5 year old "fine"

FlatTyre

Gr1pr said:

Not receiving letters is no defence to the alleged reasons for the incurred alleged unpaid debt

Ok. The Defence template states "If you didn't get any letters or it was years ago & you can't recall if you were driving, say that". The alleged offence was "parking longer than maximum time permitted". How would you suggest I put a defence against since if I can't recall the event? One would only recall such event once they get a letter, right?

I am not arguing here. I am seekign advice.

FlatTyre

How about this?

3. The alleged PCN is presented as having been issued on **/**/2019. Such a date is more than five years younger than the claim date. The defendant is unable to remember who was driving the car that many years ago. Furthermore, the defendant asserts not having received any letter in relation to the issued PCN. The argument of overstaying the parking limit at the premises has not been backed by evidence. Instead, the defendant was stripped of the right to appeal the charge. The first communication received by the defendant is dated **/**/2024 and states “At this point, you are no longer able to appeal the parking charge. Your next opportunity to dispute the charge would be if the matter goes to court”.

Gr1pr

You can see the claim form, we have not seen it at all, yet you are asking us to comment on a response to the POC , we don't even know who the claimant is, all we know is that the PCN was for an alleged overstay by the driver at Waitrose 

Think about it, you are complaining about not seeing paperwork, well same here, ironic isn't it. ?

Post a redacted picture of the POC on the bottom left of the claim form, minus the VRM details by hiding them , Plus name the claimant too

If the POC are woeful, consider adapting the alternative defence instead of the standard one 

Evidence comes in several months time, at the WS stage 

FlatTyre

Gr1pr said:

Post a redacted picture of the POC on the bottom left of the claim form, minus the VRM details by hiding them , Plus name the claimant too

Claimant
Britannia Parking Group LTD
BH12 1AZ

Address for sending documents and payments:
DCB Legal Ltd
WA7 1UG

POC:

Trainerman

FlatTyre said:

How about this?

3. The alleged PCN is presented as having been issued on **/**/2019. Such a date is more than five years younger than the claim date. The defendant is unable to remember who was driving the car that many years ago. Furthermore, the defendant asserts not having received any letter in relation to the issued PCN. The argument of overstaying the parking limit at the premises has not been backed by evidence. Instead, the defendant was stripped of the right to appeal the charge. The first communication received by the defendant is dated **/**/2024 and states “At this point, you are no longer able to appeal the parking charge. Your next opportunity to dispute the charge would be if the matter goes to court”.

Older, not younger, surely ? or maybe change to " This is more than five years before the claim was issued"

Coupon-mad

OK now we know what to do/say.  In 2019 Britannia did not use POFA wording in their NTKs so they could not hold keepers liable.

Search the forum for

defence Gargan Smith Edward true

and copy the added paragraphs you find in a recent defence about a non-POFA NTK. Take your time. Read a good ten search results.

FlatTyre

Coupon-mad said:

OK now we know what to do/say.  In 2019 Britannia did not use POFA wording in their NTKs so they could not hold keepers liable.

Search the forum for

defence Gargan Smith Edward true

and copy the added paragraphs you find in a recent defence about a non-POFA NTK. Take your time. Read a good ten search results.

So I searched the terms Gargan and Smith on the forum, and made some changes accordingly. I put the change into paragraph 4. Please have a look below and give me your feedback. I added paragraph #5 about the signage because my understanding is that if I do not mention it here, I cannot include it in my WS later on. 

As per the non-POFA NTK, I read plenty of entries in the forum as you suggested. While I now understand what it is about, and I understand that Britannia's PCNs in 2019 fell under non-POFA NTK, I could not find a trend to follow in building my Defence document. Were you referring to me needing it at Defence time? Maybe if you could direct me to what needs to be assimilated, please?

The changes I have made are:

----------------------------------------------

3. The alleged PCN is presented as having been issued on 30/08/2019. This is more than five years before the claim was issued. The Defendant does not recall being served with a compliant Notice to Keeper for these charges, that complied with the Protection of Freedoms Act ('POFA') 2012 wording prescribed in Schedule. Outwith the POFA, parking firms cannot invoke 'keeper liability'. This legal point has already been tested on appeal (twice) in private parking cases and the 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).  His Honour Judge 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.  His Honour Judge 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.

5. The Defendant has visited the premises that the Claimant referred to in the POC and has observed that the first sign upon entering the car park, as well as other observed signs, are not clear in their statement, and refer to the store entrance sign for full details. The store entrance doesn’t exhibit any clear signage related to parking. Instead, the sign is posted at the BACK of the entrance invisible for people who walk into the store after parking. The misleading statement on the signs and the lack of clear visibility of full details about the parking raise questions about the enforceability of any agreement.

KeithP

FlatTyre said:
I added paragraph #5 about the signage because my understanding is that if I do not mention it here, I cannot include it in my WS later on.

Doesn't paragraph 19 of the template Defence meet that need?

FlatTyre

KeithP said:

Doesn't paragraph 19 of the template Defence meet that need?

Possible. I thought I was rather marking an issue about signage placement. If other signages tell me to read the signage at the entrance for full details, then the (added?) problem is that the signage cannot be found at the entrance. But I am happy to delete it if #19 is deemed sufficient to mount the related evidence in the WS.

Coupon-mad

I think it's fine - good to go, with or without it.