UKPC unauthorised parking country court claim defence

Coupon-mad

You have Henry Greenslade twice. One point about him is needed only.

The Defendant cannot be held liable for the charges as the keeper of the vehicle. 

Why not? A Judge will likely know (vaguely) that the POFA schedule 4 and right to 'keeper liability' exists and will probably assume UKPC can hold the keeper liable. You haven't said why not.

You need to say why not.

I'd get rid of this:

5.1 The 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'.  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 £229.56. The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point.

kgirl123

thank you Coupon-mad, as i'm not sure on 'why not' re keeper liability i will remove that para

i have removed 5.1 and 5.2 and kept only

5. In the Particulars of Claim ('POC') it is stated that the Defendant is liable as the driver or keeper but the Claimant has failed to provide any evidence that Defendant was also the driver.

Coupon-mad

I wouldn't remove it without checking the NTK against schedule 4 (linked and explained in the first post of the NEWBIES thread).

In 2017 UKPC were hit and miss with whether a NTK complied with schedule 4 or not.

kgirl123

i've had a look at the NTK they sent me in the SAR, and checked it against the schedule 4 link para 8, but i haven't spotted anything other than the fact the NTK states 'after 42 days you as the registered keeper will be liable' and in the reminder letter it changes to 'as 28 days have lapsed you as the registered keeper can be made liable'

not sure if i have missed anything else, have uploaded them both below, your expert opinion would be much appreciated

NTK

https://ibb.co/gZPdNcW

https://ibb.co/tL4n7s0

Reminder

https://ibb.co/hHZRXNV

https://ibb.co/5vpqXtt

Fruitcake

For your para 2, I would say that you are the keeper, the identity of the driver is unknown, but you deny liability.

The 42 days is some strange hybrid deadline UKPC made up. 

The NTK is not PoFA compliant because it doesn't have the correct wording (warning) from the PoFA 2012, Schedule , paragraph 8 (2) (f)

(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i) the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

(ii) the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

I note that it doesn't offer an early payment bribe. That may be a breach of the BPAs CoP in place at the time, although it is of minor import.

kgirl123

I have adjusted para 2

2. It is admitted that the Defendant was the registered keeper of the vehicle in question, but the identity of the driver is unknown, and liability is denied.

But now I'm somewhat confused by how I need to adjust para 5 based on the NTK being non-compliant, as para 5 in my defence didn't originally mention the NTK at all - is it best to adjust para 5 to mention the NTK was non-compliant as it didn't use the correct wording as per schedule 4 PoFA and didn't offer an early bribe (as per below) and remove 5.1 and 5.2?

(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;

5. In the Particulars of Claim ('POC') it is stated that the Defendant is liable as the driver or keeper but the Claimant has failed to provide any evidence that Defendant was also the driver.

5.1 The 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'.  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 £229.56. The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point.

5.2. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) Lead Adjudicator and barrister, Henry 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). 

Coupon-mad

If the NTK followed a windscreen PCN it doesn't have to offer the discount, according to the self serving Codes of Practice.

KeithP

@kgirl123, did you file a Defence?

What happened next?

kgirl123

Sorry I've been meaning to update - defence filed, got a court date set for 27 Jan

I had a phone call from DCB Legal yesterday asking if I would be interested in a settlement and of course said no

Will be starting my witness statement soon as I need to file this 2 weeks prior to the court date

Coupon-mad

Very good! They'll probably discontinue the claim soon!  Tell us when they do.

Use the WS bundle by @aphex007 as your base.