CCJ / I park services / DCBL - Please help with WS / Docs for a set aside.

TonydePony

Coupon-mad said:

There is no summons.

If the Order now says do something, YES you must. So you must do a draft defence immediately and will be emailing the local court everything and marking it URGENT and with the claim number in the subject line, and in the body, refer to the Order by date.

Thankyou very much. Am I correct, that a draft defense can be amended at a later date when such things as SAR requests become available? Thanks again. 

Coupon-mad

Maybe not. Up to the Judge.

LDast

There is no need for any SAR. If further information is required after a claim has been served, whether a defence has been submitted or not, you can request that the claimant provide the required information/evidence under CPR 18.

TonydePony

Thanks - I have requested the evidence from the claimant. 

A few more questions if i may about my Draft Defence. 


Relevant POC wording

3. THE DEFENDANT IS PURSUED AS THE DRIVER OF THE VEHICLE FOR BREACH OF THE TERMS ON THE   SIGNS (THE CONTRACT). REASON:WITHOUT A VALID PAY AND DISPLAY (OR PREPAY ARRANGEMENT)      4. IN THE ALTERNATIVE THE DEFENDANT IS       PURSUED AS THE KEEPER PURSUANT TO POFA 2012, SCHEDULE 4.

Background 

I'm 95% sure that I Park Services are not PoFA 2012 compliant due to this thread (which is the same carpark and correspondence is dated 3 months apart. Although I do not have the initial letters from them. which i should receive soon. However I have two days to submit my defense .

(https://forums.moneysavingexpert.com/discussion/comment/80705233#Comment_80705233)


- 1) For my own understanding why would a company be non PoFA? Is there a certain amount of criteria that must be met? once met, thus allowing to claim damages under the legislation? 




Draft Defence wording that is Different to the template... which will be numbered correctly. 

2. The facts in this defence come from the Defendant’s own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The 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, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper. 

3. What actually happened?

- 2)  I was not driving but my wife was, would it suffice to say that I was not driving and leave it at that? 



5. The Defendant was never served with a Notice to Keeper (NtK) that complied with the Protection of Freedoms Act 2012 (PoFA). The NtK was in fact headed as “Non POFA”. There was no wording as prescribed in Schedule 4. The Claimant cannot simply invoke ‘keeper liability’ at a later stage as can be evidenced by their ‘Reminder’ letter on 12/04/2023. This legal point has already been tested on appeal (twice) in private parking cases and these 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.

6. The Claimant is a member of the Independent Parking Community (IPC) which is a DVLA Accredited Trade Association (ATA). Members of the IPC are required to strictly adhere to the ATAs Approved Operator Scheme (AOS) Code of Practice (CoP). Whilst not regulatory, the CoP does carry weight and is binding on its members. The current IPC CoP, 9th edition, schedule 7, states that at a pay & display (PD) car park, such as at this location, the operator must allow a “minimum consideration period” of 5 minutes before they are allowed to issue a parking charge. As will be evidenced, the car was on the relevant land, according to the Claimants own time-stamped photographs, from 17:20:59 to 17:24:09, a total duration of 3 minutes and 10 seconds. By issuing a Parking Charge Notice (PCN) before the obligatory consideration period has been concluded, the Claimant is clearly in breach of the IPC CoP.

7. It will also be evidenced from the Claimants own and the Defendants subsequent photographs that no contract could have been offered or made that could bind the driver due to the lack of any prominent or obvious signs at the location. No signs with any terms were visible and the location lacked any prominent warning that this was private land when entering, which is another breach of the IPC CoP.

8. The Claimant is put to strict proof that they have a valid agreement flowing from the landowner giving them authority to regulate parking and initiate court proceedings in their own name on the land in question.

18. In addition, pursuant to Schedule 4 paragraph 4(5) of the Protection of Freedoms Act 2012 ('the POFA') the sum claimed exceeds the maximum potentially recoverable from a registered keeper. The Claimant is put to strict proof of POFA compliance if seeking 'keeper liability'. 

3) Is this paragraph necessary? Or is it best to go belt and braces? 

Thanks again!

Coupon-mad

Looks good.

Yes it is OK to state that you were not driving but your wife was (without naming her because - quite rightly - why would you risk them pursuing her).  You should state that you deny liability entirely and the POFA does not place any burden or legal obligation upon a keeper to name the driver; indeed when Schedule 4 went through Parliament in 2011/2012, that idea (on the 'wish-list' of the clampers and the self-serving British Parking Association) was outright rejected by MPs and policymakers.

For my own understanding why would a company be non PoFA?
To avoid the onerous burden of having to process PCNs very very quickly (Schedule 4 requires a NTK to be served by day 14).


Is there a certain amount of criteria that must be met? 

Yes. See Schedule 4. Saves me typing! It is spelt out in plain English. Easy to understand.


once met, thus allowing to claim damages under the legislation? 
The opposite. No extra damages can be added in a POFA case. Schedule 4 states the maximum that can be sought from a keeper is the sum of the PARKING CHARGE on the signs that the driver would have been liable for. Max £100 at the moment.  No extra fake costs can be claimed from a keeper despite what the scammers say. 

LDast

My old friends Debszzzz2 and nopcns handed above linked claim to me a while ago. In that case, the original NtK was definitely not PoFA compliant and even said to in red on the front "Non-POFA". However, Ipark Services, in subsequent reminder correspondence did refer to PoFA, although too late to actually rely on it.

I have seen other NtKs for the same location issued by iPark Services that are mostly PoFA compliant. Without seeing the original, it is difficult to know what if any technical failures there are in the notice.

However, that case has not had any further action for many months since the defence was filed early February, almost 5 months ago. I am about to find out what the status is after the defendant calls the CNBC this week. I am tempted to advise the defendant to apply for an order to have the claim struck-out under CPR 3.4, with costs, as the Claimant has not taken steps to prosecute the claim in a timely manner. 

1505grandad

"6. The Claimant is a member of the Independent Parking Community (IPC) ....."?

TonydePony

Thanks again all.

@Dlast I presume it wasn't PoFA compliant because the NtK took over the 14 days to arrive? I'm hoping it's not cognitive bias, but I'm sure my NtK had the same red "non PoFA" on the header - Is this omission by I Park Services sufficient to state non PoFA compliance? 

Here's my situation, I have until 4pm today to submit my Defence. Without the documents provided by the claimant I cannot say for certain that PoFA apply. Is it best to omit them for now and hope that I get the chance to resubmit when my CPR 18 comes through? 

Will the defence of the car park wasn't sufficiently sign posted and that she was only there for four minutes suffice? In her own words she said she wasn't even aware that it had changed to a pay and display! 

Coupon-mad

You don't have to say for certain.  You can say 'the Defendant recalls that/believes that...'

DEFINITELY DO NOT OMIT STUFF SAYING YOU BELIEVE THE NTK WAS NON-POFA!

You are using the Template Defence so have 30-odd paragraphs, yes? (Don't show us...).

TonydePony

@Coupon-mad

Cheers for that! Yes I'm using the template and the recalls/believes is a fantastic addition!!