UK Car Park Management Gladstones claim

Stableintrovert

I have used most of those exhibits - the ones that are relevant. Do I need to add some more?

Car1980

Personally (and other may disagree) I would just stick to the keeper liability and nothing else. Otherwise you're defending against fresh air.

My suggestion of all you need for your WS statement would be this:

1. On 14/12/2023 I received a Parking Charge Notice, forwarded from my previous address by the new owner of the property.  The PCN was in my name as the Registered Keeper, but the driver at the time was my son. It appears to relate to parking in his allocated parking space but ‘not displaying his permit’; something he denies.

2. As soon as I received the PCN, I set out to transfer liability to the driver, which is legal right afforded to me under the Protection of Freedoms Act 2012. I telephoned the number on the letter, but was there was no answer. I continued to phone, sometimes several times a day, holding on for up to an hour at a time.  On 24/12/23 I left a message on the company portal giving them the driver’s details. At this point, liability had been legally transferred as the Claimant now had the name and address for the driver. All obligations as keeper had been discharged and the Claimant had no legal recourse to demand or obtain payment from myself from this point forward.

3. As no response was received, I then contacted the complaints department via email. On 10/01/24 a representative of the company phoned me from (tel number) and took all my son’s details, promising to contact him and take payment.

4. She then rang my son, he explained that he had indeed been displaying his permit, but she said he would still have to pay the "fine" (sic). He refused to pay the charge but again he gave her his full details: name and address.

5. The Claimant then responded to the email from the complaints department attaching letters that I did not receive, falsely stating that ‘the letters outline the details on to provide the details for the driver of the vehicle if this was not yourself, and these were not provided within the stated time frame, therefore you remain liable as the keeper of the vehicle under the Protection of Freedoms Act 2012.’

6. The Claimant misunderstands (or more likely is purposefully misrepresenting) the keeper liability sections of the Protection of Freedoms Act 2012. The 28 day time period is not a “transfer of liability window”. By naming the driver of the vehicle on 24/12/23 above any obligations as keeper have been discharged. The keeper in fact has the option to provide the name and address of the driver at any time up until proceedings are issued.

7. The POFA 2012 states:

Right to claim unpaid parking charges from keeper of vehicle

4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.

(2) The right under this paragraph applies only if—

(a) the conditions specified in paragraphs 5 [are met]

Conditions that must be met for purposes of paragraph 4

5(1)The first condition is that the creditor—

(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2) Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

8. Once the Claimant had actual knowledge of the driver identity (name and address), the conditions in paragraph 5 were no longer met, so the right to pursue the keeper was extinguished.

9. I exchanged further emails with the Claimant's solicitor, Gladstones, who simply refused to listen and persisted in refusing to transfer liability.

10. Exhibits which follow:

• Exhibit A - email trail.
• Exhibit B - SCS law article explaining keeper liability https://portfolio.cpl.co.uk/Parking-News/395/26/

Coupon-mad

I like that but do wonder if the son's flat lease might also help as an 'in the alternative' argument. Worth us looking at his lease?

Son might also be able to corroborate that they called him and had his name and address in 2023 (a separate WS from son?).

Johnersh

The version from @car1980 is much closer to what I would suggest. Specific to the facts and focussed upon the only basis that C can bring the claim if the op was not the driver.

I'd get a 1 line statement from son to say he was the owner and driver to cover off driver liability for completeness.

The point is that C has issued against the wrong defendant, despite being on notice. I would *never* allege intent to mislead the court unless you can support that. Instead use phrases like:

The claim against the op is misconceived..

The claimant appears to have misunderstood the provisions of ss 5(1)(b) and  5(1)(2) namely that C is permitted to pursue a keeper where it does not know the driver and at any point after 28 days then commences proceedings. Provided that a name and address for the driver was provided prior to issue, it follows that there is no basis upon which C may pursue keeper liability.

Stableintrovert

@Johnersh Thank you.  So:

6. The claimant appears to have misunderstood the provisions of the keeper liability sections of the Protection of Freedoms Act 2012. ss 5(1)(b) and  5(1)(2) namely that the Claimant is permitted to pursue a keeper where it does not know the driver and at any point after 28 days then commences proceedings. Provided that a name and address for the driver was provided prior to issue, it follows that there is no basis upon which C may pursue keeper liability. The 28 day time period is not a “transfer of liability window”. By naming the driver of the vehicle on 24/12/23 above any obligations as keeper have been discharged. The keeper in fact has the option to provide the name and address of the driver at any time up until proceedings are issued.

Coupon-mad

You missed out:

The claim against me is misconceived..

Johnersh

Busy day. Will come back to this when I can...

Johnersh

For goodness sake check, amend and make your own.  But if I were to sharpen Castle's quality offering, I'd probably do it a bit more like this (slightly overstepping into legal argument here beyond pure fact).  Also the o/p MUST get a statement from son saying "yep I'm the driver, the PPC called me and I told them that" It becomes very difficult to challenge the factual premise of the whole lot at that point.

 

I [name] of [address] do say as follows:

 1.                  I am the defendant in this matter. I make this statement in connection with the Claimant’s claim against me for contractual damages arising from a parking charge notice (‘PCN’).

 2.                  The claimant’s particulars of claim allege that I was the driver of vehicle [registration] on [date] when a parking infringement occurred, causing the driver to become liable for a PCN (“driver liability”). In the alternative, it is alleged that I may be liable for the PCN as keeper of the vehicle (“keeper liability”) under the provisions of Sch. IV of the Protection of Freedoms Act 2012.

 Defence to the claim

 3.                  My defence to the claim, put simply, is that the Claimant brings this claim against the wrong defendant. Not only is the driver prima facie the correct defendant, the Claimant has his name and address details on file and could, have redirected their claim appropriately without recourse to legal proceedings at all.

 4.                  In this statement, I address the facts in relation to both bases upon which the Claimant brings their claim. I am defending this claim on the basis that:

 (a)  I was not the driver of the vehicle at the material time, such that driver liability cannot be made out; and

 (b)  Having provided a name and address for the driver at the request of the Claimant prior to the commencement of these proceedings, there is no longer any legal basis under which keeper liability may be established pursuant to Sch. IV of the Protection of Freedoms Act 2012 (“the Act”).

 Driver Liability

 5.                  This claim concerns a PCN issued in respect of vehicle [registration]. I am not the legal owner of that vehicle, having [sold/given/lost] it to my son [full name] on or about [date]. It was my understanding that my son would re-register the vehicle in his own name.

 6.                  On 14/12/2023 I received a PCN, forwarded from my former home address by the new owner. The PCN identified that the driver of the vehicle was responsible for a parking charge which occurred on [date]. The PCN had been sent to me as vehicle [registration] remained registered to my former home address and in my name. I therefore recognise that whilst I was neither the legal owner of the vehicle nor the driver, I remained the registered keeper of the vehicle at the material time.

 7.                  I was correctly contacted by the Claimant in the first instance as the registered keeper. However, I have no knowledge of the facts and matters arising from the parking event on [date] since I was not the driver and not present. By definition I did not read and accept any contractual parking terms as may be alleged as I was not present to do so. There was no contract between me and the Claimant.

 

Keeper Liability

 8.                  Following the instructions set out on the PCN, I sought to advise the Claimant of the driver’s details and his address. I contacted the Claimant on by telephone upon receipt of the PCN, but could not get through. I therefore persisted over several days. [set out a bullet list of dates if you have a record]

 9.                  On 24/12/2023 I left a message on the Claimant’s online portal providing them the driver’s details.

 10.             As no response was received, I then contacted the complaints department via email. On 10/01/24 an employee, servant or agent of the Claimant phoned me in response to the complaint. I was again asked to provide the name and address details for my son. Those details were provided. I was informed that the Claimant would contact him directly to take payment. I believe that the Claimant did so and am unclear why the Claimant now seeks to bring a claim against me.

 11.             The basis upon which the Claimant can bring a claim against a registered keeper is strictly regulated by the Act, with the need for specific requirements to be met.

 12.             S. 4(4) provides that keeper liability cannot be established at all until a period of 28 days have expired since notice was given to the keeper. I acknowledge that this notice was properly given to me in writing.

 13.             S.5 sets out additional pre-conditions, which I have reproduced below, with my emphasis in bold.

 

5. Conditions that must be met for purposes of paragraph 4

(1) The first condition is that the creditor—

(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charges; but

(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the driver and a current address for service for the driver.

(2) Sub-paragraph (1)(b) ceases to apply if (at any time after the end of the period of 28 days beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid parking charges from the keeper.

14.             In relation to s.5(1)(a) I have no direct knowledge of the parking events. It may be that the Claimant has the right to pursue the PCN against the driver. However, in relation to s.5(1)(b) the Claimant had actual knowledge of the driver’s name and address. As the driver was my son, I was well placed to provide those details promptly and accurately. As stated above those details were confirmed orally and in writing. The Claimant has had knowledge since at least 24/12/2023.

 15.             Under s.5(2) a registered keeper can still be liable for a PCN. However, that circumstance arises only if in the period between the Claimant giving notice to the keeper and the time upon which the Claimant commences court proceedings, there has been no notification of the driver’s details. This is not such a case. I have made strident efforts to assist the Claimant to correspond with the correct party.

 16.            Proceedings is not defined in the Act. However, CPR 7.2(1) states ‘Proceedings are started when the court issues a claim form at the request of the claimant.’ As such, adopting the interpretation from the CPR, it is sufficient under the Act for the Defendant to name the driver and provide an address at any point prior to the Claim Form being issued. I provided details in a timely fashion. The Claim Form was not issued in this case until [date]. It is my belief that my obligations were discharged on either or both December 2023 and January 2024 when the Claimant had the correct name and address for the driver. Accordingly, since the pre-conditions pursuant to Sch IV at s5(1)(b) are not met, there is no basis upon which they are able to bring proceedings against me as keeper.

  

Unreasonable Conduct

 18.             For the reasons set out above, the Claimant’s claim is at best misconceived and at worst, has no real prospect of success.

 19.             The conduct of the Claimant in this matter has been unreasonable for the reasons set out below:

 (i)                The Claimant has wilfully disregarded all efforts to nominate the correct party to these proceedings. This has been a source of aggravation and demonstrates a failure to properly apply the principles of the Pre-Action Protocols and overriding objectives. Had the protocol been properly followed, the Claimant would have acknowledged the incorrect basis to pursue this matter and would have redirected their claim towards my son. If the Court accepts my evidence, the failure has caused delay and extensive correspondence which has been unnecessary pre-proceedings and these proceedings have incurred unnecessary cost and amount to a poor use of the Court’s time, taking account of scarce Court resources.

 (ii)              The Claimant has misstated the law in their correspondence to me as an unrepresented litigant in person. This is unreasonable in the context of the law related to private parking in circumstances in which the Claimant is a regulated parking provider and who is professionally represented. The correct interpretation of s.5(2) is as stated above. There is not a “28 day keeper transfer window” as is suggested in the correspondence that I have received, attached to this statement as Exhibit [ABC1] 

NB USE THE EXACT WORDING C HAS USED IN THEIR CORRESPONDENCE WHEN QUOTING. NO ONE ON THE FORUM HAS SEEN THAT.

 (iii)           The Claimant has claimed a sum in excess of that permitted by law for a party relying upon liability of a registered keeper. S.5(5) of the Act provides that 'the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper'. The notice to keeper that I received was in the amount of £100, which therefore means that there has been an enhancement of the capital sum by [XX] in addition to which interest is claimed.

Statement of Truth

etc etc

 

Stableintrovert

@Johnersh
I really appreciate the time you've spent on this for me. It's really kind of you. Thank you so much.

Johnersh

Pleasure. Once upon a time ukcpm did enough to "motivate" me. Lol.

Check it. Ensure dates etc are correct. It's your statement. If you haven't yet, ensure you have read pofa sch 4 before any hearing and have wrapped your head around it.