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Pcn small claim but no defence
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You can download it - the N180 form but wait until the court asks you to fill one out.Now I wait to see if the BW pay the filing fee and take it further and questionnaire directions come through....I did read somewhere though not to wait but to download it?0 -
A quick update that this is still going on. The wishful thinking that perhaps the PPC would fail to respond to court deadlines, not proceed, not file a fee etc did not happen.
A date is allocated and I am hashing out a witness statement (and struggling) but reading as many as I can via the link in the sticky for newbies for some direction on how I should compose mine.
My defence above relied heavily on the NTK & POFA as this was an overstay matter (24 minutes overstay on a 3 hour free term it transpires from the other sides statement) < these details were not previously known from POC...and no recollection of ever receiving an NTK in the first place.
The said car park in a retail outlet complex is littered with many large signs up on lamposts possibly every 12 yards so it's a hard one to defend in terms of clarity/frequency of signs.
I am now wondering if the 14 days before hearing includes weekends for the WS. As today is 16th May and hearing is 6th June. If it does not include weekends, then this witness statement needs to be in today (which I hope can be emailed) if it's a straightforward 14 days I still have a few days left.0 -
Does it say 14 days or 14 working days?
I know which it says, you need to read it.
Surely 14 days before 6 June is 23 May - another week away?0 -
Thank you for your response KeithP, and for sticking with this thread, I half thought it would be a dead thread by now.
The exact wording on the Notice of Allocation court papers says: "It is essential that you provide the Court and your opponent with written statements of evidence....no less than 14 days before the hearing"
Since many companies and gov departments operate things on working day basis, I didn't want to assume anything as assuming things is how im in this mess to begin with. I will be relieved if it's actually 23rd of May.
I want to add that I asked advice on a Facebook closed group dedicated to fighting parking tickets...and one person's comment regarding the NTK was "I don't know how you are defending this without the NTK".
The truth is I don't have it, I have no recollection of one coming through the door (being an alleged incident back in 2015) And no, I did not think to request a copy of one (or that I even could) when the letter of intended court action came through.
That letter, the claim form and anything from the PPC since then are all the correspondence I currently have following bad advice to "ignore and they'll go away".
The other side response to my defence statement is a pack that includes photos (photocopies) of the vehicle with clear time and dates stamps showing a period of 3hrs 24 min between them. An overstay of 24min they argue.
Photos of different sections of the car park which contain signs, copies of the actual signs themselves showing their wording, plus what seems to be a contract between VCS and the landowner dated from 2012. I guess in response to points in my defence.
No copy of the NTK or other correspondence in their statement.
They have thrown in latin legalese here and there, go into depth about the contract that the driver agreed to when entering the site, quoted Parking Eye vs Beavis, Office of fair trading vs Abbey National and various code of practices to defend the extent of charges against me.
I'm sat trying to translate the Latin and look up these case law quotes and I'm a fish out of water.0 -
Flash it up here, someone will be able to help.I'm sat trying to translate the Latin and look up these case law quotes and I'm a fish out of water.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Dropbox it. Strictly speaking noone should really use Latin maxims at all. The Woolf reforms were supposed to end that nonsense in c.19980
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Terms like "Inter Alia" I have since googled but using Latin is not helping the current anxiety about all this. It feels like the legally trained are flouting their knowledge and big words about in the face of a layperson to unnerve them or something.
I do want to highlight a few points in the BWL rebuttal to my defence statement.
I argued (over several paragraphs) about the POC being inept, void of details and hence no cause for action etc.
They argued back that due to Practice Direction 7E 5.2 (a) and 5.2A...POC done online are limited to 1080 characters and because of 7.3 of Practice Direction 16, attachments of docs to POC's does not apply to claims started online. - So it appears that they shot down my initial arguments from what i can deduce.
More importantly though and the argument I am relying on despite me not having the NTK is the Keeper Liability Argument and I would be grateful for any insight on this.
I've argued that I was not the driver at the time of alleged contravention.
They argued that as I had not provided them with a name within 28 days of the PCN, they will hold me liable with the "reasonable presumption that the driver of the vehicle had either actual or ostensible authority to enter into a contract with our client in relations to parking on your behalf".
Is this a permissible argument?
They supported this by quoting Combined Parking Solutions Ltd vs AJH Films Ltd (2015).
Having looked this case law up - I don't know if BWL is right. The above case involves employer liability for an employees actions (and according to an article on parking prankster, it's an irrelevant argument. Is it?
I don't want to rebut this in the Witness statement if they are correct and I end up looking stupid.0 -
And "trumped" by Launchbury v Morgans 1972 from the highest court in the land, (at the time):-.
They supported this by quoting Combined Parking Solutions Ltd vs AJH Films Ltd (2015).
http://www.bailii.org/uk/cases/UKHL/1972/5.html0 -
POC done online are limited to 1080 characters
Correct. But do their PoC actually run to 1080 characters and can they point me to the part of the CPR that permits them to serve inadequate particulars merely because of the computer portal. If more room is required, they can send you a set of separate Particulars. The computer portal allows them to do so.
because of 7.3 of Practice Direction 16, attachments of docs to POC's does not apply to claims started online
Correct. However, where you have asked for essential documents pre-action there is no reason for them not to have supplied them.
as I had not provided them with a name within 28 days of the PCN, they will hold me liable with the "reasonable presumption that the driver of the vehicle had either actual or ostensible authority to enter into a contract with our client in relations to parking on your behalf".
What a load of B.S.
1. There is nothing in POFA, criminal or civil law that permits anyone to make a presumption as to the driver
2. The law only permits liability for the actions of a vehicle driver to attach to the driver (hence the process of declaring the name of a driver). Both then have mechanisms to penalise the keeper for not naming the driver - in this case POFA (if complied with) transfers the liability across.
3. The Claimant appears to state in their witness evidence an Agency argument (google law of agency) that the driver had authority on behalf of the keeper to enter into contracts. Nothing in law permits that assumption and, in particular, it is not pleaded. This is material variation of the Claimant's case that is both misconceived and impermissible. The Claimant needs to apply to amend their PoC if they wish to advance that argument (I assume they have not), but they should not be permitted to so amend because it has no reasonable prospects of success.
4. The claimant has no direct contract with the defendant permitting liability to transfer to the keeper in the absence of a driver being identified.
5. POFA only permits transfer of liability in certain, strictly controlled circumstances.
6. Combined Parking Solutions Ltd vs AJH Films Ltd (2015) concerned a company relationship with an employee in a company vehicle in the course of his employment. This appears to be rather different. Indeed, one might suggest that referring to that shows a fundamental misunderstanding of that case or, alternatively, the use of a template statement from one court case inappropriately in this one...
I'd write to the Claimant taking apart their witness statement, which is not a statement of facts at all but seeks to shore up their inadequately pleased case. I would make it clear that you will seek to limit their case to the pleaded particulars should the claim proceed to a final hearing. In any event the arguments raised in the statement are, as set out, unmeritorious.0 -
Launchbury
Still good law. You learn something everyday.
Case Digest
Subject: Negligence
Keywords: Cars; Driving; Vicarious liability
Summary: Highways; car driven by another for owner's purposes
In order to fix vicarious liability for the negligence of the driver of a motor-car on the owner of the vehicle, it must be shown that the driver was using it for the owner's purposes under delegation of a task or duty. When H and W married they each owned a car, but H sold his car and thereafter the family owned only one car, which was changed from time to time but always registered in W's name. It was treated as a family car and was used mainly by H who worked seven miles from the matrimonial home. Occasionally H had a drink on the way home, and W had asked him not to drive the car himself if he was not sober. On one occasion H had a great deal to drink, and asked C to drive him home. There were three passengers in the car together with H when a collision occurred through the negligent driving of C. H and C were killed. The passengers sued W as owner of the car, claiming that she was vicariously liable for the negligent driving of C.
Held, that to fix vicarious liability on the owner in such a case, it must be shown that the driver was using the car for the owner's purposes under delegation of a task or duty, and on the facts, that was impossible to hold0
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