Excel PCN help

Coupon-mad

"Parking lot". Ouch, horrific Americanism!

Car park, please!

All your paragraphs need a number.

As you cannot be sure who was driving, you should add a paragraph pointing out that the Claimant chooses not to use Protection of Freedoms Act ('POFA') 2012 wording so they cannot invoke 'keeper liability'. This has already been tested on appeal, in Excel v Smith, and the transcript for that case will be adduced in evidence.  HHJ Smith overturned an error by a District Judge and pointed out that in a case where the keeper was not shown on the balance of probabilities to have been driving (or was not driving) a Registered Keeper Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 would not have been needed at all) and His Honour Judge Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit.



P.S.  Is the Defendant named on the N1 claim form an individual or a company?

bs1998

Coupon-mad said:

"Parking lot". Ouch, horrific Americanism!

Car park, please!

All your paragraphs need a number.

As you cannot be sure who was driving, you should add a paragraph pointing out that the Claimant chooses not to use Protection of Freedoms Act ('POFA') 2012 wording so they cannot invoke 'keeper liability'. This has already been tested on appeal, in Excel v Smith, and the transcript for that case will be adduced in evidence.  HHJ Smith overturned an error by a District Judge and pointed out that in a case where the keeper was not shown on the balance of probabilities to have been driving (or was not driving) a Registered Keeper Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 would not have been needed at all) and His Honour Judge Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit.



P.S.  Is the Defendant named on the N1 claim form an individual or a company?

Thank you for the critique.

The name on the N1 and the vehicle registration is an individuals name.

bs1998

Hi again, below is the amended appeal for critique, thank you. Also, can you please confirm who I send this appeal to? Thank you again.

 

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.

2.      The defendant needs to point out that the Claimant chooses not to use Protection of Freedoms Act ('POFA') 2012 wording so they cannot invoke 'keeper liability'. This has already been tested on appeal, in Excel v Smith, and the transcript for that case will be adduced in evidence.  HHJ Smith overturned an error by a District Judge and pointed out that in a case where the keeper was not shown on the balance of probabilities to have been driving (or was not driving) a Registered Keeper Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 would not have been needed at all) and His Honour Judge Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit.

3.      The facts as known to the Defendant:

4.      It is admitted that the Defendant was the registered keeper of the vehicle in question.

5.      The vehicle in question is a work vehicle, and more than one person could have been the driver. Due to the amount of time between the date of the photo and the date of notice, and the lack of photo of the driver, it cannot be stated who the driver was.

 

6.      After notice was received, the defendant had difficulty in finding the address, as it is without a number reference, and only a postcode and street on a high street.

 

7.      Upon inspection, the signage would have been difficult for a driver to see as a driver turns off a busy high street, as the signage is on a side wall, and a driver would need to pull across a busy pavement and stop on the pavement and look to the right hand wall to see and read it.

8.      Photos are available to show this.

 

9.      There also would be little indication that it was a car park, as there are no clearly marked parking bays, and no disabled parking bays, and is used by some drivers as a cut through to an adjoining road.

 

10.  The defendant has tried to engage with the claimant on these issues, and due to a lack of engagement by the claimant, has also involved the local MP, XXXXXXX MP, who has also written to the claimant about this case.

Le_Kirk

It's not an appeal it is a defence.  If you are going to say you were not the driver, you should take care to state categorically that the research in paragraphs 6, 7 & 8 was carried out after the PCN was received and not during a parking event.  Photos go with the witness statement (maybe you were aware of this but it pays to be sure)!

Coupon-mad

Looks fine - but if the defendant was not (or thinks it likely they were not) the driver on the material date, they must say so in #4.

Don't leave it unsaid (but don't lie, of course).

bs1998

Le_Kirk said:

It's not an appeal it is a defence.  If you are going to say you were not the driver, you should take care to state categorically that the research in paragraphs 6, 7 & 8 was carried out after the PCN was received and not during a parking event.  Photos go with the witness statement (maybe you were aware of this but it pays to be sure)!

No, I was not aware, but how can there be a witness to it?

Coupon-mad

You are (will be) a witness.

So will the parking firm in their WS. Even if neither of you were there that day (that's not what is meant by witness in a court context).

Sounds like you need to re-read the IMPORTANT: KNOW WHAT HAPPENS WHEN - the red capitals section of the NEWBIES thread, which I won't link. But it fully explains Witness Statement stage.

You need to be ready for every stage. This is just the first stage. Defence is not your only job.

bs1998

Thank you all, edits made, defense submitted to CCBCAQ@Justice.gov.uk, acknowledgement received

bs1998

Hello again, I have received the DQ, gone to the Newbies thread, and at the point D1 it seems that what I have no longer is what is statred on the 'how to answer' for the DQ, as D1 is now Suitability for determination without a hearing, and it then goes to 'E'.

So can anyone point me to the current instructions on filling this out? Thank you

Le_Kirk

https://forums.moneysavingexpert.com/discussion/6364201/new-questions-on-the-n180-form/p1
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