SAR - ANPR Images not sent.

KeithP

Rocky88 said:

I have now received the claim form (issue date 15th August 2022). 

Please advise if i should start a new thread, just after a bit of advice going forward with this.

Please do not start a new thread. Keep everything about this one alleged parking incident in one place.

With a Claim Issue Date of 15th August, you have until Monday 5th September to file an Acknowledgment of Service. Do not file an Acknowledgment of Service before 20th August, but otherwise there is nothing to be gained by delaying it. 

To file an Acknowledgment of Service, follow the guidance in the Dropbox file linked from the second post in the NEWBIES thread.

Having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday 19th September 2022 to file your Defence.

That's over four weeks away. Plenty of time to produce a Defence, but please don't leave it to the last minute.

To create a Defence, and then file a Defence by email, look again at the second post on the NEWBIES thread - immediately following where you found the Acknowledgment of Service instructions.

Don't miss the deadline for filing an Acknowledgment of Service, nor that for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

car park offers all day parking if you pay for a car wash (operated by a separate company within the car park). this has been done many times by my partner without issue. The car is parked in the designated car wash area and the keys are handed over to the car wash company. Total Car Parks Limited picked up on the ANPR system that the car flagged up as not paying for parking.

The only thing i can think has happened is that the car wash company have moved the car during/after the wash process to a bay, that is outside of the designated car wash area and as such has been flagged up by the ANPR camera. 

Nope, the car wash staff forgot to exempt your VRM that day. This system relied on them exempting the cars using the car wash, by typing in VRMs into a keypad that you never saw but did exist. That's how these systems 'work' in the context of ANPR operated car parks.

Therefore there was no relevant contract nor relevant obligation breached by the driver.  Parking was offered free to drivers using the car wash. That was the advertised offer in large lettering that the driver read and accepted and had used often, with no issues.

On the material date, there must have been a failure of the Claimant's keypad VRM exempting system, caused either by human error/oversight of the car wash staff, or alternatively, by failure or buffering of the online system itself. All of this was unbeknown to the driver and completely out of the driver's control.  Drivers were not even aware there was a back office 'VRM exempting' keypad or online system and the Defendant has only learned about this from advisers, when preparing this Defence. There was no requirement upon the driver to do anything themselves to exempt their car except to use the services of the car wash, which the Defendant did, as usual, doing nothing differently from any other occasion and leaving the car in the wardenship of the car wash staff.  There was no breach by the driver, by conduct or otherwise, and no parking charge could have arisen.

In the alternative, it is a fact that the Defendant was not 'in charge of' the vehicle at the material time. The Defendant was neither the 'keeper' nor the driver at the time of the alleged breach.  By leaving the car with the car wash company for several hours, they were the 'keeper' under the POFA 2012 definition.  The 'keeper' during an alleged parking event does not at all times remain the registered keeper in a case where the car was in fact being 'kept' for that period, by another party.  Further, the Defendant was absent and was not driving at the material time, either.  There can be no liability on the part of the Defendant at all, not even keeper liability in this case.

The Claimant is put to strict proof, if their case argues facts to the contrary, including stating whether they are relying upon Schedule 4 of the POFA, and on what basis they are trying to hold the Defendant liable.

Mouse007

Coupon-mad said:

That was the advertised offer in large lettering ...

The Carbolic Smoke Ball case, I remember that from my studies 30 years ago

Rocky88

Thanks Coupon Mad - that's brilliant, much appreciated.

Any advice on the below points would be appreciated. 

First attempt at Defence....

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 parked the car at Slade Street Car Park on 16th February 2019. The defendant used the car wash service (Mint Car Wash) that operates within Slade Street Car Park. Using this service allowed the defendant free parking 'all day'. This is confirmed by signage and confirmed by Total Car Parks Limited. The car was parked in the designated area to be washed. The keys handed over to Mint Car Wash. There was no requirement for the Defendant to do anything themselves, except use the services of the car wash, which the defendant did. On the material date, there must have been a failure of the Claimant's keypad VRM exempting system, caused either by human error/oversight of the car wash staff, or alternatively, by failure or buffering of the online system itself. All of this was unbeknown to the defendant and completely out of the defendant's control. Drivers were not even aware there was a back office 'VRM exempting' keypad or online system and the Defendant has only learned about this from advisers, when preparing this Defence. There was no requirement upon the driver to do anything themselves to exempt their car except to use the services of the car wash, which the Defendant did, as usual, doing nothing differently from any other occasion and leaving the car in the wardenship of the car wash staff.  There was no breach by the Defendant, by conduct or otherwise, and no parking charge could have arisen.

4.In the alternative, it is a fact that the Defendant was not 'in charge of' the vehicle at the material time. The Defendant was neither the 'keeper' nor the driver at the time of the alleged breach.  By leaving the car with Mint Car Wash  for several hours, they were the 'keeper' under the POFA 2012 definition.  The 'keeper' during an alleged parking event does not at all times remain the registered keeper in a case where the car was in fact being 'kept' for that period, by another party.  Further, the Defendant was absent and was not driving at the material time, either.  There can be no liability on the part of the Defendant at all, not even keeper liability in this case.

5. The Defendant received a PCN from the Claimant on 27th August 2021. When contacted to investigate how this error could of occurred , the Claimant stated that they couldn't contact Mint Car Wash any longer due to it 'changing hands'. However, a simple internet search shows that they still operate within the same town with clear email and telephone contact details. 

Jenni_D

In this specific case I wonder if para 2 should be changed?

2. It is admitted that the Defendant was the registered keeper of the vehicle at the material time; it is denied that the Defendant was the keeper or driver at the material time thus liability is denied.

Thoughts?

Le_Kirk

Rocky88 said:

5. The Defendant received a PCN from the Claimant on 27th August 2021. When contacted to investigate how this error could of have occurred ,

Please correct this grammatical error and note that there is no space after a word where you are putting a comma, though that might have been a typo.  The defence looks fine especially as you have used @Coupon-mad's words and assuming you add in the rest of the template before sending it by e-mail to the CCBC as per the advice in the template defence  thread/discussion.

Coupon-mad

Jenni_D said:

In this specific case I wonder if para 2 should be changed?

2. It is admitted that the Defendant was the registered keeper of the vehicle at the material time; it is denied that the Defendant was the keeper or driver at the material time thus liability is denied.

Thoughts?

I agree.

The D was thd registered keeper but was not the driver or the 'keeper' (POFA definition) once they handed the car and the keys over to the staff and left (if I have understood what happened correctly).

Rocky88

Thanks for all the help so far everyone - I will change that paragraph as suggested.

Just one point @Coupon-mad. Should the following bit be included when I don’t know this for sure:

 ‘Drivers were not even aware there was a back office 'VRM exempting' keypad or online system and the Defendant has only learned about this from advisers, when preparing this Defence’.

Coupon-mad

Yes because that is how the system works.

100% certain.  Your car was NOT captured in a bay, that's not how ANPR works.

Your car was simply not exempted that day.

And I gave the Claimant a get-out (a chance to tell you that you are wrong) that you seem to have missed:

The Claimant is put to strict proof, if their case argues facts to the contrary, including stating whether they are relying upon Schedule 4 of the POFA, and on what basis they are trying to hold the Defendant liable.

KeithP

Rocky88 said:

Just one point @Coupon-mad. Should the following bit be included when I don’t know this for sure:

 ‘Drivers were not even aware there was a back office 'VRM exempting' keypad or online system and the Defendant has only learned about this from advisers, when preparing this Defence’.

Well there must have been some process for exempting vehicles that were left with the car wash people.

Since you know the car wash company are still in the area, why don't you go back to them and find out for sure what the process is/was?