Help! Gatwick NCP PCN just sent me CC Claim (I think I'm on the right track!)

thewonder

I've removed the wordy opening and focused on the legal points which I have gathered from various threads on MSE and which I feel apply to my particular case. I will of course in the other paragraphs in the template (4-33). 

I would appreciate any guidance to make sure this is a solid defence and happy to review better examples, if they exist!


Here is what I now have for paragraph 2 and 2. Understanding the law and how it applies to my case is definately a work in progress for me:

2.     It is admitted that on the material date the Defendant was the registered keeper and driver of the vehicle in question.

 

3.     The defendant and driver of the vehicle did not see any clear signage around the stopping point. There was no parking meter or payment facility, or anything suggesting payment was required. Therefore, no party in the vehicle was aware there was a charge. Given the road layout, nor would there have been a possibility of turning the vehicle around regardless - in essence it would have been impossible to read any terms and decide against them. This makes it (arguably) the imposition of a contract term unfairly. Furthermore, as a matter of fact and law, the Claimant (as a longstanding BPA Parking operator) will understand they cannot use the POFA provisions because this is not 'relevant land'.  If the Airport wanted to hold owners or keepers liable under Airport Byelaws, that would be within the landowner's gift and another matter entirely, but not only is that not pleaded, it is also not legally possible because the Claimant is not the Airport owner and their 'parking charge' was not and never attempted to be a penalty.  It was created for their own profit (as opposed to a byelaws penalty that goes to the public purse) and the Claimant has relied on contract law allegations of breach against a driver only. The Defendant was not that driver and cannot be presumed to have been, nor pursued under some twisted interpretation of the law of agency.

 

4.    As a matter of contract law within the private parking regime, there was no parking contract in play; no £100 could possibly have been agreed without being afforded the opportunity to see that onerous clause, and there was also no breach of a 'relevant obligation' (POFA definition) which only applies to 'periods  of parking' (POFA definition again).  Plus this is defined by the Government now, in the new statutory Code of Practice (stalled but soon to be resurrected in July) which says:

"2.19 parked/parking

an instance of a vehicle being caused by the driver to remain stationary other than in the course of driving"

and

"2.24 parking period

the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle)

This is not the period between a vehicle being recorded as entering and departing controlled land."

Umkomaas

Furthermore, as a matter of fact and law, the Claimant (as a longstanding BPA Parking operator) will understand they cannot use the POFA provisions because this is not 'relevant land'. 

The Claimant has no need to invoke PoFA to hold the keeper liable (relevant land or not) as the driver has been identified, so you need to remove any PoFA references from your Defence. 

KeithP

The last sentence of your paragraph 3...

The Defendant was not that driver and cannot be presumed to have been, nor pursued under some twisted interpretation of the law of agency.

...contradicts your paragraph 2 where you state...

...the Defendant was the registered keeper and driver of the vehicle in question.

Or have I misunderstood?
If I have, then perhaps it needs to be clearer anyway... to avoid a court misunderstanding. 

thewonder

Umkomaas said:

Furthermore, as a matter of fact and law, the Claimant (as a longstanding BPA Parking operator) will understand they cannot use the POFA provisions because this is not 'relevant land'. 

The Claimant has no need to invoke PoFA to hold the keeper liable (relevant land or not) as the driver has been identified, so you need to remove any PoFA references from your Defence. 

Thanks @Umkomaas Good to know and I'm learning very fast! I'll remove any PoFA references. 

From what I'd posted, would you consider this a good defence?

thewonder

KeithP said:

The last sentence of your paragraph 3...

The Defendant was not that driver and cannot be presumed to have been, nor pursued under some twisted interpretation of the law of agency.

...contradicts your paragraph 2 where you state...

...the Defendant was the registered keeper and driver of the vehicle in question.

Or have I misunderstood?
If I have, then perhaps it needs to be clearer anyway... to avoid a court misunderstanding. 

Thanks @KeithP Good spot and indeed that is indeed rather conflicting

Would you consider my defence 'strong' in your opinion? Anything else that may help my case?

Coupon-mad

thewonder said:

KeithP said:

The last sentence of your paragraph 3...

The Defendant was not that driver and cannot be presumed to have been, nor pursued under some twisted interpretation of the law of agency.

...contradicts your paragraph 2 where you state...

...the Defendant was the registered keeper and driver of the vehicle in question.

Or have I misunderstood? 
If I have, then perhaps it needs to be clearer anyway... to avoid a court misunderstanding. 

Thanks @KeithP Good spot and indeed that is indeed rather conflicting

That's the same issue I pointed out already...!

And surely in para 2 you need to deny there was a period of parking that could give rise to a 'parking charge' and deny gaining any amenity from the 'drop off' facility because the Defendant merely drove through after taking a wrong lane due to inadequate signage (in the dark?).

Show us your new draft as the above is confusing.
 

thewonder

Thanks @Coupon-mad This is very helpful and makes sense (seems obvious now?!). I'll post my new draft and I sincerely appreciate feedback from all sources and legal viewpoints. 

thewonder

Here is the new draft. Again, I sincerely appreciate all comments and feedback

The facts as known to the Defendant:

2.     It is admitted that on the material date the Defendant was the registered keeper and driver of the vehicle in question.

3.     The Defendant and driver of the vehicle did not see any clear signage around the stopping point. There was no parking meter or payment facility, or anything suggesting payment was required. Therefore, no party in the vehicle was aware there was a charge. Given the road layout, nor would there have been a possibility of turning the vehicle around regardless - in essence it would have been impossible to read any terms and decide against them. This makes it (arguably) the imposition of a contract term unfairly. The Defendant simply drove through after taking the wrong lane due to inadequate signage. This signage was not clearly displayed and was unreadable due to insufficient lighting. The Defendant denies any period of parking which could give rise to a ‘parking charge’.

4.    As a matter of contract law within the private parking regime, there was no parking contract in play; no £100 could possibly have been agreed without being afforded the opportunity to see that onerous clause. Plus this is defined by the Government now, in the new statutory Code of Practice (stalled but soon to be resurrected in July) which says:

"2.19 parked/parking

an instance of a vehicle being caused by the driver to remain stationary other than in the course of driving"

and

"2.24 parking period

the length of time that a vehicle has been parked, i.e. left stationary otherwise than in the course of driving, after any relevant consideration period has expired (excluding instances where the driver has stopped to enable passengers to leave or enter the vehicle)

This is not the period between a vehicle being recorded as entering and departing controlled land."

Coupon-mad

You haven't added what I suggested to para 2.

thewonder

Coupon-mad said:

You haven't added what I suggested to para 2.

Sorry, please correct me if I'm wrong but I added comments to the end of point 2 ( the last few senstences starting "The Defendant simply..."). But would it fit better in section 3?