CCBC - UKPC/DCB Legal - Defence help

Coupon-mad

You can show us photos. 

wolfneo

Hi @Coupon-mad

this may read poorly so i will tidy up but please let me know if you feel anything should be removed or added in my arguement - the rest of the WS is pretty much identical to Blueberrys and the other user you referred me to.

No Keeper Liability

1.     The Notice to Keeper is dated Tuesday 20th March 2018 and subsequently, the Transfer of Liability was sent to me on Wednesday,18th April 2018. According to the Protection of Freedoms Act 2012, Schedule 4, Paragraph 9(6), it explicitly states that if the Notice to Keeper is given by post, it is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted. In this case, the Notice to Keeper was posted on 20th March, and considering the presumption outlined in Paragraph 9(6), it should be deemed to have been delivered by 22nd March. However, the Transfer of Liability, which occurred on 18th April, falls outside this statutory timeframe. The breach of the prescribed timeline, as detailed in Paragraph 9(6), raises questions about the procedural validity of the entire liability transfer process in this case. I respectfully submit that the delay between the subsequent Transfer of Liability is a clear deviation from the statutory requirements laid out in the Protection of Freedoms Act 2012. (Exhibit xx-05 and xx-06 - redacted for the forum)

Location

2.     In preparation for this witness statement, I viewed the site on Google Street View and observed a lack of proper signage upon entering the carpark. (Exhibit X)

3.     There is a lack of contractual signage. Consequently, the driver did not enter into any contract and was not bound by any contractual terms. The absence of obvious visible signage is a violation of the British Parking Association (BPA) Approved Operator Scheme (AOS). (Exhibit xx-10)

4.     According to the British Parking Association (BPA) Code of Practice (CoP), version 7, 2018, 18.2, there should be a standard form of entrance sign at the parking area entrance. This sign must inform drivers about the management of the car park and the associated terms and conditions (Exhibit xx-08 - this is a copy of 18.2 so haven't attached a photo here). The BPA CoP, as referenced, emphasises the necessity of placing signs with specific parking terms throughout the site. This ensures that drivers have the opportunity to read and understand the terms at the time of parking or leaving the vehicle.

6.     Referring to the leading authority from the Supreme Court, it was emphasized that clear and obvious signs that are 'bound to be seen' are crucial. A copy of such a sign is included for comparison to any alleged Claimant sign (Exhibit xx-15 - this is a copy of parkingeye sign)

7.     Alternatively, if the Claimant asserts the presence of signage, I assert that the signage fails to adhere to the standards outlined by The British Parking Association (BPA). The BPA Code of Practice specifies that signs must be conspicuous, legible, and written in intelligible language to be easily seen, read, and understood.

8.     A violation concerning the grace period is highlighted as per the British Parking Association (BPA) Code of Practice (CoP), Section 13.2 (exhibit xx-09 - this is photos of my vehicle from the SAR which is timestamped, which all photo's were taken in less than 10minutes - not sure if this is valid argument?). The CoP mandates a minimum grace period of 10 minutes, which is not met in this case, constituting a breach of the established rules.

Exhibit X

Exhibit 10

Coupon-mad

The second letter wasn't called a Transfer of Liability.  I got really confused reading that to work out what you meant, but I think you are trying to use this point?

https://www.contestorlegal.co.uk/blog-3/uk-parking-control-limiteds-oversight-in-adhering-to-the-28-day-statutory-period-as-outlined-under-pofa-resulted-in-a-295-costs-for-unreasonable-conduct

You need to call the letters by their names or the valid legal argument is lost in translation.

If you've already admitted to being the driver in your defence, then anything POFA cannot be used as it's irrelevant to a driver.  If you weren't driving, your WS must say as much.

wolfneo

Thanks for the advice.

my deadline is tomorrow so would appreciate any comments on the WS.

WS redacted.docx (dropbox.com)

Thanks in advance!

Coupon-mad

It's this bit we need to help you perfect:

You certainly do not want to be using the words 'appropriately served'!

Adapt this wording instead:

https://forums.moneysavingexpert.com/discussion/comment/80389403/#Comment_80389403

wolfneo

thank you for the advice. 

reading into what you referred to, some of it has gone over my head and I dont think relates to my case so have not referred to it but please correct me if i'm wrong. I also added about backdating interest below but don't quite understand whether it is relevant, even after reading s.69 of county courts act.

Updated section:

I was not the driver during the alleged parking event, and the identity of the driver remains unknown. This is a matter negating any cause of action. The Notice to Keeper was sent dated Tuesday, 20th March 2018, which in accordance with the statutory provisions outlined in the Protection of Freedoms Act 2012, Schedule 4, Paragraph 9(6), establishing a presumption of delivery on the second working day following posting. The Notice to Keeper, posted on 20th March, therefore, should be considered as delivered on 22nd March. The notification letter was issued on Wednesday, 18th April 2018. However, the notification letter to the keeper, occurring on 18th April, falls short of the legislatively defined 28-day timeframe. This has the object or effect of these pleadings attempting to allege keeper liability wrongfully, and/or earlier than the law would allow. The Claimant's POC has unreasonably shortened the statutory 28 day period by several days, which has had the additional unreasonable effect of backdating interest incorrectly. This contravention of the specified period, as mandated by the Protection of Freedoms Act 2012, Section 4, raises significant concerns regarding the procedural regularity of the entire liability transfer process. Thus, premature assignment of liability to the keeper, prior to the completion of the legislatively mandated 28-day period and in the absence of knowledge regarding the driver's identity, represents a material violation of the prescribed requirements outlined in the Protection of Freedoms Act 2012.

Coupon-mad

Make it 2 paragraphs as it's too long:

- I was not the driver during the alleged parking event, and the identity of the driver nearly 6 years ago remains unknown because no-one in the family can recall any such incident nor parking contract/breach.  I deny being the driver and can neither admit nor deny any breach by whoever might have parked there.  The Claimant has not produced any evidence of the driver, so they are reduced to a bare reliance on the keeper liability provisions of the Protection of Freedoms Act 2012, Schedule 4 ('the POFA'). However, the Claimants have not complied and have attempted to claim 'keeper liability' prematurely.

- A non-compliant document purporting to be a Notice to Keeper (NTK) was sent dated Tuesday, 20th March 2018 which, when held to the provisions outlined in the POFA Paragraph 9(6), was presumed to be delivered on the second working day following posting. Even if that NTK was posted on 20th March, the earliest it was deemed delivered was 22nd March. A 'notification' letter - misleading the registered keeper that they had become liable under the POFA - was subsequently dated Wednesday, 18th April 2018.  This is at least one day early and thus falls short of the legislatively defined 28-day POFA timeframe, which begins on the day after the NTK was deemed served.  This has had the improper effect of these pleadings attempting to allege 'keeper liability' wrongfully, and earlier than the strict law would allow. Further, by unreasonably shortening the prescribed 28 day period by at least a day, the Claimant has caused the additional unreasonable effect of backdating interest incorrectly.  This all raises significant concerns regarding the procedural regularity of the entire liability transfer process, which is fundamental in a case where the Defendant was not driving. Thus, premature notification of liability from the driver to the keeper represents a material violation of the prescribed requirements outlined in the POFA and the notices were not properly given.

wolfneo

Thank you so much!!! i really appreciate the help.

i believe i'm ready to submit as is now. any last amendments needed? 

Can i confirm, i can email this to the court (enquiries.peterborough.countycourt@justice.gov.uk) and DCB email which defence went to? 

i will be adding the below costs sheet.

In the County Court at ******
Claim Number: xxxxxxxxx
Hearing Date: xx/xx/xxxx

Defendants SCHEDULE OF COSTS

Ordinary Costs

Loss of earnings through attendance at court hearing: My Day Rate

Further costs for Claimant’s misconduct, pursuant to Civil Procedure Rule44;11

Research, preparation and drafting documents (5 hours at Litigant in Personrate of £19per hour): £95.00

Total Costs Claimed: XX

Coupon-mad

Castle said:

I make it that the "Transfer of liability to Keeper" notification dated 18th April 2018 has been issued two days too soon based on:
1) NTK-issued Tuesday 20th March (so date given 22nd March)
2) 28 days period runs from 23rd March to 19th April
3) Earliest that they can transfer liability is therefore 20th April.

Castle did already explain the dates and made it two days too soon. I said 'at least one day too soon' but it's fine.

Yes you email it to those 2 addresses.

wolfneo

Thanks @Coupon-mad

Witness statement now emailed to DCB Legal and Court.

i will keep you all updated on the progress. Thank you once again!