UKPC PCN - Hire vehicle

jh47777

KeithP said:

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.  

Does it matter that I sent SAR and this was responded to?

Coupon-mad said:

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

Is this also after including UTC suggestions? I have amended with both your advice and inserted the transcript under. I will be submitting tomorrow hopefully 
Thanks all 

jh47777

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. It was unclear what the allegation was and no evidence has ever been supplied.

3. 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. 

4.  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. 

 

5. The Defendant does not recall being served with a compliant Notice to Keeper for these charges, nor that which complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule 4.  Without 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.

transcripts inserted here, rest of defence is as template
please advise

Coupon-mad

Have you not added the section re CEL v Chan and that transcript?

jh47777

Coupon-mad said:

Have you not added the section re CEL v Chan and that transcript?

Yes included following straight after what I’ve inserted as I was advised to put ^^ in early on

Coupon-mad

The Chan paragraphs & images should be para 2 onwards, with the rest under it.

jh47777

Sent defence off via email, auto acknowledgement email received. Waiting game for DQ now.

Coupon-mad

Very good. Then it's done.

 

Please re-read the first post of the Template Defence which lists the first 12 steps over the first 3 months.  We try to avoid questions about the N180 form but it sounds like you are ready.

jh47777

N180 form was sent, letter back to say it’s being allocated to my home court so now waiting to be in receipt of a date and witness statement directions, will need help on this please as haven’t the foggiest!

Read Bargepole’s 12 step process, can I please be directed towards more info on this part, no idea what a ‘skeleton argument’ is, I’d like to be in the know! Thanks all.

KeithP

jh47777 said:

N180 form was sent, letter back to say it’s being allocated to my home court so now waiting to be in receipt of a date and witness statement directions, will need help on this please as haven’t the foggiest!

Read Bargepole’s 12 step process, can I please be directed towards more info on this part, no idea what a ‘skeleton argument’ is, I’d like to be in the know! Thanks all.

The second post of the NEWBIES thread should be your guide at this point.

Le_Kirk

jh47777 said:

N180 form was sent, letter back to say it’s being allocated to my home court so now waiting to be in receipt of a date and witness statement directions, will need help on this please as haven’t the foggiest!

Read Bargepole’s 12 step process, can I please be directed towards more info on this part, no idea what a ‘skeleton argument’ is, I’d like to be in the know! Thanks all.

As @KeithP writes, all will be revealed in the NEWBIE sticky second post where you will find exemplar witness statements such as those by @_blueberry_ and @vincentvega27
Skeleton arguments only really required where you have a complicated defence and WS