4 Year Old PCN with bonus PCN

snores

Ah yes thanks, the extra 2 refer to keeper liability

1505grandad

Para 49  -  "It is denied that prominent signage existed at the entrance or elsewhere in the carpark; therefore,

it is (denied I am) in breach of terms and conditions."

Should (this) be "denied that the driver is"

snores

1505grandad said:

Para 49  -  "It is denied that prominent signage existed at the entrance or elsewhere in the carpark; therefore,

it is (denied I am) in breach of terms and conditions."

Should (this) be "denied that the driver is"

Yes you're completely right, thank you for pointing this out. I did copy a template and obviously hadn't edited all the non-relevant parts

snores

I've edited the bits CM suggested and edited para 49 as per @1505.

I've added in the case transcripts for Lamoureux and Smith appeal and included these paragraphs:

9. An example of case law which refutes the Claimant’s right to presume that that I was the driver is found in Excel v Lamoureux (Exhibit 02). In this case, District Judge Skalskyj-Reynolds referenced case law which states that the keeper is not the driver and that there is no such assumption. District Judge Skalskyj-Reynolds stated that ‘There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. It is trite law.’ In this same judgment, District Judge Skalsyj-Reynolds stated that if the Claimant is not relying on POFA 2012 - which the Claimant has been evidenced that they have not complied with in their Parking Charge Notice (PCN) - then they need to assert that the Defendant was the driver in which case they must provide evidence of this. The Claimant cannot provide such evidence because it does not exist. District Judge Skalsyj-Reynolds also stated that if the Claimant is asserting that the Defendant is liable as the registered keeper, then they must comply with POFA 2012. In this case, as has been evidenced above, the Claimant cannot rely on POFA 2012, having breached its requirements, nor can they pursue me as the keeper.

10. Yet another piece of case law that establishes that the keeper cannot be presumed to be the driver without POFA 2012, is Excel v Smith (Appeal) (Exhibit 03) which had initially been decided wrongly by a District Judge, before being re-heard on appeal by a Circuit Judge. His Honour Judge Smith describes Section 4 of POFA as a ‘real remedy’ which allows parking companies ‘to take proceeding against a registered keeper of a vehicle in circumstances where the identity of the driver is not known’. However, Excel’s failure to comply with POFA, just like the Claimant in this case, and the identity of the driver not being known resulted in the appeal being allowed and the claims dismissed. His Honour Judge Smith noted the main reason being the existence of this ‘remedy’ and Excel’s own decision to not comply with it.

11. Should the Claimant choose to rely on EWHC 1605; CPS v AJH Films [2015] EWCACiv1453, they should be aware that this judgment does not provide that there is a reasonable presumption that the registered keeper of the vehicle is the driver. This is trite law. The principle of employers' vicarious liability is long established in English Law (employers are liable for the actions of employees); nothing of which applies to this case. If the keeper of a private vehicle was liable for the actions of a driver, Parliament wouldn't have found it necessary to pass POFA 2012 and set conditions to pursue the registered keeper. Should the Claimant choose to rely on this judgment, then they must also be aware that it has also been dismissed in case law, for example Vehicle Control Services v Hall C9DP7T5D 12/06/2017 and the above mentioned CS049 Excel v Smith (Appeal) (Exhibit 03), as being relevant in cases where POFA 2012 has been breached, for the aforementioned reasons.

Coupon-mad

That looks great!

At the hearing, attend assuming that the Judge has read NOTHING AT ALL. 

Honestly, the law is what you voice in that hearing and Judges are very often ill-prepared and pretend they've read everything but they haven't.   Your exhibits are as much a crib sheet for you as for the Judge.  Make sure you draw the Judge's attention to Excel v Smith if they start to say that a keeper is liable for the actions of a driver and it's all your fault/if you weren't liable you should have named the driver, yadda yadda...! 

snores

Coupon-mad said:

That looks great!

At the hearing, attend assuming that the Judge has read NOTHING AT ALL. 

Honestly, the law is what you voice in that hearing and Judges are very often ill-prepared and pretend they've read everything but they haven't.   Your exhibits are as much a crib sheet for you as for the Judge.  Make sure you draw the Judge's attention to Excel v Smith if they start to say that a keeper is liable for the actions of a driver and it's all your fault/if you weren't liable you should have named the driver, yadda yadda...! 

Thank you so much CM for all your help so far - high praise coming from you.

I'll make sure I learn all the relevant talking points for all 3 case transcripts (esp Smith), the beavis case and especially POFA.

I might as well start amending this WS to fit my other claim about the hire car too. I think most of it will be the same except I need to talk about how they didn't adhere to POFA para 14(2)a and b.

Defence being emailed today and WS will be printed and dropped off at court tomorrow 

1505grandad

Perhaps another observation:-

Para 43  -  " These are now banned costs which the Claimant has neither paid nor incurred and were

not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it."

I did not agree to it.?

snores

1505grandad said:

Perhaps another observation:-

Para 43  -  " These are now banned costs which the Claimant has neither paid nor incurred and were

not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it."

I did not agree to it.?

Yes thank you 1505! I've already sent in the WS but luckily I proof-read and caught the latter.
'Not quantified in prominent lettering on alleged signage' is unfortunately something I can no longer fix but I can argue that current signage is inadequate and so logically will have been the case in 2017 (because you wouldn't have good signs in 2017 and then downgrade them to poor signs in 2022)

Jenni_D

snores said:

1505grandad said:

Perhaps another observation:-

Para 43  -  " These are now banned costs which the Claimant has neither paid nor incurred and were

not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it."

I did not agree to it.?

Yes thank you 1505! I've already sent in the WS but luckily I proof-read and caught the latter.
'Not quantified in prominent lettering on alleged signage' is unfortunately something I can no longer fix but I can argue that current signage is inadequate and so logically will have been the case in 2017 (because you wouldn't have good signs in 2017 and then downgrade them to poor signs in 2022)

Not unless you wanted to create an entrapment zone.  

Boat_to_Bolivia

Jenni_D said:

snores said:

1505grandad said:

Perhaps another observation:-

Para 43  -  " These are now banned costs which the Claimant has neither paid nor incurred and were

not quantified in prominent lettering on alleged signage. Introducing the purported 'costs' add-on in later debt demands is a moneymaking exercise to extract a high fixed sum from weaker motorists and came far too late. I did not agree to it."

I did not agree to it.?

Yes thank you 1505! I've already sent in the WS but luckily I proof-read and caught the latter.
'Not quantified in prominent lettering on alleged signage' is unfortunately something I can no longer fix but I can argue that current signage is inadequate and so logically will have been the case in 2017 (because you wouldn't have good signs in 2017 and then downgrade them to poor signs in 2022)

Not unless you wanted to create an entrapment zone.  

As if they would do such a thing!?