Help please Court Claim received - parking charge 5 years ago - help with WS

easylifeplease

Hi, just preparing my defence, and in the meantime received the info from the SAR.

As expected, looks like non-compliance with POFA - from my understanding and reading of the threads and POFA, they have 14 days - the 'parking' was early Sep 2017 and the PCN was first sent early November 2017 - way longer.

Does this have to be mentioned in my defence at this point or leave it for the witness statement?

If I add my draft to this thread, please can someone review, I would be most grateful as getting a little lost in the threads now.  

D_P_Dance

Does this have to be mentioned in my defence at this point or leave it for the witness statement?

Defence, it is a silver bullet.

Coupon-mad

Yes, copy any other Highview final defence from this past week that deals with the POFA.  Skim-read thread titles till you find one that someone has finished (I recall a couple exist from this past week). 

easylifeplease

First draft defence posted as suggested, using the new template, and adding my own 2 - 9 including the POFA info. I would be so grateful for input - has to submitted by Monday. 

Have redacted some finer detail before posting in case of issue, and raised a couple of Qs within it, as not sure if some detail needs to be included here or not.

Many thanks in advance all

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 identity of the driver at the material time is unknown to the defendant. The Defendant was not the only insured driver of the vehicle in question of which there were a number of drivers and is unable to recall who was driving on that unremarkable day almost five years ago.

3.     The Defendant was issued a Claim Form dated XX Feb 2022 by DCB Legal acting on behalf of the Claimant Highview Parking Limited for a total amount of £313.92, which through research the Defendant has come to understand relates to a PCN that was issued against the Defendants vehicle nearly 5 years ago at XXXX retail park. [The Defendant recalls appealing to a purported parking charge many years ago, and through research has located emails to confirm the Defendant appealed to a letter from Debt Recovery Plus Ltd on XXXX March 2018 who were referring to an apparent overstay of the Defendants vehicle by 8 minutes on a retail park, but providing no evidence of who was driving or any evidence of the signage where the vehicle was apparently parked, so the Defendant appealed immediately through the correct channels but did not hear anything further so assumed it had been cancelled accordingly.]

(***Do I save [this] for the WS? I obviously have the email I sent after first hearing about this by way of debt recovery letter, and since the SAR have seen their response that I never had (as it was sent by letter, to the old address I had left in 2015, just saying it was too late to appeal). Interesting that the Debt Recovery letter must have been sent to the right address for me to have had it (no copy provided under SAR), but all the PCNs etc from HV continued to be sent to the old address, hence why I ever saw them, but I’m not sure if this needs to be said now or not or at all?)

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

5.     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 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 Paragraph 9, sub-paragraphs 4 and 5 of the POFA, which states that notice to keeper must be delivered within the relevant period. Where the relevant period is defined as the period of 14 days beginning with the day after that on which the specified period of parking ended.

6.     [The Defendant does not recall receiving the original PCN. The Defendant upon receiving the Claim Form subsequently requested a copy via a Subject Access Request (“SAR”) to Group Nexus (who through research the Defendant now understand own Highview Parking Limited) and upon receipt believes that the original PCN was not compliant with the POFA as among other things, it was not served within the relevant period. The Particulars of Claim (“POC”) states vaguely that the “PCN details are XX/09/2017” and revealed through the SAR, the PCN was in fact dated XX/11/2017, way beyond the period of 14 days beginning with the day after the specified period of parking (being XX/09/2017 referred to in the PCN dated XX/11/2017) ended, being the relevant period allowed in the POFA.]

(***Again, do I need to elaborate this much here at #6 or is this for the WS and just #5 sufficient?)

7.     In the event that the Claimant attempts to use or refer to the POFA in their witness statement or at a hearing knowing as they do that they do not comply with paragraph 9 of the Schedule, the Defendant will argue that the Dammerman test for unreasonable conduct has been reached and will seek full costs.

8.     Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in POFA, the 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 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. Which then leads to the question of how they arrive at the Amount claimed of £228.92 (The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs for the purposes of this defence point).

9.     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).

Coupon-mad

I think save the detail in 3 for WS stage.

#6 is useful as it clearly establishes this is a nonPOFA PCN.

Le_Kirk

You have some repetition in #5 & #6

easylifeplease

Final version of defence pulling together all updates from comments and threads for quick check if at all possible please

I will be emailing it over before 4pm tomorrow

Just one more query, I believe the signage there has been changed a number of times, which makes it even more vague, but any evidence I can find of this I assume would be for the witness statement anyway, and that reference to the Spurling and Thornton cases in the template defence from the Newbie thread cover this at this point anyway?

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.

2.     The Particulars of Claim (“POC”) lack specificity and are embarrassing. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

The facts as known to the Defendant

3.     It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the defendant. The Defendant was not the only insured driver of the vehicle in question of which there were a number of drivers and is unable to recall who was driving on that unremarkable day almost five years ago.

4.     The Defendant as the registered keeper of the vehicle in question at the time, notes that they cannot be held liable due to the Claimant not complying with the ‘keeper liability’ requirements set out in the Protection of Freedom Act 2012 (“POFA”), Schedule 4.

5.     In the POC it is stated that the Defendant is liable as the driver or keeper but the Claimant has failed to provide any evidence that 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 Paragraph 9, sub-paragraphs 4 and 5 of the POFA, which states that notice to keeper must be delivered within the relevant period.

6.     The Defendant does not recall receiving the original PCN. However, the Defendant upon receiving the Claim Form subsequently requested a copy via a Subject Access Request (“SAR”) to Group Nexus (who through research the Defendant now understand own Highview Parking Limited) and upon receipt believes that the original PCN was not compliant with the POFA as among other things, it was not served within the relevant period. The POC states vaguely that the “PCN details are XX/09/2017” and revealed through the SAR, the PCN was in fact dated XX/11/2017, way beyond the period of 14 days beginning with the day after the specified period of parking (being XX/09/2017, as referred to in the PCN dated XX/11/2017) ended, being the relevant period allowed in the POFA.

7.     In the event that the Claimant attempts to use or refer to the POFA 2012 in their witness statement or at a hearing knowing as they do that they do not comply with paragraph 9 of the Schedule, the Defendant will argue that the Dammerman test for unreasonable conduct has been reached and will seek full costs.

8.     Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in POFA, the 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 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 claim. 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. Which then leads to the question of how they arrive at the Amount Claimed for a Total of £XXX (The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs for the purposes of this defence point).

9.     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).

10.  The facts in this defence come from the Defendant's own knowledge and honest belief. The Defendant should not be criticised for using any pre-written wording from a reliable source. The Claimant is urged not to patronise the Defendant with (ironically template) unfounded accusations of not understanding their defence. This Defendant signed after full research and having read the defence several times, because the court process is outside of their life experience. The claim was an unexpected shock.

Followed by the rest of the template defence

KeithP

There seems to be rather a lot of detail in there about why POFA is not applicable.
Yes, leave paragraph 4 in there, but that is all you need to say about POFA in a Defence.
I believe paras 5, 6, 7, 8 and 9 would be better place in your Witness Statement.

I am not a fan of your paragraph 10 either, but I understand others may think it appropriate.

There is no mention of what the driver is accused of... not parking in a bay, overstaying a free period, not paying enough/at all?

Coupon-mad

Para 10 is from the current template!

Para 2 is not needed.

easylifeplease

Thanks so much for your input, I will have another go at it this morning.

There is no detail of what the driver was accused of in the POC other than being "in breach of the Terms on Cs signs" so I left it out as who knows what the sign said! Only knew some detail from the debt letter I appealed to way back that it was on a free car park on a retail park, but could be either an 8 minute overstay or a 38 minute overstay - the signage has changed from 1.5 hours, to 2 hours, to 1 hour - and they don't mention in the PCN or in anything we had from the SAR what it the signage actually was at the time! I was going to try to gather more on that for the witness statement.