SAR - ANPR Images not sent.

95Rollers

Have you taken a photo of the sign for the car wash offering free parking? Do you have bank statements for the car wash to attach to it - or if paid with cash, might be worth speaking to the staff to provide a quick note confirming that you used their services that day.  They must keep some sort of record to what vehicles they've serviced each time.

Rocky88

Hi Guys - thanks for the all the help, still awaiting a response from the the car wash. I suspect that the whole issue that has caused the PCN is them not registering the car, thus having no record of the car wash taking place - however, i will wait and see.


Please see the latest attempt at the Defence below for comment. Thanks as always.


3. On the 16th February 2019, The Defendant used the car wash service (Mint Car Wash) that operates within Slade Street Car Park, Ipswich. Using this service allowed the Defendant free parking 'all day'. That was the advertised offer in large lettering, at the entrance and inside the car park, that the Defendant read and accepted and had used often, with no issues. This offer is also confirmed as correct by the Claimant. The car was then left with Mint Car Wash and the keys handed over to them. upon handing over the keys, the car wash company became the keeper for the purposes of the PoFA, Schedule 4, paragraph 2 (1), which states,

2 (1) In this Schedule— ·

•  “driver” includes, where more than one person is engaged in the driving of the vehicle, any person so engaged. · 

•  “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.  

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 have 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.


6. 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.

Fruitcake

This needs a capital "U" after the full stop.

"... the keys handed over to them. upon handing over the keys, the car wash company became ..."

Rocky88

@Fruitcake - thanks amended.

AOS submitted this morning as per instructions (I take it they don't send an email confirmation for this?).

Fruitcake

Your MCOL history will tell you if/when your AoS was received.

KeithP

Rocky88 said:

AOS submitted this morning as per instructions (I take it they don't send an email confirmation for this?).

That's right.

If they were to acknowledge receipt of your acknowledgment of service of the claim, would you then feel the need to acknowledge receipt of their acknowledgment of your acknowledgment of service of the claim?

No more bureaucracy than necessary please.  

Le_Kirk

KeithP said:

Rocky88 said:

AOS submitted this morning as per instructions (I take it they don't send an email confirmation for this?).

That's right.

If they were to acknowledge receipt of your acknowledgment of service of the claim, would you then feel the need to acknowledge receipt of their acknowledgment of your acknowledgment of service of the claim?

No more bureaucracy than necessary please.  

My head just exploded!

Rocky88

Ha - yes, I can see that never ending! Thanks

Rocky88

Do i still include point 20. of the Defence Template, as the signs offering the free parking are not disputed. Sorry if i have this slightly confused - 

20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

KeithP

Rocky88 said:

Do i still include point 20. of the Defence Template, as the signs offering the free parking are not disputed. Sorry if i have this slightly confused - 

20.  In the present case, the Claimant has fallen foul of those tests. The Claimant’s small signs have vague/hidden terms and a mix of small font, and are considered incapable of binding a driver.  Consequently, it remains the Defendant’s position that no contract to pay an onerous penalty was seen or agreed.  Binding Court of Appeal authorities which are on all fours with a case involving unclear terms and a lack of ‘adequate notice’ of a parking charge, include:

So the signs made it clear that you were expected to pay £100 if the carwash people failed to deal with their parking operator properly, did they?

The signs form the contract to park.

I suggest you leave that paragraph in place.