Please help!

Hatebeingdone

Coupon-mad said:

No it is totally relevant for the keeper to say they were not driving, but that the signs are pants (could be based on local knowledge, or going there recently, to specially have a look due to the court threat, or asking the driver, or Googling the place and finding it's a cash-cow entrapment site where people are commonly caught out).

It is easy to spot the lack of 9(2)f warning and you will need to know this to explain it to the Judge, who may not be familiar with Schedule4 POFA.

Thank you! Can I use your very long write up about poor signs. I think you wrote it for the appeal stage but most is relevant to defence I think? Do I need to look up the links and explain them if I use it?

Coupon-mad

No.  It's not suitable for a defence.  The template defence already covers unclear signage anyway!  You need to read it all to know what's already there.

All you add is the same stuff everyone does in any Highview case where the POFA and Henry Greenslade are mentioned.  Just copy one.

Hatebeingdone

Coupon-mad said:

No.  It's not suitable for a defence.  The template defence already covers unclear signage anyway!  You need to read it all to know what's already there.

All you add is the same stuff everyone does in any Highview case where the POFA and Henry Greenslade are mentioned.  Just copy one.

Okay thanks! Sorry I have not read all the template defence yet as I am working on my bits. Your time is VERY MUCH APPREICIATED. 

Hatebeingdone

Happy Easter! I am sorry that this was not completed before Easter.  When someone has the time, I should be grateful if they could check this defence.  I will obviously add the rest of the template to this. It needs to be sent via email by Tuesday at 4 p.m.

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

DCB LEGAL LTD

(Claimant) 

- and -  

XXXXXXX

 (Defendant)

_________________

DEFENCE

 

1. 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 gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.

The facts as known to the Defendant:

2.  The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant Highview Parking Limited (Now Nexus DPO Ranger) for a total amount of £287.34 (inclusive of £35 Court Fee & £50 Legal representative's costs). The Defendant has come to understand that this relates to a PCN that was issued against the Defendant’s vehicle XXXXXX, almost 6 years ago on xx/xx/201X at XXXXXXXX, XXXX. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The defendant denies ever driving the car in the area stated in the PCN. The car insurance was in the defendant’s spouses name with the defendant as a named driver. The defendant is not able to identify who was driving the car on an unremarkable day nearly six years ago because other family members had use of the car.

3. The Defendant believes that as the Notice to Keeper is not POFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper because the Notice Keeper does not warn the keeper that, if after a period of 28 days, Highview Parking Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. Highview Parking Ltd. (now Nexus DPO Ranger)(or their legal team, DCB Legal limited) need to pursue the driver for the charge, not the registered keeper.

Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, the Claimant has included a clear falsehood in their POC which was signed under a statement of truth by the Claimant's legal representative.

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)

4. An occupant of the car holds a Blue Disabled Badge and the car would have been parked in a disabled bay. This car park is open to the public and therefore the landowner, managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011.

In this case the service providers did not make reasonable adjustments for disabled customers and are in breach of the Equality Act 2010. The situation is that I was sent a PCN for allegedly 'overstaying' an arbitrary time limit imposed as a fixed amount of time for parking. The occupants of the car had no idea there was an arbitrary time limit due to the very small notices which were not near the disabled parking bays at the time and were high up on posts. It was reasonable to assume that displaying a Blue Disabled Badge would allow three hours parking. Nexus DPO Ranger (previously Highview Parking ltd.) have refused to send a close-up photograph of the signs used in 2016 and I believe no 'reasonable adjustments' of time are in place for your disabled visitors. They have also ignored my request for information regarding their grace period at the time.

Simply having parking spaces close to the entrance of one of the shops is not reasonable adjustment enough to accommodate someone with a disability. As the parking area has 8 shops (B&M, Outfit, Matalan, H & M, Hobbycraft, Poundland, Card Factory, Starbucks) 2.5 hours is not long enough for the disabled customer to access the shops. Due to the occupant’s disability frequent rest breaks are needed and walking to each shop takes more time. Two of the shops have lifts specifically for disabled customers but these are at the back of the shops and these particular lifts take a lot of time to operate, therefore more time is needed to use them. Having a disability which prevents a person from being able to move around at the same speed as able-bodied people and with no provision given to extend the parking period means that, you are not making reasonable adjustments and thereby putting disabled customers at a disadvantage. The position now is that I have appealed in good faith but Highview Parking ltd. (now Nexus DPO Ranger) have pursued this charge in contempt of the Equality Act, it seems. This is despite having knowledge of the occupant’s disability. This treatment is illegal and constitutes indirect disability discrimination as explained in the EHRC Code of Practice already adduced above. The company have a statutory duty in the Code, to avoid 'indirect discrimination' by applying a blanket term or policy (such as a time limit with no flexibility for disabled people). If the person or organisation doesn’t cooperate with their duty to make reasonable adjustments, the Equality Act says it’s unlawful discrimination. You can ask the person or organisation to make the necessary changes. If they refuse, a discrimination claim under the Equality Act can be made.

The BPA Code of Practice for which Highview Parking (now Nexus DPO Ranger) was a member, makes an explicit statement about Blue Badges:

16.5) If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices. (Version 1 – October 2012).

Coupon-mad

DCBLegal?  It isn't!  

The template says it's NOT the solicitor.

Hatebeingdone

Coupon-mad said:

DCBLegal?  It isn't!  

The template says it's NOT the solicitor.

Sorry I am not sure what you mean.

Hatebeingdone

Do I address everything Highview parking now Nexus DPO Ranger?

KeithP

Hatebeingdone said:

Coupon-mad said:

DCBLegal?  It isn't!  

The template says it's NOT the solicitor.

Sorry I am not sure what you mean.

The Claimant's name is spelt out in the box headed Claimant on your Claim Form.

Hatebeingdone

Coupon-mad said:

DCBLegal?  It isn't!  

The template says it's NOT the solicitor.

I've just looked back and see that I need to put Highview Parking. Sorry!Coupon-mad said:

DCBLegal?  It isn't!  

The template says it's NOT the solicitor.

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

HIGHVIEW PARKING LTD

(Claimant) 

- and -  

XXXXXXX

 (Defendant)

_________________

DEFENCE

 

1. 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 gave rise to a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue or to form contracts in their own name at the location.

The facts as known to the Defendant:

2.  The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant Highview Parking Limited (Now Nexus DPO Ranger) for a total amount of £287.34 (inclusive of £35 Court Fee & £50 Legal representative's costs). The Defendant has come to understand that this relates to a PCN that was issued against the Defendant’s vehicle XXXXXX, almost 6 years ago on xx/xx/201X at XXXXXXXX, XXXX. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The defendant denies ever driving the car in the area stated in the PCN. The car insurance was in the defendant’s spouses name with the defendant as a named driver. The defendant is not able to identify who was driving the car on an unremarkable day nearly six years ago because other family members had use of the car.

3. The Defendant believes that as the Notice to Keeper is not POFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper because the Notice Keeper does not warn the keeper that, if after a period of 28 days, Highview Parking Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. Highview Parking Ltd. (now Nexus DPO Ranger)(or their legal team, DCB Legal limited) need to pursue the driver for the charge, not the registered keeper.

Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, the Claimant has included a clear falsehood in their POC which was signed under a statement of truth by the Claimant's legal representative.

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)

4. An occupant of the car holds a Blue Disabled Badge and the car would have been parked in a disabled bay. This car park is open to the public and therefore the landowner, managing agent, on-site outlets and the private parking company are all 'service-providers' who have a legal duty to adhere to the 'Equality Act Code of Practice on Services, Public Functions and Associations' which became law on 6th April 2011.

In this case the service providers did not make reasonable adjustments for disabled customers and are in breach of the Equality Act 2010. The situation is that I was sent a PCN for allegedly 'overstaying' an arbitrary time limit imposed as a fixed amount of time for parking. The occupants of the car had no idea there was an arbitrary time limit due to the very small notices which were not near the disabled parking bays at the time and were high up on posts. It was reasonable to assume that displaying a Blue Disabled Badge would allow three hours parking. Nexus DPO Ranger (previously Highview Parking ltd.) have refused to send a close-up photograph of the signs used in 2016 and I believe no 'reasonable adjustments' of time are in place for your disabled visitors. They have also ignored my request for information regarding their grace period at the time.

Simply having parking spaces close to the entrance of one of the shops is not reasonable adjustment enough to accommodate someone with a disability. As the parking area has 8 shops (B&M, Outfit, Matalan, H & M, Hobbycraft, Poundland, Card Factory, Starbucks) 2.5 hours is not long enough for the disabled customer to access the shops. Due to the occupant’s disability frequent rest breaks are needed and walking to each shop takes more time. Two of the shops have lifts specifically for disabled customers but these are at the back of the shops and these particular lifts take a lot of time to operate, therefore more time is needed to use them. Having a disability which prevents a person from being able to move around at the same speed as able-bodied people and with no provision given to extend the parking period means that, you are not making reasonable adjustments and thereby putting disabled customers at a disadvantage. The position now is that I have appealed in good faith but Highview Parking ltd. (now Nexus DPO Ranger) have pursued this charge in contempt of the Equality Act, it seems. This is despite having knowledge of the occupant’s disability. This treatment is illegal and constitutes indirect disability discrimination as explained in the EHRC Code of Practice already adduced above. The company have a statutory duty in the Code, to avoid 'indirect discrimination' by applying a blanket term or policy (such as a time limit with no flexibility for disabled people). If the person or organisation doesn’t cooperate with their duty to make reasonable adjustments, the Equality Act says it’s unlawful discrimination. You can ask the person or organisation to make the necessary changes. If they refuse, a discrimination claim under the Equality Act can be made.

The BPA Code of Practice for which Highview Parking (now Nexus DPO Ranger) was a member, makes an explicit statement about Blue Badges:

16.5) If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices. (Version 1 – October 2012).

Coupon-mad

You've deleted the template point #2 which you should keep in and edit to say you admit to being the registered keeper but deny being the driver (ONLY IF THAT IS TRUE).

And you can't say these two things (below) because they conflict:

The defendant is not able to identify who was driving the car on an unremarkable day nearly six years ago because other family members had use of the car.

An occupant of the car holds a Blue Disabled Badge and the car would have been parked in a disabled bay. 

So you do know something about the event.  You can't lie that you don't.  If you know the driver (your wife?  You?) would have been displaying a blue badge, then you do know who was driving - but as a matter of law, you don't have to name them to a private parking firm.