I Park Services-Overstayed

Coupon-mad

Anchovie said:

I sent the SAR to see if Claimant had a copy of my hire agreement (although it wasn't sent with NTK). 

That was a mistake. You don't want a SAR.

Show us your section you want to add to the template defence (which is due soon).

Anchovie

OK, I've used the template on waybackmachine edited 8 December with these additions:

2. The Defendant was the hirer of the vehicle in question but liability is denied and it is noted that although the Claimant knows the Defendant was named as the Hirer, their particulars have failed to plead 'hirer liability' under the provisions of the Protection of Freedoms Act 2012 (Schedule 4).  No doubt because it is a template robo-claim run by a firm of solicitors with cut and paste particulars about registered keepers and because the Claimant will be well aware that they failed to comply and liability was never properly transferred from the registered keeper hire firm, given this Claimant's omissions and inability to follow the steps in the applicable law. 

3. The Operator(Claimant) failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA') 

4. In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator(Claimant) must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer did not comply. 

4.1 The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge being set out in Paragraph 14. 

4.1.1 Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor(Claimant) must also provide the Hirer with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper. The Operator(Claimant) did not provide the defendant with copies of any of these documents, (a), (b) or (c).

4.1.2 As this operator(Claimant) has evidently failed to serve a NTH, not only have they chosen to flout the strict requirements set out in POFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly the defendant cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.

 With further paragraphs renumbered. 

Coupon-mad

That will be OK...unless you were the driver because you haven't responded to that allegation.

Not responding to an allegation means it is admitted.  You must respond to the pleading that they are holding you liable as driver.

The whole of their paragraph 3 is currently admitted by you because you haven't answered that allegation.

Anchovie

I added this to end of Para 2 of the template: 

However, the vehicle is recognised and it is admitted that the Defendant was the registered hirer but not the driver and liability is denied.

Coupon-mad

Great. As you were not driving, it works!

Anchovie

Spoke to my finance company today, who confirmed that they sent a copy of my finance agreement to the claimant.  I am the Legal Owner with the finance company being the registered keeper and the finance agreement is covered by Consumer Credit Act. POFA 13 (6) (ii) reckons this isn't a 'hire agreement' so should I change defence ? 

Gr1pr

I cannot see how you can be an owner until the finance was paid off in full, after which you are probably the legal owner and become the registered keeper at that point . Ownership is irrelevant anyway 

You are the hirer, the day to day keeper 

The defence is unchanged as far as your post is concerned 

The law states that the agreement should accompany the NTH charge, so the fact that it was provided to the parking company is irrelevant unless a copy of it accompanied the NtH sent by the parking company 

Anchovie

Gr1pr said:

I cannot see how you can be an owner until the finance was paid off in full, after which you are probably the legal owner and become the registered keeper at that point . Ownership is irrelevant anyway 

You are the hirer, the day to day keeper 

The defence is unchanged as far as your post is concerned 

The law states that the agreement should accompany the NTH charge, so the fact that it was provided to the parking company is irrelevant unless a copy of it accompanied the NtH sent by the parking company 

I agree with your comments in the real world but the finance agreement specifically states 'regulated by Consumer Credit Act' and POFA states '(ii)is not a hire-purchase agreement within the meaning of the Consumer Credit Act 1974;' 

Gr1pr

The judge decides the case based on is the correct defendant in court and has the claimant proved their case, if yes they determine how much is owed , especially if the judge determines that the defendant was driving 

They certainly wont be interested in ownership , plus parking companies rarely if ever comply with POFA where hire or lease agreements are concerned 

If the defendant has not or does not deny being the driver, its accepted in most cases that the defendant was driving 

If the defendant denies being the driver, the judge has to decide if the keeper hirer is liable and by how much , so as parking companies regularly fail this POFA test regarding a hirer or lessee, the defendant tends to win

LDast

Gr1pr said:

If the defendant has not or does not deny being the driver, its accepted in most cases that the defendant was driving 

Errr... a read of the persuasive VCS v Edward case would beg to differ. Mr Edward never denied being the driver. VCS never proved he was, which was the point.