Help and guidance please

This is my second draft defence letter where the driver's identity has not been admitted


It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. The registered keeper has not been proven as the driver, as such the keeper can only be held liable if the claimant has fully complied with the strict requirements.

2. 1. The Protection of Freedom Act 2012 Schedule 4 has not being complied with.

a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.

c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).

3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which was dependent upon an undenied contract, formed by unusually prominent signage forming a clear offer and which turned on unique facts regarding the location and the interests of the landowner. Strict compliance with the BPA Code of Practice (CoP) was paramount and Mr Beavis was the driver who saw the signs and entered into a contract to pay £85 after exceeding a licence to park free. None of this applies in this material case.

4. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice or the Independent Parking Committee (IPC) Code of Practice. The Claimant was a member of the IPC at the time and committed to follow its requirements. The claimant was also formerly a member of the BPA, whose requirements they also did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

The signage is inadequate in terms of the following:

• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity
• Large numbers of confusing and conflicting signs, including signs from other parties, such that it was not clear which signs had precedence
• Lack of relevant terms and conditions, such as the fees for parking
• Inadequate positioning of signs, at unsuitable heights

5. As the Claimant failed to make reasonable efforts to make the terms and conditions of the car park clear and prominent, it cannot be assumed that anyone entering the car park was immediately aware of, and agreed, the terms and conditions. The Claimant is put to strict proof that the Defendant saw, read and agreed the terms upon which the claimant is relying on the day in question.

6. No evidence has been provided that a valid ticket was not purchased. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.

7. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Excel Parking Services Ltd.

a) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.

8. No sum payable to this Claimant was accepted nor even known about by any driver; as they were not given a fair opportunity to discover the onerous terms by which they would later be bound.

9 . The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

a) The Claimant has no commercial justification
b) The Claimant did not follow the IPC or BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

10. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £163.94 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions. In contradiction to this the claimant's solicitor has, however, described the Principal Debt as £100 and solicitor's costs as a further £110 in correspondence with the keeper summarised within the letter titled ‘Notice of county court claim issued’. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative’s costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

11. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.

12. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence are true."

Hi


I still can't sign in to or indeed read this forum at home! I can only add updates via work (although this has only started working since yesterday). The deadline for me to submit my defence is fast approaching...


I can't 'bump' this up the order at home, so I'll try again before I leave work at 5.00pm. PLEASE can someone let me know if my letters are any good, as after 5.00pm tomorrow, the only chance I'll have is to go to an internet caf! or library and as I have a busy home life, I can't guarantee that I can do that.


Thanks

Hi Keith and Lamilad.


Thanks for the advice. I'll try it when I get home, as I need to post my defence this weekend.


Lamilad - have you any advice regarding the above letters I posted on Wednesday?