Defence advice - DCB. Overstay in McDonalds

Carla23

Hello all. I would really appreciate any advice on my defence point 3. 

Background: my partner was driving, and visited with our child to the McDonalds in Manchester Fort for a kids bday party. It’s free to park for 90 min but he overstayed 21 min.  He forgot to give the car reg number to the staff (which the hosts advised at the start of the party) and thought the threatening PCN letters would stop because ‘it’s McDonalds’. Well now he has a county court claim but it’s in my name as the car is registered in my name. 

I therefore and defending as the keeper. 

Not sure if I have a leg to stand on because he did overstay the free parking. 

But I’ll give it a try.

Defence point 3

3.1 The defendant was not the driver at the time of the alleged contravention. The Claimant is put to strict proof of the identity of the driver, which has not been evidenced. The vehicle was parked at McDonald’s for the purpose of attending a children’s birthday party being held within the restaurant. McDonald’s policy allows 90 minutes of free parking for usual customers, but grants extended parking for guests attending a birthday party hosted at the restaurant. The driver was attending as an invited guest at such a party. No breach of terms occurred. The Claimant is put to strict proof that their alleged terms overrule or take precedence over McDonald’s express terms for party guests.

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 were 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.

1505grandad

Can you post a copy of the claim form redacting the usual including VRM, password etc. but leave all dates showing.

Gr1pr

As well as the above 

If you weren't driving,  say so at the end of paragraph 2

Keeper but not the driver 

He, the driver,  doesn't have a claim against him,  but you do  !

He is not involved here,  regardless of the circumstances,  so YOU must defend the case 

Carla23

1505grandad said:

Can you post a copy of the claim form redacting the usual including VRM, password etc. but leave all dates showing.

Sure thing. Here it is

Carla23

Gr1pr said:

As well as the above 

If you weren't driving,  say so at the end of paragraph 2

Keeper but not the driver 

He, the driver,  doesn't have a claim against him,  but you do  !

He is not involved here,  regardless of the circumstances,  so YOU must defend the case 

Yes will do. Looking to submit it today

Gr1pr

Carla23 said:

Gr1pr said:

As well as the above 

If you weren't driving,  say so at the end of paragraph 2

Keeper but not the driver 

He, the driver,  doesn't have a claim against him,  but you do  !

He is not involved here,  regardless of the circumstances,  so YOU must defend the case 

Yes will do. Looking to submit it today

Yes, you will have to,  on MCOL  ,  because 4pm TODAY is your defence submission deadline   !

Castle

Gr1pr said:

Carla23 said:

Gr1pr said:

As well as the above 

If you weren't driving,  say so at the end of paragraph 2

Keeper but not the driver 

He, the driver,  doesn't have a claim against him,  but you do  !

He is not involved here,  regardless of the circumstances,  so YOU must defend the case 

Yes will do. Looking to submit it today

Yes, you will have to,  on MCOL  ,  because 4pm TODAY is your defence submission deadline   !

Providing an AOS has been done.

Carla23

Castle said:

Gr1pr said:

Carla23 said:

Gr1pr said:

As well as the above 

If you weren't driving,  say so at the end of paragraph 2

Keeper but not the driver 

He, the driver,  doesn't have a claim against him,  but you do  !

He is not involved here,  regardless of the circumstances,  so YOU must defend the case 

Yes will do. Looking to submit it today

Yes, you will have to,  on MCOL  ,  because 4pm TODAY is your defence submission deadline   !

Providing an AOS has been done.

Yes it’s been done. I’ve just submitted my defence. Thank you for your advice