4 Year Old PCN with bonus PCN

snores

Coupon-mad said:

Looks good to me but all paragraphs need a number so add lots more numbers and adjust the numbering of the template below your facts, accordingly.

Not sure about this line:

"As this charge is from over four and a half years ago, the Defendant has no idea who to ask about it."

Maybe change to:

As this charge is from over four and a half years ago, the Defendant has no idea which driver in the family (or company?) parked on the material dates given in the two near-duplicate claims the keeper is having to respond to.  However, it is the Defendant's case that they were not the driver, on the balance of probabilities because (what? Others drove that vehicle more often than not?  You had another vehicle you used more often?  This is a location you don't personally recognise?  Or somewhere that others in the family visited more than you in the daytime?  Or maybe this is a shopping or restaurant/pub/gym car park, and you were likely at work?).

 

Thank you for the edit, it reads much better, I was having a hard time articulating what I meant. I have checked my messages to my line manager from 2017 and I was at work on those two dates - he will sign a statement to that effect and I'll include in my WS. 

I've added more paragraph numbers and it reads better now. I'll pop the Defence for my own car below soon, I'm trying to expand the points a bit better as I can only rely on 9(2)f so I want it to read well and thorough.

1505grandad said:

"The Claimant was required to send the Notice to Hirer (NTH) to the Defendant (as Registered Keeper) within 21 days after receiving them from the lease/hire company. The Claimant failed to do so, as the date on the NTH was 18/01/2018 – which was 22 days after."

Should (this) correct?

Hi thank you for mentioning this - I was unsure too but as I am the hired vehicles keeper for the purpose of the corresponding definition under Schedule 4 of POFA, I worded it like that. Would you recommend alternative phrasing?

Coupon-mad

I'd remove the whole phrase in brackets/bold. You are not and never were the registered keeper.

Coupon-mad

Good. In these cases we normally also add references to:

(a) Henry Greenslade's words from the POPLA Annual Report 2015 about no keeper liability

(b) Excel v Smith (appeal) and Excel v Lamoureux about not being able to rely on a twisted interpretation that a family member driver was somehow acting as 'agent' on behalf of the registered keeper.

Search the forum.

Also there are DOZENS of Highview defences already written that you could have copied from!  Read some. This is already written multiple dozens of times over this year.

snores

Brill, I'll add (a) and (b).

I'm re-writing sections of both defences now after searching for more Highview threads, thank you for the advice!

snores

Last time now I promise - I've also pretty much used the same info for the hire vehicle defence (I have put an extra sentence in on that where "as the hirer of this vehicle, the Defendant is its keeper for the purpose" etc etc)

2. It is admitted that the Defendant was the registered keeper of the vehicle XXX but liability is denied. The identity of the driver on this date is unknown to the Defendant. The Defendant was not the only user of the vehicle in question and is unable to recall who was or was not driving on an unremarkable date nearly 5 years ago.

3.The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant for a Total amount of £XX (inclusive of £35 Court Fee & £50 Legal representative's costs) from an initial parking fine of £95. The Defendant understands through research that this relates to a Parking Charge Notice (PCN) that was issued against the Defendant’s vehicle XXX on 30/11/2017 at [location], which is a small retail car park with gym access parking in the basement level.

4.. The Defendant cannot recall the alleged contravention or identify the possible driver due to the time elapsed.

5. The Defendant as the registered keeper of the vehicle in question notes that they cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012 ('PoFA'), Schedule 4.

6. In the Particulars of Claim ('POC') it is stated that the Defendant is liable as the driver or keeper but the Claimant has failed to provide any evidence that the Defendant was also the driver. The Defendant cannot be held liable for the charges as the keeper of the vehicle. The Claimant did not properly serve a compliant notice to keeper in strict accordance with POFA, Schedule 4.

7. Following on from [5] & [6], where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in PoFA, Claimant has included a clear falsehood in their POC which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a Highview Parking Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also added an unidentified sum in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100.

8. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).

9. In the case of Excel v Smith (appeal), circuit judge His Honour Judge Smith gave judgement in favour of the defendant. In paragraph 13 of the judgement, it is significantly evident that the burden of proof would be on the claimant to prove the driver had made a contract on behalf of the registered keeper"

I'm planning on including POFA and highlighting the relevant passages (namely paragraph 9,2,f for this and also 13 and 14 for the hire car) in my WS rather than clogging up my defence/s with it.

Le_Kirk

snores said:

I'm planning on including POFA and highlighting the relevant passages (namely paragraph 9,2,f for this and also 13 and 14 for the hire car) in my WS rather than clogging up my defence/s with it.

Quite right, no evidence goes with a defence.

1505grandad

"....the Defendant is its keeper for the purpose" etc etc)"

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

"5. The Defendant as the registered keeper of the vehicle....."

Please make sure that copying and pasting is relevant to your circumstances before posting  -  help the forum to help you.

snores

Thanks 1505 - I have taken out all instances of RK from the defence of the hire car. I didn't want to post 2 near identical ones so I've just included the defence of my own car and the defence of the hire car will be very similar but with hirer in place of RK

Coupon-mad

Looks good to sign, date, save as a PDF and email to the CCBC. Make sure you get an email acknowledgement straight back, or it's gone into the infamous CCBC email black hole!

snores

Coupon-mad said:

Looks good to sign, date, save as a PDF and email to the CCBC. Make sure you get an email acknowledgement straight back, or it's gone into the infamous CCBC email black hole!

Brill thanks very much again CM - sent this morning for both and received auto acknowledgements back straight away thankfully