Need advice with a CCJ letter

gdexr

Not_A_Hope said:

A few comments for your consideration.

I refer to my earlier post highlighting that their Particulars of Claim are ambiguous. You should highlight this early in your WS so a judge can consider throwing their Claim out.

Section title should be Mandated Codes of Practice (not Practise). I have no idea what Ruling Act refers to but in this section you do discuss POFA2012.

Para 13 - I do not even have to rely on R (on the …….) Is there some words missing?

 if you are claiming they have not complied with POFA2012 in their original notice to keeper you need to show the judge which elements do not comply. Have you posted a copy of their NTK for comment?

Para 16 - ‘potentially leading to believe’ might be better worded.

My Fixed Witness Costs - if I understand correctly you have paid for a N244 CCJ hearing fee. Although the previous judge gave no order as to costs you can ask for this additional costs to be considered at this hearing. You might also include a paragraph requesting the court consider a costs hearing instead should the claimant chose to discontinue

Thanks for the great comments! - I've now added the highlight on POC ambiguity as my second section. I also applied all suggestions/changes.

Coupon-mad said:

Para 18 doesn't make much sense to me.

Then I stopped reading at para 19 because it is out of date.  No-one uses Crosby any more because a mirror image case was appealed, so that decision was overturned.  Years ago.

The start of your WS (your facts, and use of court cases that show that parking firms can't hold keepers liable outwith the POFA 2012) are good but I don't understand why you haven't used one of the 5 recommended up to date WS examples linked in the NEWBIES thread WS section?

Thanks for reading it! - I haven't used an example WS because they feel so similar to the defence but I'll now use some of it since I'm removing that whole "ABUSE OF PROCESS" section - I just can't argue well about it.

Mikeh2001 said:

Also what are you putting in your defence? Assume you are using the template, it might be helpful to post your additions here (not the whole thing, just paragraph 3).

Yes, I'm using the template, but I've used a few paragraphs here instead of just paragraph 3. Got that idea from an example Defence.

2. It is admitted that on the material dates, the Defendant was the registered keeper of the vehicle XXXXXX. It is unknown who the driver of the vehicle was on the dates of the claimed PCN, given these date back to 2021.

3.The Defendant does not recall receiving any ‘pre-claim’ correspondence from the Claimant.

4. The Defendant highlights that there remains confusion regarding the Particulars of Claim. While it states that the driver, whoever they may be, cannot park for more than two hours, paragraph 9 of the Amended Particulars of Claim contradicts this by indicating that the driver failed to make a payment. This inconsistency contributes to the lack of clarity surrounding the case.

5. Failing to nominate who was driving is not an admission that the keeper was the driver.

6. The Defendant avers that the Claimant failed to serve a Notice to Keeper compliant with the Protection of Freedoms Act (POFA) 2012. Consequently, the claimant cannot transfer liability for this charge to the Defendant as keeper of the vehicle. The Claimant is put to strict proof.
PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability,  “......The person who may be liable for a charge arising out of the presence of a vehicle on private land is the person who last caused the vehicle to be at rest in that position, that is the ‘driver’, [...] there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time” - POPLA Annual Report 2015.

7. Although unable to provide an exact justification, the Defendant suspects that the car could have been there for a car service at Halfords services, a retail establishment situated within the park. Additionally, the Defendant suggests that the vehicle may also have been present for shopping purposes at Lidl, another retail store located within "Parkway Retail Park." While lacking precise confirmation, these potential activities offer reasonable grounds for the vehicle's presence on the specified date.

8. The Defendant points out that, according to online map services such as Google Maps, the parking signs were in a very poor state in May 2021. Their condition makes the Defendant believe that the claimant does not adequately maintain the parking area to ensure visibility of any contractual terms.

gdexr

@Not_A_Hope when you've said "You should highlight this early in your WS so a judge can consider throwing their Claim out." - Does this mean I can add examples of court cases that lack clarity? i.e.

* Wakefield County Court on 8th September 2023, District Judge Robinson
considered mirror image POC in claim K3GF9183 (Parallel Parking v anon) and struck the Claim
out without a hearing.

* Likewise, in January 2023 (also without a hearing) District Judge Sprague, sitting at the
County Court at Luton, struck out a similarly badly-pleaded parking claim with a full explanation
of his reasoning.

Or that doesn't apply to the my case because the POC have been already amended by the Claimant?

Coupon-mad

For inadequate POC, posters can just use the 'judgments' link to all the insufficient POC judgments including Chan but also loads of others. It's linked in the a-f list of recommended exhibits / evidence.

BUT if the POC has been amended you can't use any of that.  Clearly, Chan doesn't apply if you have full POC.

gdexr

Coupon-mad said:

For inadequate POC, posters can just use the 'judgments' link to all the insufficient POC judgments including Chan but also loads of others. It's linked in the a-f list of recommended exhibits / evidence.

BUT if the POC has been amended you can't use any of that.  Clearly, Chan doesn't apply if you have full POC.

Alright, makes sense now. thanks