SAR - ANPR Images not sent.

Coupon-mad

Leave it in  - no changing the template - because it's talking about not prominently alerting you to the £100 parking charge 'penalty' clause). We know the FREE PARKING was in large lettering, but that's not what para 20 is taking issue with.

Remove your para 5.  Not needed at all until witness statement and evidence stage.

And check your dates... you say the incident was in Feb 2021 but a NTK was received in August?!

Read the first 12 steps in the first post of the Template Defence thread, so you are prepared and don't have to come and ask us about the standard first letters and DQ.  Further advice is only needed at witness statement stage, a few weeks pre-hearing.

Rocky88

Good point - Thanks Keith.

Rocky88

Coupon-mad said:

Leave it in  - no changing the template - because it's talking about not prominently alerting you to the £100 parking charge 'penalty' clause). We know the FREE PARKING was in large lettering, but that's not what para 20 is taking issue with.

Remove your para 5.  Not needed at all until witness statement and evidence stage.

And check your dates... you say the incident was in Feb 2021 but a NTK was received in August?!

Read the first 12 steps in the first post of the Template Defence thread, so you are prepared and don't have to come and ask us about the standard first letters and DQ.  Further advice is only needed at witness statement stage, a few weeks pre-hearing.

Hi CM - The first paragraph states 16th February 2019, unless i had it wrong somewhere else?

Paragraph 5 removed.

Ok, will do. Thanks again everyone. Been such a huge help, at a really stressful time. Will come back at the witness statement stage.

Rocky88

Defence Draft ready to go (plus points from template). 

Total Car Parks Limited

(Claimant) 

- and -  

XXXXXX

 (Defendant)

_________________

DEFENCE

 

1. The parking charges referred to in this claim did not arise from any agreement of terms. The charge and the claim was an unexpected shock. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.  It is denied that any conduct by the driver was a breach of any prominent term and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or form contracts in their own name. Liability is denied, whether or not the Claimant is claiming 'keeper liability', which is unclear from the Particulars.

 

The facts as known to the Defendant:

 

2. It is admitted that the Defendant was the registered keeper of the vehicle but was neither the keeper as defined by The Protection of Freedoms Act (PoFA) 2012 Schedule 4, paragraph 2 (1), nor driver at the material time, thus liability is denied.

 

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 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.

4.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.

 

5.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.

 

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.

Le_Kirk

Your paragraph between #3 & #4 needs a number.

Rocky88

Le_Kirk said:

Your paragraph between #3 & #4 needs a number.

Thanks @Le_Kirk. - Edited

Coupon-mad

Looks ready!

95Rollers

Defence looks great. An interesting one this. You can identify the driver as Mint Carwash as they took over possession (custody and control) of your vehicle the moment you'd handed them your car keys (which they used for the purpose of looking after it) and driving it on the site. I've heard of ones similar to this where someone dropped their car off to a MOT centre and the mechanics parked it on a private road at the back ot the centre. I cannot see this making it to court. 

Jenni_D

A company cannot be a driver, so they can only be identified as the keeper.  

95Rollers

Jenni_D said:

A company cannot be a driver, so they can only be identified as the keeper.  

Even better as there will be records to evidence this. Receipts, vehicle logged on site etc.

The fact that there is no tablet in the public area, what do they expect the owner to do - tresspass into a restricted staff area to input his VRM details onto a computer system he doesn't have access to or can operate or in all reality doesn't know exists!!!  I can see them giving up quite early.