UKPC PCN - Hire vehicle

KeithP

jh47777 said:

Does it work against my favour to make things uncomfortable and hard work? Or, is there any loss in accepting I was the driver at the time? 

On the first page of this thread, back in March, it was suggested that if the parking company did not send copies of the hire documents to the 'day to day keeper', i.e. you, then any driver's liability cannot be transferred to the keeper.
I cannot see that that query was ever answered.

Yes, the 'loss' is throwing away the fact that the parking company has no-one else to chase.

jh47777

KeithP said:

jh47777 said:

Does it work against my favour to make things uncomfortable and hard work? Or, is there any loss in accepting I was the driver at the time? 

On the first page of this thread, back in March, it was suggested that if the parking company did not send copies of the hire documents to the 'day to day keeper', i.e. you, then any driver's liability cannot be transferred to the keeper.
I cannot see that that query was ever answered.

Yes, the 'loss' is throwing away the fact that the parking company has no-one else to chase.

Yes, I did mention that UKPC have never been in correspondence with me directly.

jh47777

Typing up a defence, have adjusted the following thanks to Coupon Mad for guidance on another post:

 

1.  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 in breach of any term.  Further, it is denied that this Claimant (understood to have a bare licence as agents) 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 boilerplate text in the Particulars of Claim ('the POC').

2. It is admitted that the Defendant leased this vehicle via the vehicle rental company Enterprise, and heard nothing about the issue until a month later. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed. It was unclear what the allegation was and no evidence has ever been supplied.

2,1. No compliant Notice to Hirer (which must have included the enclosures prescribed in paragraphs 13 & 14 of Schedule 4 of the Protection of Freedoms Act 2012) was ever served to the Defendant.  Thus it is denied that this Claimant is able to hold the lessee liable, even if there was a breach, which the Defendant neither admits nor denies due to the lack of information and evidence. 

3.  The Particulars of Claim ('POC') appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case is being pursued.  The POC are inadequate, in that they fail to particularise:

(a) the contractual term(s) relied upon; 
(b) the details of any alleged breach of contract;
(c) the time when the alleged conduct occurred
and
(d) how the purported added £170 'damages' arose - a sum which never features on any UK Parking Control sign, so is not based upon contract.  It is loosely described as damages but the woeful POC fail to make any case to support it. -PLEASE ADVISE - CLAIM FORM DOES NOT INDICATE HOW MUCH OF THE TOTAL 170 IS DAMAGES. HENCE I'VE LEFT THE DAMAGES FIGURE AS £170-

3.1.  The claim has been issued via Money Claims Online and, as a result, is subject to a character limit for the Particulars of Claim section of the Claim Form.  The fact that generic wording appears to have been applied has obstructed any semblance of clarity.  The Defendant trusts that the court will agree that a claim pleaded in such generic terms lacks the required details and would have required proper particularisation in a detailed document within 14 days, per 16PD.3.  No such document has been served.

3.2.  The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out boilerplate parking claims.  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators - which includes DCB Legal - should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following authority.

4.  A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and the Practice direction to Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

HERE I INSERT IMAGES OF THE CEL/CHAN TRANSCRIPT

The rest of the defence remains unchanged. Forgive me if I've pasted anything you did not need to read as it remains unchanged, appreciate your advice on amendments.

TIA

KeithP

jh47777 said:

2. It is admitted that the Defendant leased this vehicle via the vehicle rental company Enterprise, and heard nothing about the issue until a month later. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed. It was unclear what the allegation was and no evidence has ever been supplied.

I don't think you have understood POFA correctly.

Having received your details from Enterprise, I think POFA para 14 tells us that UKPC then had 21 days to send a Notice to Hirer to you.
You then had 21 days to respond to that NtH - i.e. to appeal.

Coupon-mad

-PLEASE ADVISE - CLAIM FORM DOES NOT INDICATE HOW MUCH OF THE TOTAL 170 IS DAMAGES. HENCE I'VE LEFT THE DAMAGES FIGURE AS £170-

Good point.  Leave it like that then!

UncleThomasCobley

Get rid of para #4 and instead insert at para #2 the following and then renumber everything sequentially after, making sure you include the bold sub-header:

Preliminary matter: The claim should be struck out

2. The Defendant draws to the attention of the allocating Judge that there is now a persuasive Appeal judgment to support striking out the claim (in these exact circumstances of typically poorly pleaded private parking claims, and the extant PoC seen here are far worse than the one seen on Appeal).  The Defendant believes that dismissing this meritless claim is the correct course, with the Overriding Objective in mind.  Bulk litigators (legal firms) should know better than to make little or no attempt to comply with the Practice Direction.  By continuing to plead cases with generic auto-fill unspecific wording, private parking firms should not be surprised when courts strike out their claims based in the following persuasive authority.

3. A recent persuasive appeal judgment in Civil Enforcement Limited v Chan (Ref. E7GM9W44) would indicate the POC fails to comply with Civil Procedure Rule 16.4 and Practice Direction Part 16. On the 15th August 2023, in the cited case, HHJ Murch held that 'the particulars of the claim as filed and served did not set out the conduct which amounted to the breach in reliance upon which the claimant would be able to bring a claim for breach of contract'. The same is true in this case and in view of the Chan judgment, the Court should strike out the claim, using its powers pursuant to CPR 3.4

[Embed the transcript here]

Try to just use integer numbering for your paras, not the 3.1, 3.2 etc. You want the "preliminary matter" to be dealt with as exactly that... "prior" to everything else.

jh47777

KeithP said:

jh47777 said:

2. It is admitted that the Defendant leased this vehicle via the vehicle rental company Enterprise, and heard nothing about the issue until a month later. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed. It was unclear what the allegation was and no evidence has ever been supplied.

I don't think you have understood POFA correctly.

Having received your details from Enterprise, I think POFA para 14 tells us that UKPC then had 21 days to send a Notice to Hirer to you.
You then had 21 days to respond to that NtH - i.e. to appeal.

How would you suggest I adjust this? And 

thanks UncleThomasCobley. Will amend accordingly.

KeithP

jh47777 said:

KeithP said:

jh47777 said:

2. It is admitted that the Defendant leased this vehicle via the vehicle rental company Enterprise, and heard nothing about the issue until a month later. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed. It was unclear what the allegation was and no evidence has ever been supplied.

I don't think you have understood POFA correctly.

Having received your details from Enterprise, I think POFA para 14 tells us that UKPC then had 21 days to send a Notice to Hirer to you.
You then had 21 days to respond to that NtH - i.e. to appeal.

How would you suggest I adjust this? And 

thanks UncleThomasCobley. Will amend accordingly.

Perhaps simply delete the second sentence of your paragraph 2.
Of course the 'paragraph 2' I am referring to here is the one that was numbered '2' before you carried out UTC's suggestion.  

Coupon-mad

jh47777 said:

KeithP said:

jh47777 said:

2. It is admitted that the Defendant leased this vehicle via the vehicle rental company Enterprise, and heard nothing about the issue until a month later. This delay made it impossible to appeal the charge, as the letter stated that only 28 days are given for appeal, which had already elapsed. It was unclear what the allegation was and no evidence has ever been supplied.

I don't think you have understood POFA correctly.

Having received your details from Enterprise, I think POFA para 14 tells us that UKPC then had 21 days to send a Notice to Hirer to you.
You then had 21 days to respond to that NtH - i.e. to appeal.

How would you suggest I adjust this? And 

thanks UncleThomasCobley. Will amend accordingly.

If you haven't filed the defence yet, you could add these as numbered paragraphs somewhere early on:

- The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the transcripts will be adduced in evidence:

(i). In the case of Excel Parking Services Ltd v Anthony Smith at Manchester Court, on appeal re claim number C0DP9C4E in June 2017, His Honour Judge Smith overturned an error by a District Judge and pointed out that, where the registered keeper was not shown to have been driving (or was not driving) such a Defendant cannot be held liable outwith the POFA.  Nor is there any merit in a twisted interpretation of the law of agency (if that was a remedy then the POFA Schedule 4 legislation would not have been needed at all).  HHJ Smith admonished Excel for attempting to rely on a bare assumption that the Defendant was driving or that the driver was acting 'on behalf of' the keeper, which was without merit. Excel could have used the POFA but did not. Mr Smith's appeal was allowed and Excel's claim was dismissed.

(ii). In April 2023, His Honour Judge Mark Gargan sitting at Teesside Combined Court (on appeal re claim H0KF6C9C) held in Vehicle Control Services Ltd v Ian Edward that a registered keeper cannot be assumed to have been driving. Nor could any adverse inference be drawn if a keeper is unable or unwilling (or indeed too late, post litigation) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan concluded at 35.2 and 35.3. "my decision preserves and respects the important general freedom from being required to give information, absent a legal duty upon you to do so; and it is consistent with the appropriate probability analysis whereby simply because somebody is a registered keeper, it does not mean on the balance of probability they were driving on this occasion..." Mr Edward's appeal succeeded and the Claim was dismissed.

Coupon-mad

Here's VCS v Ian Edward:

https://www.dropbox.com/scl/fi/w0k19zxzlpf9eumu68u7b/VCS-v-EDWARDS-Transcript.pdf?rlkey=5t2gilebrjx7g0d6jmy32lou4&dl=0

And here's Excel v Smith:

https://www.dropbox.com/s/xfx25wgm3nlqkyc/Claim No. C0DP9C4E:M17X062.pdf?dl=0