Court Defence details. Is this not to long ?

1505grandad

Am I correct that the pcn previously posted is not PoFA compliant because - at least - the incident date was 25.9.2021 and issue date 26.10.2021 and an anpr capture?

Coupon-mad

1505grandad said:

Am I correct that the pcn previously posted is not PoFA compliant because - at least - the incident date was 25.9.2021 and issue date 26.10.2021 and an anpr capture?

Yes...no keeper liability.

In which case the OP could choose to defend as keeper, copying and adapting a Highview defence.  Simple! 

Chriswhgv

After a hard fight, collecting my scraps together. Proud of my scraps, I come back here and read that....

1505grandad - Am I correct that the pcn previously posted is not PoFA compliant because - at least - the incident date was 25.9.2021 and issue date 26.10.2021 and an anpr capture?

Coupon-mad - Yes...no keeper liability.
In which case the OP could choose to defend as keeper, copying and adapting a Highview defence.  Simple! 

And.... Again. Thank You. But what that mean?  

Chriswhgv

Para 3.

The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that “permit holders only” and referencing signs which can only be read by entering the car park, giving no definition of the term ‘permit holder', nor indicating where permits can be obtained.

The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and are in such positions that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. Furthermore, signs as you enter the access road claim you require pay and display, which is misleading.

The alleged breach, according to Civil Enforcement Ltd, is in contravention of terms and conditions. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Other signs in this car park are sporadically placed, out of the line of sight for a driver and not clearly visible, especially in the evening when it's dark with no sufficient lighting. It is therefore possible to park and not be able to see any clear signage which complies with BPA requirements. Given this lack of clarity, no contract can be construed from the Claimant's signage, under the "contra proferentem" principle. Civil Enforcement Ltd are required to show evidence to the contrary.

The Claimant has also not allowed for a grace period. The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

Chriswhgv

Who is yasmin mia ? 

Fruitcake

Chriswhgv said:

After a hard fight, collecting my scraps together. Proud of my scraps, I come back here and read that....

1505grandad - Am I correct that the pcn previously posted is not PoFA compliant because - at least - the incident date was 25.9.2021 and issue date 26.10.2021 and an anpr capture?

Coupon-mad - Yes...no keeper liability.
In which case the OP could choose to defend as keeper, copying and adapting a Highview defence.  Simple! 

And.... Again. Thank You. But what that mean?  

It means that the vehicle keeper cannot be held liable for the charge, only the driver. If the claimant doesn't know who was driving than they cannot (should not) claim against the keeper.
Once a court claim has started then this only helps if the keeper was not the driver. 

If the keeper was not the driver then this needs to be included as a defence point because the NTK arrived too late for the keeper to be held liable in accordance with the strict requirements of the PoFA 2012.

Fruitcake

Chriswhgv said:

Who is yasmin mia ? 

She is a paralegal who works for the claimant's solicitor. She is a frequent flyer on this forum.

Coupon-mad

Chriswhgv said:

Para 3.

The Particulars of Claim state that the Defendant was the registered keeper and/or the driver of the vehicle. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

Due to the sparseness of the particulars, it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that “permit holders only” and referencing signs which can only be read by entering the car park, giving no definition of the term ‘permit holder', nor indicating where permits can be obtained.

The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and are in such positions that anyone attempting to read the tiny font would be unable to do so easily. It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract. Furthermore, signs as you enter the access road claim you require pay and display, which is misleading.

The alleged breach, according to Civil Enforcement Ltd, is in contravention of terms and conditions. The signs in this car park are not at all prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. Other signs in this car park are sporadically placed, out of the line of sight for a driver and not clearly visible, especially in the evening when it's dark with no sufficient lighting. It is therefore possible to park and not be able to see any clear signage which complies with BPA requirements. Given this lack of clarity, no contract can be construed from the Claimant's signage, under the "contra proferentem" principle. Civil Enforcement Ltd are required to show evidence to the contrary.

The Claimant has also not allowed for a grace period. The BPA’s Code of Practice states (13) that there are two grace periods: one at the end and a separate 'observation period' at the start. For the avoidance of doubt this is NOT a single period with a ceiling of just ten minutes, and the authority for this view is in this BPA article by Kelvin Reynolds, BPA Director of Corporate Affairs where he states on behalf of the BPA that there is a difference between 'grace' periods and 'observation' periods in parking and that good practice allows for this:

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

BPA (18.5) states ''if a driver is parking with your permission they must have the chance to read the terms and conditions before they enter into the contract with you''.

In summary, it is the Defendant's position that the claim discloses no cause of action, is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own initiative, using its case management powers pursuant to CPR 3.4.

The above comes from quite an old one.

It also will not read very well at all if you try to slot all of the above into the Template Defence that already says all of the above!  It's just repetition.

Copy a defence from one of the hundreds of Highview claim threads instead, as I advised.

That simply means putting the words Highview claim into the search box and reading a couple where the Defence has pointed out the PCN is non-POFA.  There's your paragraph 3 onwards, already written and repeated right there in loads of threads.

Chriswhgv

DEFENCE

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 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.

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 only insured driver of the vehicle and not the only person who had access to the vehicle in question and is unable to recall who was or was not driving on an unremarkable day.

3. The Defendant was issued with a Claim Form by xxx Legal acting on behalf of the Claimant Cxxt Limited for a Total amount of £xxx.xx (inclusive of £35 Court Fee & £50 Legal representative's costs). Through research the Defendant has come to understand that this relates to a PCN that was issued against the Defendant’s vehicle ******* year ago on 25 September 2021 at Car Park At O*** in London.

4.  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.

5. Following on from [4] & [5], where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in 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'.  This can never be the case with a Highview Parking Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  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 £xxx.xx. Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

6. 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)

7. The facts in this defence come from the Defendant's own knowledge and honest belief.  To pre-empt the usual template responses from this serial litigator: the court process is outside of the Defendant's life experience and....

Thank You

Chriswhgv

Coupon-mad said:

 There's your paragraph 3 onwards, already written and repeated right there in loads of threads.

Hi. What is standard font and size in claims? thank you