.

kokolino23

KeithP said:

In fairness @Redx, the OP has left out paras 4 to 15, presumably because they remain unchanged.

However, I can see that large chunks of paras 16 onwards have been adjusted by the OP for no good reason.

Thanks for the input, only Paragraphs 2 and 3 are related to my case, then 4-18 are the same as in the Defence Template.

Coupon-mad

Remove the adherence section but keep these, adapted as shown (and re-number all paragraphs). Put this one before you talk about the POFA (so para 3, maybe?):

-  The Defendant believes that the PCN was issued without allowing the driver a reasonable time to read the contract the onsite signage.  The timings on the Claimant's photographic evidence of the vehicle were taken from 12:32:56 to 12:33:40 which is less than 1 minute.  The PCN was therefore issued without allowing the driver any grace period to agree to any terms or conditions, which is a serious breach of the BPA Code of Practice.

And this (below) should go immediately under your para that puts them to struct proof of full compliance with the POFA (because there is no period of '42 days' in Schedule 4!)

-  A Notice to Keeper ('NTK') was sent to the Defendant which bizarrely referred to a period of 42 days.  There is no period of '42 days' (at all, not by any calculation) set out in Schedule 4 of the POFA.  This is just one example of non-compliance with the POFA in this case.  There is also a notable absence of any evidence of a breach of a 'relevant contract/relevant obligation' and/or 'adequate notice' of the parking charge on prominent signs placed where a driver could easily read the terms.

- The Defendant submits that the NTK was a 'non-POFA' (only capable of driver liability) alternative version, seen in cases where a parking operator has not been able to comply with (or does not intend to rely upon) the keeper liability provisions of Schedule 4.  Knowing that they used this particular wording in their NTK, by continuing to pursue a registered keeper who they know was not the driver, the Claimant would be (either by accident or design) misleading the court and this consumer, about liability under the only applicable law.  The Defendant submits there is no cause of action against the registered keeper and will rely on the persuasive appeal case of Excel Parking Services Ltd v Smith and the words of expert parking law barrister and Lead Adjudicator, Henry Greenslade, in the POPLA Annual Report 2015 about cases where 'keeper liability' cannot pass.

Coupon-mad

It is up to you to note those last two pieces of evidence and make sure you Google and include them both as Exhibits in your later witness statement.

We are unlikely to look back here at that time and remember this as we deal with so many cases.  You must remember/note to include them as Exhibits because your defence says you will rely on them.

kokolino23

Defence ammended as below

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DEFENCE
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Edited in my below post - Thanks a lot @c@Coupon-mad and @f@Fruitcake !

kokolino23

Coupon-mad said:

It is up to you to note those last two pieces of evidence and make sure you Google and include them both as Exhibits in your later witness statement.

We are unlikely to look back here at that time and remember this as we deal with so many cases.  You must remember/note to include them as Exhibits because your defence says you will rely on them.

Thanks a lot, I've made a note already and I'll come back here with an update once the case is making progress.

Coupon-mad

You've got two 4 and 5 numbers and need to remove the bold.

Fruitcake

Para 7 should have "defendant" and "defendant's" not "I" and "my".

kokolino23

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DEFENCE
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1.         The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question, but liability is denied. The Defendant is denying as being the driver at the time when the PCN was issued. The Defendant was not driving on the material date because was driving a different vehicle (the Defendant used a Company car). Defendant has proof of not being in the location by way of receipts and work records for the date in question. Defendant did not accept any contractual terms with the Claimant nor did the Defendant agree to pay as the Defendant was not the driver.  Only the driver could enter into any binding parking contract.  The Claimant has not provided any evidence the Defendant was the driver.

3.         The Claimant has not stated the basis the Defendant has liability. If the Claimant is relying on the provisions of Sch 4 Protection of Freedoms Act 2012 (POFA) to transfer liability for the charge from the driver on the day to the Defendant as keeper, they are put to strict proof that a Notice to keeper that fully complied with all the terms and conditions set out on POFA was served on the Defendant. It was the will of parliament that this would be the only lawful way in which the keeper could have liability for such a charge.

4.         A Notice to Keeper ('NTK') was sent to the Defendant which bizarrely referred to a period of 42 days.  There is no period of '42 days' (at all, not by any calculation) set out in Schedule 4 of the POFA.  This is just one example of non-compliance with the POFA in this case.  There is also a notable absence of any evidence of a breach of a 'relevant contract/relevant obligation' and/or 'adequate notice' of the parking charge on prominent signs placed where a driver could easily read the terms.

5.         The Defendant submits that the NTK was a 'non-POFA' (only capable of driver liability) alternative version, seen in cases where a parking operator has not been able to comply with (or does not intend to rely upon) the keeper liability provisions of Schedule 4.  Knowing that they used this particular wording in their NTK, by continuing to pursue a registered keeper who they know was not the driver, the Claimant would be (either by accident or design) misleading the court and this consumer, about liability under the only applicable law.  The Defendant submits there is no cause of action against the registered keeper and will rely on the persuasive appeal case of Excel Parking Services Ltd v Smith and the words of expert parking law barrister and Lead Adjudicator, Henry Greenslade, in the POPLA Annual Report 2015 about cases where 'keeper liability' cannot pass.

6.         The Claimant are put to strict proof of adherence with their governing body's Code of Practice, the BPA, mainly but not limited to, signage, grace periods, and predatory tactics.  Regarding grace periods their Code states drivers must be allowed a reasonable grace period prior to parking.

7.         The Defendant believes that the PCN was issued without allowing the driver a reasonable time to read the contract the onsite signage.  The timings on the Claimant's photographic evidence of the vehicle were taken from 12:32:56 to 12:33:40 which is less than 1 minute.  The PCN was therefore issued without allowing the driver any grace period to agree to any terms or conditions, which is a serious breach of the BPA Code of Practice.

8.         A Notice to Keeper was sent to the Defendant dated 28/07/XX.  This is a lawful document and on reading it, it clearly gave the Keeper (Defendant) 42 days to respond. However, the Claimant did not allow the Defendant 42 days to respond.  Instead, the Claimant sent a letter dated 29/08/XX which is before 42 days had elapsed.  The Claimant's letter reduced 42 days down to 28 days and stated:

Despite issuing a Parking Charge and writing to you previously we (UK Parking Control Ltd.) have not received payment.  As 28 days have lapsed, you, the Registered Keeper of the vehicle can be made liable for the Parking Charge. If full payment is not made within 14 days, or if we are not provided the drivers details then the charge will be passed on to our debt recovery agency.

9.         The Defendant doesn’t know what alleged terms and conditions are meant to have been broken. The Particulars of the claim simply state defendant’s vehicle was parked in breach of the terms on Claimant's signs. On receipt of photos provided by the Claimant following a SAR, the purported evidence shown to the Defendant shows a completely unreadable sign that would require a stepladder to read. The vehicle is neatly parked beside another vehicle and does not appear to be causing any obstruction, it is not in a disabled bay or parent and child bay.   

then paragraphs 10 - 24 are exactly the same as in the Defence Template P4 - P18

As a result, P13 is now referring to Somerfield in point #11 (instead of P7 and P#5 as mentioned in the Defence Template).

The photographic evicence provided by SAR is not clear at all and I can't read what are the "Parking Conditions" that were broken - maybe is worth including this as well on P9.

Many thanks

Coupon-mad

Yes you can add that the purported evidence shown to the Defendant shows a completely unreadable sign that would require a stepladder to read.

You still need to remove the bold.