Defence review requested following Claim Form - Am keeper but not driver

bagold

I would appreciate if anyone can review my Defence. I have acknowledged the Claim Form online as advised in Newbies thread. 

My daughter was the driver and parked in hospital car park to take her daughter to A&E. Being based in Scotland she forgot about hospital car park charges. Unfortunately I ignored all letters from ParkingEye since the Parking Charge Notice. 

Details of the claim are:




I have written the following Defence to be emailed to ClaimResponses.CNBC@justice.gov.uk as per guidance on Newbies thread. To be honest I don't understand most of it.

bagold

The facts known to the Defendant:

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. The Defendant was not the driver

 

3.  The Defendant was not the driver of the car on 23 July 2024 which is the date of issue of Parking Charge (reference xxxxxxxxxx). In fact, the defendant did not have access to the vehicle with registration XXNNXXX when this vehicle was lent to a third party between 10 July 2024 and 21 August 2024 for the entirety of this time period.  This Claimant cannot invoke keeper liability

KeithP

You have left your MCOL password clearly visible in that image you have shown us.

Are you expecting someone to read all thirty paragraphs of your proposed Defence looking for issues? Suggest you edit your posts so that you only show those Defence paragraphs that you have actually changed of added.

With a Claim Issue Date of 4th November, and having filed an Acknowledgment of Service in a timely manner, you have until 4pm on Monday  9th December 2024 to file a Defence.

That's over four 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

Please delete your third post.  We don't want to see the Template Defence. We don't need to check it so please remove the third post.

I REALLY WISH YOU'D NAMED YOUR DAUGHTER AS THE DRIVER (WITH HER SCOTTISH ADDRESS). SHE COULDN'T HAVE BEEN SUED BECAUSE SHE LIVES OUT OF JURISDICTION OF THE ENGLISH COURTS.

Too late now but...ouch!  You had four/five letters inviting you to name her.  We wish you'd asked us sooner.

You are likely to lose and should make an offer at Mediation stage. Maybe £40 or 50. That would cover their costs easily.

But first you have to defend to get to Mediation stage.

Remove this:

"This Claimant cannot invoke keeper liability".

Oh yes they can!  In most cases.

So remove all this, too:

The Defendant was not the driver. The defendant was not anywhere near the car at the time of the alleged breach of contract. As the registered keeper, the Defendant is as a matter of law, not liable to this Claimant, who (by their own choice of wording on the Notice to Keeper) cannot invoke 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012 ('the POFA').  This Claimant routinely aims speculative claims at registered keepers and hopes to obtain CCJs in 90% of cases (regardless of lawful liability) which is wholly unreasonable conduct.  The Claimant knows full well, mainly from two cases at appeal in recent years - one lost by VCS, and one lost by their sister company, Excel Parking - that they cannot hold keepers liable outwith the POFA, and cannot rely upon an assumption that the keeper was driving:
 
(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 somehow acting 'on behalf of' the keeper, which was wholly without merit. Excel were not left without a remedy in car park management: they could have used the POFA but they 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, as in this case) to nominate the driver, because the POFA does not invoke any such obligation.  HHJ Gargan held:

Not sure why you cut that last sentence off but either way, all of the above is completely irrelevant for a PEye claim.  VCS & Excel are nothing to do with ParkingEye.

Change this to make sense because clearly there is a small £1 loss or whatever (the fee):

"4. The Claimant will concede that no financial loss has arisen and that..."

Now show us a photo of BOTH SIDES of the PCN (not the Reminder) and please don't tell us you binned it?

bagold

Coupon-mad, Totally holding my head in shame. I don't have the original PCN. I gave it to my daughter who shortly after emigrated to Qatar and has no clue where it is. 

I was just following advice on "Newbies!! Private Parking Ticket?" thread
"(d) if you are defending as keeper, not driver, include a copy of Schedule 4 of the POFA and also exhibit the transcripts of Excel v Smith and VCS v Edward (search the forum!)."

Do you suggest for paragraph 3 everything "The Defendant was not the driver...." and after should be deleted?

I do appreciate all the advice given.

bagold

I hope my second post on this thread looks better now. 

Gr1pr

Not really, the claimant probably CAN invoke keeper liability by invoking the law named POFA 2012. !

That last short sentence should be removed in p3

Paragraph 3 needs to address the POC on the claim form , " parking without a valid ticket"

Not being the driver is no defence , and P3 does not address the POC 

The defendant will have an uphill battle with this case

Coupon-mad

bagold said:

Coupon-mad, Totally holding my head in shame. I don't have the original PCN. I gave it to my daughter who shortly after emigrated to Qatar and has no clue where it is. 

I was just following advice on "Newbies!! Private Parking Ticket?" thread
"(d) if you are defending as keeper, not driver, include a copy of Schedule 4 of the POFA and also exhibit the transcripts of Excel v Smith and VCS v Edward (search the forum!)."

Not with ParkingEye.

bagold

Gr1pr said:

Not really, the claimant probably CAN invoke keeper liability by invoking the law named POFA 2012. !

That last short sentence should be removed in p3

Paragraph 3 needs to address the POC on the claim form , " parking without a valid ticket"

Not being the driver is no defence , and P3 does not address the POC 

The defendant will have an uphill battle with this case

Thanks. Do you advise just paying up?

Coupon-mad

Why would any defendant do that, when you can easily defend then (if you think your case is weak...we don't know), offer fifty quid at the Mediation phone call?

Gr1pr

I would advise doing what coupon mad said above, negotiate a settlement at the appropriate time