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LBC received- Please help

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  • Quentin
    Quentin Posts: 40,405 Forumite
    If you have inadvertently used your real name as your forum name you need to get MSE to change it to something anonymous


    The ppcs monitor here and can use posts in your thread against you in Court
  • Defence

    1.It is admitted that the Defendant is the registered keeper of the vehicle in question.

    2.The Defendant denies the Claimant is entitled to relief in the sum claimed or at all.

    3.The facts are that the vehicle in question was parked at xxxxxx Retail Park in a disabled bay whilst the driver (not the Defendant) a 1.5 year old baby and passenger made a quick visit to Lidl on xx/xx/xx which lasted less than 30 minutes.

    4.The Defendant has no liability as they are the Keeper of the Vehicle, and the Claimant has failed to comply with the strict provisions of PoFA 2012 to hold anyone than the driver liable for the charges.

    5.No evidence has been supplied by the Claimant as to who parked the vehicle.

    5a. There is no presumption in law that the keeper was the driver and nor is the keeper obliged to name the driver to a private parking firm.

    5b.Keeper liability has not been passed in accordance with Protection of Freedoms Act 2012 Schedule 4 (also referred to as PoFA) For the Claimant to recover the parking charge from the Defendant, the claimant must have followed the strict requirements in the PoFA 2012 Schedule 4, which provided that liability can be transferred from driver to keeper.
    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.

    This distinguishes the case from Elliott v Loake (1982) in which there was irrefutable evidence of the drivers identity. POFA 2012 Schedule 4 has not been compiled with and the Claimant may not quote reasonable assumption.
    In the case of Excel v Mr L (17/11/2016 Skipton) the judge dismissed the claim, summing up that: either the claimant could not prove the defendant was the driver, which they could not; or the claimant could comply with PoFA to pursue the defendant ad the keeper, which it was provided they did not.

    In POPLA'S Annual Report of the Lead Adjudicator 2015, on 'Understanding Keeper Liability ' the expert opinion of PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greensdale was that: " However keeper information is obtained, there is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver does not itself mean that the recipient has accepted that they were the driver at the material time.

    Unlike, for example a Notice of Intented Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 4 172 of the Roaf Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.

    6.Schedule 4 of PoFA also states that the maximum sum that may be recovered from the keeper under keeper liability is the amount specified on the Notice To Keeper. None of the sums whether separately or jointly as a total correspond with the amounts on the Notice to Keeper therefore the Claimant has failed to comply with the provisions. Therefore the Defendant has no liability in law and the Court is invited to strike out this Claim with immediate effect.

    7. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all this information is not present then the Notice to Keeper is invalid. The contravention reason stated in the Notice to Keeper just states "parked in a disabled space without clearly displaying a" which does not again provide mandatory information.

    8.Contact by the Defendant was made via email with every letter received, although no response was ever received, apart from generic letter received via the post. A request was made under the GDPR for all personnel information relating to the Defendant and the vehicle.
    These requests have been repeatedly ignored the requested information has not been provided.

    9. The Defendant sent a copy of the passenger's Blue Badge and highlighted the situation to the claimant. The driver and the passenger were parked for less than 30 minutes and as the driver was taking out their 1.5 year old baby who was having a major tantrum en-route to Lidl which carried on while trying to get their baby out who was screaming, kicking was very distressed this whole time the driver informed the passenger to put the Blue Badge the Badge was indeed inside the car on the floor which was noticed on return.

    10. As the registered keeper I have kept the claimant informed at all times as more than 1 person has access to my vehicle. I have provided them with a copy of the Blue badge at the first given opportunity and I strongly believe at this point the Claimant should not have continued to stress me further & pursue this matter since it would then be an indirect disability discrimination under the Equality Act.
    The Claimant should have made reasonable adjustments under the given circumstances as the occupants of the car were entitled to use that bay anyway.

    11.The Particulars of Claim does not state whether they believe the Defendant was the registered keeper and/or the driver of vehicle. These assertions indicate that the Claimant has failed to identity a Cause of Action and is simply offering a menue of choice. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras 7.3 to 7.5 further the Particulars of the Claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

    12. Due to the sparsness of the Particulars it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver if the vehicle, entered i to any contractual agreement with the Claimant, whether express, implied or by conduct.

    13. The PoFA, at section 4 (5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes additional £60, for which no calculation or explanation is given, and to which appears to be an attempt at double recovery.
    To engage a penalty the question was whether the relevant provision was "unconscionable" or "extravagant" (Lord Hodge at (221) The full test was expounded by Lord Hodge (at 255).

    14. The Surpreme Court was only prepared to accept a charge (£85) that was sufficient to act as disincentive and that was worth collecting. The Surpreme Court had previously stated that £135 would be unacceptable (Parking Eye V Somerfield). The charge to the Defendant of £185 is evidently extravagant and unconscionable in that it is disproportionate to the highest level of damages that could possibly arise from the Defendant's alleged breach of contract.

    15. The Defendant therefore disputes the amount claimed, as it comprises excessive and non-contracted elements, and costs must be proved. With reference to paragraph 31 the Claimant claims a sum of £185 as a 'parking charge' ( for which liability is denied).

    16. In Summary, it is the Defendant's position that the claim discloses no cause of action is without merit, and has no real prospect of success. Accordingly, the Court is invited to strike out the claim of its own intiative, using its case management powers pursuant to CPR 3.4 or at the very least order better Particulars and evidence from the Claimant in order for the defence to be properly based on the facts of this case. The Defendant invites the Court to dismiss any evidence which the claimant wishes to rely on during the hearing if this is not disclosed to the Defendant prior.

    The Defendant believes that the facts stated in this defence are true.

    Name/Signature/Date.
  • KeithP
    KeithP Posts: 37,432
    Name Dropper First Post First Anniversary
    Forumite
    But you filed your Defence some months ago.

    You should now be creating a Witness Statement.

    Have another look at post #2 of the NEWBIES thread. This time look at the part that describes how to write a Witness Statement and at the many example Witness Statements linked from there.

    This is your opportunity to tell your story.
  • Hi

    I have read some of the defence statement 's and tried to draft something relevant to my situation.

    Can the Judge ask me to name the driver on the day of the hearing ?

    how soon should I expect VCS to send me their statements against me? the court has said no later than 28 days before the final hearing which is 28th October?


    This following paragraph is from the court letter I understand its for the Claimant to send me, correct? Is there anything i need to mention with regards to this or have i covered the points that can help me win this case?

    ""Additional Directions in a contractual claim for breach of parking terms.
    Additional Directions: The evidence which the Claimant must file at court and send to the Defendant must include:
    1.A copy of any written terms of the contract between the parties
    2.A copy of the agreement by which the Claimant is authorised by the landowner to conduct parking operations on the land in question, redacted as necessary,
    3.Details of the location where the contract was made.""
  • Hi KeithP

    Yes Defence statement submitted but i must have got confused i thought i was to save this for the witness statement okay will have another go thank you for pointing me in the right direction : )
  • KeithP
    KeithP Posts: 37,432
    Name Dropper First Post First Anniversary
    Forumite
    The Defendant and Claimant will both have the same target date for filing and serving their Witness Statement and evidence.
  • Hi KeithP

    I have read the witness statements posted the Defendant addresses points raised by the Claimant to present an argument to the Judge etc

    So what do I put in the Witness statement just my side of the story as the Claimant has not sent me anything yet?

    Also If i send them my witness statement and they send me theirs later how will i be able to address the issues they raised because i have already submitted my WS earlier.

    please kindly advise
  • Redx
    Redx Posts: 38,084
    First Anniversary Name Dropper First Post Photogenic
    Forumite
    edited 19 August 2019 at 4:56PM
    yes you tell the facts as you know them , YOU are winess number one

    read recent posts by bargepole and Johnnersh in the thread by Didgeridoo so that you get the idea of what goes where and when

    your WS should also reference any numbered exhibits, plus include your costs order as well so its in early

    both you and the claimant are trying to delay the WS as long as possible so that one cannot use the other to their own advantage, its a game of chicken, all you can do is tell the story and facts as you know them to be , add exhibits and add your costs order

    your defence has already been submitted, so cannot be changed, plus must not be resubmitted either
  • Hi Redx : )

    will go back and read them posts and follow through hopefully by Wednesday post my WS if you all can have a read through highly appreciated!!
  • Hello

    Please find below my WS I have tried to keep it simple and the facts. I need all your help as this is the best I could do having read the links on the forum and finding whats relevant to my situation.


    The court date is 11th October and VCS has still
    not sent their WS . 28 days prior to 11th October I am looking at sending it to them by the 5th September would this be okay?


    In the County Court at XXXXX
    Claim No. XXXXXXXX
    Between
    xxxxxxxx (Claimant)
    and
    xxxxxxxx (Defendant)


    1. Preliminary

    1.1 I, XXXX XXXX, of XXXX XXXX XXXy, XXXX XXXX am the Registered Keeper of the vehicle XXXX XXX. I am unrepresented, with no experience of Court procedures. If I do not set out documents in the correct way, I trust the Court will excuse my inexperience.

    1.2 I deny every allegation set out in the Particulars of Claim.

    1.3. Whilst I am the Registered Keeper of the vehicle concerned, there is no evidence of the driver.

    1.4 The Defendant denies being the driver at the time of the supposed event, and therefore puts VCS to strict proof that any contract can exist between the Claimant and themselves.

    1.5 More than one family member, who I have no obligation to name to a private parking firm, have access to this vehical. It remains the burden of the Claimant to prove their case.

    1.6 The claim refers to a parking incident involving vehicle XXXX XXXX on XXth October 20XX at XXXX XXXXX but due to the sparseness of the Particulars of Claim it is unclear as to what legal basis the claim is brought, whether for breach of contract, contractual liability, or trespass. However, it is denied that the Defendant, or any driver of the vehicle entered into any contractual agreement with the Claimant whether express, implied or by conduct.

    1.7 The facts in this statement come from my personal knowledge. Where they are not within my own knowledge, they are true to the best of my information and belief.

    1.8 I am not liable to the Claimant for the sum claimed, or any amount at all, and this is my Witness Statement in support of my Defence already submitted.


    2. Sequence of Events

    2.1 On XXXX XXXXX the driver and occupants made a quick visit to Lidl. The vehicle was carrying a relative who suffers from various health issues and is a blue badge holder, the driver and family were in a rush and had a 1.5 year old baby who was in the baby chair, screaming his head off, kicking, crying, choking red in the face, clearly very distressed. The driver parked and quickly got off the vehicle to attend to the child. On returning to the vehicle the driver noticed a slip of paper purporting that "This is not a parking charge notice" which also mentioned some documents being attached but the driver couldn't see anything attached.

    2.2 The blue badge was inside the car and must have fell the situation at the time was one of panic and stress where all the attention & focus was all on the child. The driver was parked maybe for about 15-20 minutes, it was late in the evening & dark.

    2.3 I had informed and made a formal complaint to VCS of the situation and provided them with a copy of the Blue Badge but they continued to pursue this matter and mentioned in response that they will not waive the charge as the 'blue badge was not visible'. However, just because someone does not hold ( or does not display) a badge does not mean they are not disabled; the Equality Act does not require the driver to display any sort of badge or permit. Anyone who fits the lawful definition of disability is entitled to make use of the 'reasonable adjustments'. What they are in effect doing is adding arbitrary rules to the lawful right of someone to use a 'reasonable adjustment', and this could be considered a breach of Equality Act 2010.

    2.3a. Therefore having provided VCS with a copy of the blue badge they should not have had to continue pursuing the charge since it would then be disability discrimination under the Equality Act 2010. I strongly feel VCS have a duty of 'reasonable adjustment' to disabled persons as a parking company, to take this matter to court is astonishing. For council-owned car parks and public roads, the blue badge scheme is run to enable holders to show that they have certain parking rights. However, the blue badge scheme does not apply on private land such as XXXX XXXXX. A copy of the blue badge is provided Exhibit NA1

    2.4 I contacted Lidl Customer Service when this happened and even they were prepared to cancel this charge given the circumstances but because this is a Retail Park and their premises are on lease they don't have any contracts directly with the parking firm.

    2.5 I would like to refer to an extract from POPLA Annual Report 2015 barrister and parking law expert Harry Greensdale was the POPLA ( Parking on Private Land Apppeals independent service offered by the BPA) lead Adjudicator from 2012 - 2015. Mr Greensdale confirms that there is no presumption in law that a keeper was a driver and that keepers do not have any legal obligations whatsoever, to name drivers to private parking companies Exhibit NA2

    3. Declaration

    I invite the Court to dismiss this claim in its entirety, and to award my costs of attendance at the hearing, such as are allowable pursuant to CPR 27.14.

    Statement of Truth

    I believe that the facts stated in this Witness Statement are true.

    XXXXXXXX XXXXX
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