Landowner timeframe to cancel PCN

Coupon-mad

It was easy as it was based on one I'd written before, off-forum (probably after sucking lemons, yes!).

carb_1

HI All,

After a bit of back on forth with DCB legal, I now have received my Claim form....

The issue date is the 28th October and I have filled my acknowledgement.

I have drafted the defence below and would welcome any input before I submit.

A couple of points on the NTK, it was dated 35 days after the PCN and the NTK only states the time it occurred, no duration, am I correct on points 8 & 9?

Thanks.

Defence

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the vehicle, registration XXXXX, which on the material date the Defendant was the registered keeper, was on [DATE] parked in a marked bay allocated to the Company [NAME]

3. The Defendant is an employee of [NAME], the Leaseholders for [ADDRESS], who grant the Defendant permission to use their allocated parking bays.

4. The Defendant avers that as an employee of the Leaseholder there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bays, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given.

5. The presence of the Claimant on the land was by appointment of the Landowner, to prevent parking by uninvited persons for the benefit of leaseholders and their employees. In recognition of this and the Defendants entitlement to park, the Landowner has instructed that the Claimant withdraw the charge against the Defendant but has been denied this privilege by the Claimant. A copy of an email from the Landowner confirming this will be provided to the court.

6. The Defendant avers that the operator’s signs cannot:

6.1 Override the existing rights enjoyed by the Leaseholder and their employees and

6.2 That parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

7. Accordingly, it is denied that:

7.1 There was any agreement as between the Defendant or driver of the vehicle and the Claimant

7.2 There was any obligation (at all) to display a permit; and 

7.3 The Claimant has suffered loss or damage or that there is a lawful basis to pursue a claim for loss.

8. In the Particulars of Claim 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. A compliant Notice to Keeper was not properly served in strict accordance with Paragraph 9, sub-paragraphs 4 and 5 of the PoFA, which states that Notice to Keeper must be sent within 14 days beginning with the day after alleged parking event ended to keep Defendant liable for the charges as the keeper of vehicle.

8.1 PATAS and 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).

9. The Notice To Keeper does not specify the period of parking, as required by the Protection of Freedoms Act 2012, Schedule 4, Section 8 (2)(a)&(b) and therefore cannot hold the keeper liable.

10. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

STATEMENT OF TRUTH

I confirm that the contents of this Defence are true

KeithP

carb_1 said:

I now have received my Claim form....

The issue date is the 28th October and I have filled my acknowledgement.

For the moment I'll assume you filed an Acknowledgment of Service sometime after 1st November. Please confirm. Anything else may affect your Defence filing deadline by a few days.

With a Claim Issue Date of 28th October, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 30th November 2022 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence and it is good to see you are not leaving 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'.


That Defence you have shown us appears to be a bit old. A real giveaway is the several years out of date Statement of Truth. Perhaps you should rethink that based on my earlier words.

Coupon-mad

Yep, start again as that is not based on the template defence and even uses a years-old statement of truth.

The POFA points are irrelevant because you are admitting to driving.  POFA deadlines are not relevant to a case were the PPC pursues the driver. 

carb_1

Right, think I got myself confused with my first attempt by basing it on the residential defence and piecing together similar older defences from the forum.... anyway I've added my specifics to para 2 & 3 and the rest will be as the template, any advice welcome. Thanks.

For confirmation Acknowledgment of Service was filled on the 3rd Nov.

The facts as known to the Defendant:

2.    It is admitted that the Defendant was the registered keeper and driver of the vehicle in question.

3.    The Defendant is an employee of [COMPANY] the Leaseholders for [ADDRESS] who grant the Defendant permission to use their allocated parking bays. 

4.    The Defendant avers that as an employee of the Leaseholder there was an absolute entitlement to park deriving from the terms of the lease, which cannot be fettered by any alleged parking terms. The lease terms provide the right to park a vehicle in the relevant allocated bays, without limitation as to type of vehicle, ownership of vehicle, the user of the vehicle or the requirement to display a parking permit. A copy of the lease will be provided to the Court, together with witness evidence that prior permission to park had been given. 

5.    The presence of the Claimant on the land was by appointment of the Landowner, to prevent parking by uninvited persons for the benefit of leaseholders and their employees. In recognition of this and the Defendants entitlement to park, the Landowner has instructed that the Claimant withdraw the charge against the Defendant but has been denied this privilege by the Claimant. A copy of an email from the Landowner confirming this will be provided to the court.

Coupon-mad

I would add this:

Drawing on the findings of the Supreme Court in ParkingEye v Beavis, a parking charge of this high amount would be an unrecoverable penalty, because the rationale behind pursuing a known employee to court and refusing an express cancellation instruction from the Claimant's principal (the landholder) unreasonably goes beyond the intentions if the scheme and has no commercial justification nor 'legitimate interest'.


I would also add a point that the signage is very small, faded and unremarkable with minuscule text.  Even if seen, the only readable section suggests that those with authorisation are permitted to park.  

carb_1

Just to add to the success stories, after receiving my court date and then offers to settle. I have had the notice of discontinuation through from DCBL.

Thanks to all for their help.

Umkomaas

carb_1 said:

Just to add to the success stories, after receiving my court date and then offers to settle. I have had the notice of discontinuation through from DCBL.

Thanks to all for their help.

Pretty much follows the standard pattern, well done on seeing this through. Off we go to the DCB Legal discontinuation thread of shame to highlight your case @carb_1. 

Coupon-mad

carb_1 said:

Just to add to the success stories, after receiving my court date and then offers to settle. I have had the notice of discontinuation through from DCBL.

Thanks to all for their help.

Yay! A discontinuance = a win!

ANOTHER ONE BITES THE DUST!

And we sincerely hope that you are au fait with the need to respond to the final Government Public Consultation this Summer?

Anticipated July/August. 

We all need to ram the nail in the coffin of the false £70 'DRA fee' add-on, that actually funds the court claim and toxic CCJ culture, as well as the DRA and roboclaim 'legals' gaslighting of people.

Please come back here when it opens.

If you are not a regular reader, to be alerted you'll need to bookmark the thread by MSE_JC at the top of the forum and enable (on your profile) email alerts for bookmarked threads.

Then join us when the Consultation opens. ...PLEASE!

We need all MSE-reading victims if this horrific harassment and bullying to be heard.

See you back here in August!

patient_dream

carb_1 said:

Just to add to the success stories, after receiving my court date and then offers to settle. I have had the notice of discontinuation through from DCBL.

Thanks to all for their help.

 BRILLIANT .....  and to think that UKPC refused to cancel even when instructed by the landlord, what arrogance.

Now their boss DCBL throws in the towel because it was a crap case from the start

No doubt DCBL rule over UKPC because they know UKPC claims are rubbish