Draft Defence against Highview Parking Ltd

lukeario95

Can someone please briefly have a look at my defence? I will only attach the part that is bespoke to me from the template:

IN THE COUNTY COURT

Claim No.:  XXXXXXX

Between

Highview Parking Limited

(Claimant) 

- and -  

XXXXXXXX

(Defendant)

_________________

DEFENCE

 

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').

 

The facts known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle. However, the Defendant does not know who was driving on an unremarkable day 6 years ago due to other people being insured to (and regularly using) the vehicle.

3. The defendant is unsure if the ticket was allegedly issued on windscreen or if the alleged offence was captured via ANPR, as no NTK was ever received. The description of the address on Court Form is confusing, as it gives an address which, on Google maps and street view is quite a large area incorporating several other businesses. Since the alleged charge was from 6 years ago, many of said businesses in the area have changed.

The Defendant assumes it must be a retail carpark which has adjoining accommodation with other retail stores which is on the street listed, but this is only an assumption due to not receiving a PCN or NTK.

The Defendant has visited this area before, but it was years before and the Defendant cannot remember if parking restrictions were in place. As the Defendant does not have an original PCN or NTK, the Defendant does not know how to answer the claim of the breach.

Coupon-mad

That's fine but all paragraphs need a number.

And because Highview didn't use the POFA, they can't hold registered keepers liable so add this and obviously re-number the template:

6. It is neither admitted nor denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.
6.1. The Claimant has provided no evidence that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
6.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
6.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
6.2.2. there was 'adequate notice' of the parking charge and clear, prominent terms; and
6.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
It is denied that the Claimant has complied with the relevant statutory requirements.  The Defendant avers that this parking firm did not use the 9(2)f 'POFA' keeper lability wording until 2023.

6.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver.  Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm.  Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and if it had ever been as simple as the legally unsafe position of parking operators being able to 'assume that a registered keeper was driving' there would have been no need for POFA Schedule 4 in the first place.

KeithP

Hello @lukeario95, welcome.

Do you have a County Court Claim Form?

If so, what is the Issue Date on it?

If you have filed an Acknowledgment of Service, upon what date did you do that?
Your MCOL Claim History will have the definitive answer to that question.

lukeario95

KeithP said:

Hello @lukeario95, welcome.

Do you have a County Court Claim Form?

If so, what is the Issue Date on it?

If you have filed an Acknowledgment of Service, upon what date did you do that?
Your MCOL Claim History will have the definitive answer to that question.

I do, it was issued on 4/8/23, but I only received it a week later.

I have filed an AOS on the day I received the form, on 11/8/23

KeithP

lukeario95 said:

KeithP said:

Hello @lukeario95, welcome.

Do you have a County Court Claim Form?

If so, what is the Issue Date on it?

If you have filed an Acknowledgment of Service, upon what date did you do that?
Your MCOL Claim History will have the definitive answer to that question.

I do, it was issued on 4/8/23, but I only received it a week later.

I have filed an AOS on the day I received the form, on 11/8/23

With a Claim Issue Date of 4th August, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Wednesday 6th September 2023 to file your Defence.

That's three weeks away. Plenty of time to produce a Defence and it is good to see that you are not leaving it to the last minute.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

Coupon-mad

The bit about the POFA that I wrote for you is in the wrong place now, as you didn't use standard numbers.  It was meant to follow your bit.

Instead you've got the POFA stuff in the middle of the template paras about inflated claim.

For some reason you've also dropped the sub-heading about inflated claim / market failure!

Use normal sequential paragraph numbers and obviously re-number the full template defence after that. And reinstate the sub-heading.

KeithP

lukeario95 said:

Coupon-mad said:

Yes except you've still missed the sub-heading.

What sub-heading are you referring to?

Could it be the one mentioned in CM's earlier post?...

Coupon-mad said:

For some reason you've also dropped the sub-heading about inflated claim / market failure!

The heading you are missing is shown in bold between paras 4 and 5 of the template Defence.

CM also wrote...

Coupon-mad said:

Use normal sequential paragraph numbers and obviously re-number the full template defence after that.

lukeario95

KeithP said:

lukeario95 said:

Coupon-mad said:

Yes except you've still missed the sub-heading.

What sub-heading are you referring to?

Could it be the one mentioned in CM's earlier post?...

Coupon-mad said:

For some reason you've also dropped the sub-heading about inflated claim / market failure!

The heading you are missing is shown in bold between paras 4 and 5 of the template Defence.

CM also wrote...

Coupon-mad said:

Use normal sequential paragraph numbers and obviously re-number the full template defence after that.

I am still extremely confused and do not know which subheading either of you two are referring to. I have added the other heading back paras 4 and 5 of the original template. Please tell me which subheading I am missing and where to put it in my defence. Thanks

DEFENCE

 

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').

 

The facts known to the Defendant:

2. It is admitted that the Defendant was the registered keeper of the vehicle. However, the Defendant does not know who was driving on an unremarkable day 6 years ago due to other people being insured to (and regularly using) the vehicle.

3. The defendant is unsure if the ticket was allegedly issued on windscreen or if the alleged offence was captured via ANPR, as no NTK was ever received.

3.1. The description of the address on Court Form is confusing, as it gives an address which, on Google maps and street view is quite a large area incorporating several other businesses. Since the alleged charge was from 6 years ago, many of said businesses in the area have changed.

3.2. The Defendant assumes it must be a retail carpark which has adjoining accommodation with other retail stores which is on the street listed, but this is only an assumption due to not receiving a PCN or NTK.

3.3. The Defendant has visited this area before, but it was years before and the Defendant cannot remember if parking restrictions were in place. As the Defendant does not have an original PCN or NTK, the Defendant does not know how to answer the claim of the breach.

4. It is neither admitted nor denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

4.1. The Claimant has provided no evidence that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

4.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

4.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and

4.2.2. there was 'adequate notice' of the parking charge and clear, prominent terms; and

4.2.3. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.

4.2.4. It is denied that the Claimant has complied with the relevant statutory requirements.  The Defendant avers that this parking firm did not use the 9(2)f 'POFA' keeper lability wording until 2023.

4.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver.  Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm.  Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter and if it had ever been as simple as the legally unsafe position of parking operators being able to 'assume that a registered keeper was driving' there would have been no need for POFA Schedule 4 in the first place.

 

5. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely. the Defendant observes after researching other parking claims with the same POC that this claim sets out a cut-and-paste incoherent statement of case.  The POC is sparse on facts and specific breach allegation, making it very difficult to respond. The Defendant avers that this claim is unfair and inflated and it is denied that any sum is due, whether in debt or damages.

 

Exaggerated Claim and 'market failure' currently being addressed by the Government

6.  The alleged 'core debt' from any parking charge cannot have exceeded £100 (the industry cap).  It is denied that any 'Debt Fees' or damages were actually paid or incurred by this Claimant, who is put to strict proof of:

(i).  the alleged breach, which is not pleaded in the POC and thus requires further and better particulars, and

(ii). a breakdown of how they arrived at the enhanced sum in the POC, including how interest has been calculated, which looks to have been applied improperly on the entire inflated sum, as if that figure was overdue on the day of the alleged parking event.  

KeithP

You have now added the missing sub-heading.
Can you not see the difference between what you posted on Wednesday and what you have just posted?

Just the paragraph numbering to sort out now.

lukeario95

KeithP said:

You have now added the missing sub-heading.

Just the paragraph numbering to sort out now.

what is wrong with the numbering?

B789

lukeario95 said:

KeithP said:

You have now added the missing sub-heading.

Just the paragraph numbering to sort out now.

what is wrong with the numbering?

EVERY paragraph needs a sequential number.