County court claim for a Car Park fine

abigray90

evening guys, would you mind just checking over this for me please?

this is my defence "facts known to the defendant", let me know if theres anything i need to add or change please, thanks in advance for your help.

the defendant was the registered keeper at the time of the Parking charge notice being issued, however on the day in question the registered keeper was not the driver/user of said vehicle and is not obliged to disclose who the driver/user was on said day.

The NCP operated car park at Rayleigh station is located upon land belonging to the railway and therefore the car park is not ‘relevant land’ as defined by paragraph 3 of Schedule 4 of PoFA, being subject instead to Railway Byelaws. 

1:  Railway land is not ‘Relevant Land’ for the purposes of the Protection of Freedoms Act 2012 (‘PoFA’) and therefore, there is no keeper liability

2: Contrary to paragraph 21.5a of the BPA CoP.

3: No evidence of landowner authority;

4: Non-compliance with PoFA

5: The ANPR system is neither reliable nor accurate

6: Exemption from PCN on grounds of contravening Railway Bylaw 14

Railway land is not ‘Relevant Land’ for the purposes of the Protection of Freedoms Act 2012 (‘PoFA’) and therefore, there is no keeper liability

On the basis that Byelaws are assumed to cover this station, it follows that PoFA is not applicable to this case and any claim made for parking charges by Claimant against the driver or registered keeper (defendant) is unfounded. The onus is upon the operator, Claiminat, to provide evidence to the contrary. If they disagree with this point, the defendant requires them to produce documentary proof from the landowner that this land is not covered by the said byelaws.

Notwithstanding that the claimaint are not entitled to claim under Railway Byelaws, they have not followed correct procedures even if they were entitled to do so. By claiming the charge is liable to them, the claimaint appear to be attempting to claim this under Railway Byelaws. the defendant rejects this and requires them to state which Byelaw they claim is broken, and in any case, why this would result in an obligation to pay the claimant.

It is also worth noting Freedom of Information Act Request F0013227, whereby the Department for the Secretary of State for Transport has categorically stated that no confirmation or change in laws since the Railways Act 1993 came into force, which empower any person or body other than the courts to impose a penalty for breach of Byelaws 14(1), (2) or (3) made under Section 219 of the Transport Act 2000 (as amended) and made operational on 7 July 2005.

Therefore, any breach of Railway Byelaws is a criminal offence, not a breach of any contract the claimant may say the driver entered in to. If the driver is found to have breached byelaws 14 (1-3), the resulting penalty is paid to the government rather than the claimant or the railway. Further, Byelaw offences are decided by the court, not by the claimant; the parking operator or railway can only allege the breach.

Further, POPLA guidance issued in 2018 with regard to penalty notices issued under Railway Byelaws, states several expectations of a penalty notice that have not been followed in this instance. For example:
• A Penalty Notice (‘PN’) should say it is a penalty notice – in this case, NCP has issued a ‘parking charge notice’.
• A PN should confirm how the byelaws were brought to the motorist’s attention – the PCNtK does not reference byelaws at all.
• A PN should confirm the law under which it has been issued – the PCNtK is silent on this point.
• A PN should not use the words ‘parking charge notice’ – the PCNtK is clearly labelled as a ‘Parking Charge Notice’

Under schedule 4, paragraph 4 of the PoFA 2012, an operator can only establish the right to recover any unpaid parking charges from the registered keeper of a vehicle if certain conditions are met. Specifically, paragraph 6 (1) states:
“6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)
(a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or
(b) has given a notice to keeper in accordance with paragraph 9.

Paragraph 9 is the relevant paragraph here as the PCNtK was not received by the registered keeper.

Paragraph 9 (2f) states that the Notice to Keeper must warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (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;

Without receiving a PCNtK the defendant was given no such warning, nor made aware of any such right to recover charges from the keeper.

In addition, Paragraph 9(4) of PoFA states that the notice must be given by:
a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.

The relevant section here is both a) & b) as the PCNtK was neither received by hand nor post. Paragraph 9(5) states that the relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.

Paragraph 9(5) of PoFA is reinforced by paragraph 21.6 of the BPA Code of Practice. This states that if an operator wants to make use of the keeper liability provisions in Schedule 4 of PoFA, and it has not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, its Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9).

the defendant did not in fact receive a PCNntk. This is a breach of both PoFA and the BPA Code of Practice and means there can be no keeper liability in this case.

No evidence of landowner authority;

As the claimant does not have a proprietary interest in the land, the defendant requires that they produce an un-redacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions, such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, is key evidence to define what the claimant is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement. Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which on the basis of information on Greater Anglia’s own website, would appear to be longer than the bare minimum times set out in the BPA CoP), and basic information such as the land boundary and bays where enforcement applies/does not apply. Witness statements would also fail to provide evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Section 7 of the BPA CoP defines the mandatory requirements on landowner authority. Specifically, Paragraph 7.1 states that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges.”

Further, paragraph 7.2 states that “if the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.”

Paragraph 7.3 goes onto clarify what the written authorisation must set out, namely:
(a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
(b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
(c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
(d) Who has the responsibility for putting up and maintaining signs.
(e) The definition of the services provided by each party to the agreement.

the claimant has no title in this land and therefore have no standing to enforce 'parking charges' or penalties of any description in any court. No evidence has been supplied lawfully showing that the claimant are entitled to pursue these charges in their own right (not that a keeper can be liable anyway on non-relevant land and the claimant cannot enforce byelaws themselves, only the Train Operating Company or site landowners can, by requiring the driver ONLY, to answer to a real fine at a Magistrates Court).

I require the claimant to provide a full un-redacted copy of the contemporaneous, signed and dated contract with the landowner. It will not be sufficient for the claimant merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner, not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. the defendant puts the claimant to strict proof of compliance with all of the above requirements.

The ANPR System is neither reliable nor accurate

the claimant has provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA CoP. Further, paragraph 20.5a of the BPA CoP states that when issuing a parking charge notice the operator “may use photographs as evidence that a vehicle was parked in an unauthorised way… A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered”.

Having not received a PCNtk the defendant has not been provided with any such photographs showing the vehicle on the day in question, this is contrary to paragraph 20.5a of the BPA CoP. Since there is no evidence of actual parking times this would fail the requirements of paragraph 9(2)(a) of PoFA (notwithstanding my earlier point on byelaws) which states: “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.”

Consequently, the defeandant therefore require the claimant to provide photographs and records with the location of any cameras used in this instance, together with dates and times of when the equipment was checked, calibrated, maintained and synchronised to ensure the accuracy of the ANPR images. the defendant also asks them to prove that any times quoted are directly linked to the camera.

It is vital that the claimant must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point. the claimant has not provided any evidence to show that their system is reliable, accurate or maintained.

Exemption from PCN on grounds of contravening Railway Bylaw 14

 

As previously mentioned, the car park is Railway Land is therefore covered under the Railway Act 1993 and the Railway Bylaws and the PN should be issued under Railway Bylaw 14

Which states

no person in charge of any motor vehicle, bicycle or other conveyance shall park it on any part of the railway where charges are made for parking by an operator or an authorised person without paying the appropriate charge at the appropriate time in accordance with instructions given by an operator or an authorised person at that place

KeithP

Have you read any other Defence?

In my opinion everything following your first mention of 'Railway Byelaws' should not be there.

Coupon-mad

You have half a dozen acronyms near the start, none of which have been written in full:

BPA
CoP
PCN
PCNtk (there is no such thing)
ANPR

Also this is far too long for the facts section of a defence. And it reads more like a POPLA appeal with irrelevant and unfounded assertions like "The ANPR System is neither reliable nor accurate".

I am also concerned about the bare and almost antagonistic wording of "...and is not obliged to disclose who the driver/user was on said day."  That will get a Judge's back up!  It is true but it's better worded by quoting from Henry Greenslade in the POPLA Annual Report 2015.

I'd suggest searching the forum for:

'relevant land defence' (NB: you don't need the little extra word 'NOT' in the forum search)

and then try:

Henry Greenslade defence

...and find one already written that deals with the fact the keeper can't be held liable.

abigray90

thank you, iv cut alot out and iv windled it down to this defence:

The facts as known to the Defendant:

2. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all. It is denied that a contract was entered into - by conduct or otherwise - whereby it was ‘agreed’ to pay a ‘parking charge’ and it is denied that this Claimant (understood to have a bare licence as managers) has standing to sue, nor to form contracts in their own name at the location.

The NCP operated car park at Rayleigh station is located upon land belonging to the railway and therefore the car park is not ‘relevant land’ as defined by paragraph 3 of Schedule 4 of PoFA, being subject instead to Railway Byelaws. 

Railway land is not ‘Relevant Land’ for the purposes of the Protection of Freedoms Act 2012 (‘PoFA’) and therefore, there is no keeper liability 

The driver has never been identified by the claimant. The Claimant has no right to assert that the Defendant is liable based on ‘reasonable assumption’. Parking and Traffic Appeals Service and Parking on Private Land Appeals 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 operators should never suggest anything of the sort” (2015).The Defendant cannot be held liable due to the Claimant not complying with the 'keeper liability' requirements set out in the Protection of Freedoms Act 2012, Schedule 4. It is admitted that the Defendant was the registered keeper of the vehicle in question on the date of the alleged parking contravention, however the defendant was not driving said vehicle on the date in question and does not know who was.

is this a better fitting defence? thanks again 

KeithP

I would trim it even further - there is still repetition.
For a start, the whole of your paragraph 2 is already in paragraph 1 of the template.


So your paragraph 2 onwards might look something like...

The facts as known to the Defendant:
2.  It is admitted that the Defendant was the registered keeper of the vehicle in question on the date of the alleged parking contravention, however the defendant was not driving said vehicle on the date in question and does not know who was.

3. The NCP operated car park at Rayleigh Railway Station is located upon land belonging to the railway and therefore the car park is not ‘relevant land’ as defined by paragraph 3 of Schedule 4 of the Protection of Freedoms Act 2012 (‘PoFA’), being subject instead to Railway Byelaws. 

4. As Railway Land is not ‘Relevant Land’ for the purposes of the POFA, it is not possible to use POFA to transfer any driver's liability to the keeper. It therefore follows that there can be no keeper liability 

5. The driver has never been identified by the Claimant. The Claimant has no right to assert that the Defendant is liable based on ‘reasonable assumption’. Parking and Traffic Appeals Service and Parking on Private Land Appeals 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 operators should never suggest anything of the sort” (2015).

Subsequent paragraphs will need renumbering to suit.

abigray90

This read much better than mine, thank you so much. i will be sending it tomorrow during work hours.

thank you all very much for your help again.

abigray90

My defence has been rejected, any advice as to what to do now please? 

Thanks

abigray90

My defence has been rejected, any advice as to what to do now please? 

Thanks

abigray90

I have not received a Directions Questionnaire (form N180) at all, should i have been sent this? 

KeithP

abigray90 said:

My defence has been rejected, any advice as to what to do now please? 

Thanks

What do you mean by "my defence has been rejected"?

Rejected by who?

That BWL letter you have shown us is nothing unusual.

You were surely expecting that letter.
Item 7 on that checklist you were following when you filed your Defence says...

The rest of that checklist is perhaps worth re-reading.