Defence against CE

jgb1983

Hi community! Firstly thanks for all who support this forum, it has been a gold mine of info over the last 2 years and greatly appreciated.

Just completed AOS for a claim from CE, have adapted template defence as follows:

Am I good to go on this or are there any suggestions as to how I should adapt?

Thanks again

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 Defendant was not the driver of the vehicle in question. 

 

3. The vehicle in question entered the car park for a period of 13 minutes in order to change and feed a ten-month old baby. It was the only safe and legal place to pull over given the time of day and location (rush hour, busy town). It should also be noted that the camera(s) used by the claimant to collect evidence were mounted on a pole, in a conservation area without any record of planning permission.

jgb1983

Alleged offence mid-November 2020

Claim form dated 8/4/22

AOS 25/4/22 (Easter in between and forms not received until 22/4/22) 

Coupon-mad

Was the NTK one of their basic non POFA ones on wording?  If the defendant was genuinely not driving and it's a non-POFA notice you need to add the stuff about that, commonly seen in Highview defences (I realise yours is not Highview but the words you need are in other such threads).

KeithP

jgb1983 said:

Alleged offence mid-November 2020

Claim form dated 8/4/22

AOS 25/4/22 (Easter in between and forms not received until 22/4/22) 

With a Claim Issue Date of 8th April, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 11th May 2022 to file your Defence.

That's just over a week 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 at the second post in the NEWBIES thread.

Don't miss the deadline 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'.

jgb1983

Coupon-mad said:

Was the NTK one of their basic non POFA ones on wording?  If the defendant was genuinely not driving and it's a non-POFA notice you need to add the stuff about that, commonly seen in Highview defences (I realise yours is not Highview but the words you need are in other such threads).

Good point, appears to be standard non POFA wording, in fact doesn't even reference NTK.

Defendant was genuinely not driving, so have read several highview defences and amended as follows...

2.  The Defendant was issued with a Claim Form by the Claimant Civil Enforcement Limited for a Total amount of £297.92 (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 XXXXXXX, over 2 years ago on 22/02/2020 at XXXXXXXXXXXX.

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 and is unable to recall who was driving on that unremarkable day over 2 years ago. The Defendant believes that the Notice to Keeper was not compliant with the Protection of Freedoms Act 2012 (‘PoFA’), and therefore incapable of holding the keeper liable with the ‘keeper liability’ requirements set out in the ('PoFA'), Schedule 4.

4.  Where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, 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'. The notice to keeper did not contain the POFA 2012 wording. 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, how does the Claimant arrive at the Amount Claimed for a total of £212.92? The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point.

5.  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).

6. The facts in this defence etc etc...

Coupon-mad

Yes that's better - but by doing that, haven't you lost the original template #2 denying being the driver and denying liability?

And lost any facts you do know about the car park, if you received a PCN and whether you appealed, etc? Give the Judge a flavour of what you do or don't know.

I'd remove all this which is clunky and unnecessary. I've never liked it!

Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a total of £212.92? The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point.

jgb1983

Good point - thanks. Will reinstate #2 denying being driver and liability and will renumber subsequent points.  Also will remove clunky text.

Would you recommend I explain PCN rec'd via post, appeal failed, then failed appeal at POPLA? Didn't add that as was worried it might paint the case in a bad light.

The other point is that by taking the highview defence I've now not made the point about driver pulling into car park for 13 minutes to feed a baby. I realise this doesn't improve the "legal" position but do you think it helps to paint the position of duress (£300 bill for 13 minutes to feed a baby)..?

Coupon-mad

I think it will be fine as it is as long as you restore the template point 2 and deny being the driver in 2.  Make sure your email is sent in working hours and you get an acknowledgement.

This isn't your only submission and you will expend more at WS stage. The next steps are in the Template Defence thread so please refer back to it when you get the tedious standard next letters.  No need to ask us until WS stage.

Le_Kirk

If you genuinely were not the driver (and I assume that to be the case as you say it in your defence), you will be able to truthfully answer "No" when the judge asks you if you were driving.  I think it gets confusing if you mention pulling in to feed a baby unless it is fully explained so best left out.

KeithP

@jgb1983, what happened next?