6 year old pcn county claim form received

Thank you Loadsofchildren123, that's really helpful!

Thank you Loadsofchildren, the definitions and abbreviations section is a great idea. I will definitely do that.

I still need to work on arranging the references and bundles and citing them clearly. However, I am trying to get my bundle and skeleton in as soon as possible so thought I would bring the content of the skeleton here for comments over the weekend while I work on the rest.

I have tried to keep my argument as clear and concise as possible. The only case that they rely on which I haven't referred to yet is Chaplair Limited v Kumari 2015 EWCA Civ 798. They are using it to argue recovery of contractual costs 'that does not alter the fact that it remains a contractual entitlement which the court will enforce subject to its equitable power to disallow unreasonable expenses... the judge has juristication to assess the costs free from any restraints imposed by CPR 27.14'
Any thoughts on this would be most welcome!

So here is what I do have so far...

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SKELETON ARGUEMENT ON BEHALF OF xxx
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1. This skeleton argument is to assist the Court in the above matter for the hearing dated XX/XX/2018.

2. The Claimant’s witness will not attend the hearing, presenting a significant disadvantage for the Defendant.

3. The witness and the accompanying witness statement is not credible. It contains invalid, false and vexatious statements which can be shown in this skeleton argument.


PREAMBLE

4. The Defendant first received correspondence from the Claimant in February 2012 and submits that the bright, alarmist letters were seen as a scam or spam, and were recognised at the material time as not from an authority such as local council or the police.

5. The Defendant did not recall engaging with the Claimant until their witness statement and trial bundle was received in April 2018. The Defendant submits that the email communications (REF ) into which she entered in 2012 did not constitute an official “appeal” against the PCN as stated by the Claimant (Paragraph # XX) as she was under no obligation to do so as the keeper. The Defendant responded to the Claimant’s communications only to refute keeper liability.

6. This claim relates to an alleged contravention more than six year ago. It is averred that to wait to submit a claim until two days before any alleged ‘debt’ is Statute Barred under the conditions of the Limitations Act 1980 is an abuse of the court process.

7. The Defendant has identified the following areas of dispute:
(a) Presumption of the Driver
(b) Keeper Liability
(c) Terms and conditions
(e) Costs

THE PRESUMPTION OF THE DRIVER

8. The original PCN issued on X February 2012 by this Claimant states 'liability lies with the driver of the vehicle' (see Claimant’s Bundle, REF).

9. The Claimant states that the “Defendant is presumed to be the driver of the Vehicle on the Contravention date” (Claimants Bundle, para #X). The Defendant brings to the Court’s attention Parking on Private Land Appeals (POPLA) Lead adjudicator and Barrister Mr. Henry Greenslade’s statement regarding keeper liability in the POPLA Annual Report of 2015: “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.”

10. District Judge Skalskyj-Reynolds in the case of Excel v Lamoureux 2016 C3DP56Q5 (REF) comes to a comparable conclusion as Mr Greenslade: “The defendant denies he is the driver and the claimant has absolutely no evidence that he was the driver. There is no assumption in law that the registered keeper is also the driver of the vehicle.”

11. Unlike, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Mr Greenslade also comments on this issue in the 2015 POPLA Annual Report: “…a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time” (REF).

12. The Defendant has demonstrated to the Court that the Claimant was and is not entitled to presume that Defendant was driving the vehicle at the material time and that the burden of proof for identifying the driver should not lay with the Defendant.

KEEPER LIABILITY

13. If the Defendant cannot be presumed to be the driver then the court must decide whether the Defendant is liable under the provisions of POFA as the registered keeper. The Protection of Freedoms Act 2012 (PoFA 2012) which came into force in October 2012 is the only legislation currently available allowing a private parking firm to hold a registered keeper liable (Defendants Bundle, Copy of Schedule 4 of the PoFA REF). As the date of the alleged contravention occurred before the enactment of the PoFA, the Keeper cannot be held liable in law.

14. In 2012, the year of this alleged parking event, Excel were sanctioned by the DVLA for stating or implying in signs or documents that a registered keeper could be held 'liable for the payment of charges' and/or had any 'legal responsibility' to name the driver (see REF). It is contended that this is exactly what Excel are now doing in this claim, conduct which was identified in 2012 as 'a significant breach' of their Trade Body Code of Practice with the British Parking Association. So serious a matter was this, Excel were banned from obtaining data by the DVLA for three months.

15. The claimant relies on the Comprised Parking Solutions Ltd (CPS) v AJH Films Ltd 2015 EWCA Civ 1453, a case regarding an employer, employee and a company vehicle which has no application to this claim. CPS v AJH Films Ltd sought to make the owner of the vehicle (which was a company vehicle) vicariously liable for its’ employee’s actions and therefore bind AJH Films Ltd as owner of the vehicle to a contractual agreement . As vicarious liability cannot succeed without tort, CPS successfully argued that the employee was in ‘agency’ for the employer.

16. The Defendant draws the court’s attention to Excel Parking Services v Smith (appeal) Stockport, 08/06/2017 C0DP9C4E Appeal M17X062. In that case, Mr Smith was the keeper but not the driver on the day. DDJ Cowell found that CPS v AJH Films allowed the transfer of liability from Driver to Registered Keeper as the driver was the keeper's agent. However, following the judgment Mr Smith expressed surprise as he had previously had an identical claim dismissed where CPS v AJH Films was found not to apply. DDJ Cowell acknowledged that had this been known to her before then the Judgment may well have been different. She gave permission to appeal both claims. On appeal it was found that CPS v AJH Films is only applicable in an employee/employer situation. This was not such a situation and the appeal was upheld (REF).

17. The Defendant has demonstrated to the Court that the Claimant has failed to make the Defendant liable as registered keeper.


TERMS AND CONDITIONS

18. The Claimant states that the driver entered into a contract on the displayed terms (Claimants Bundle REF) and breached the Terms and Conditions of the Car Park.
The Claimant submits that they have a clear and legitimate interest in maintaining the Terms and Conditions of the Car Park on behalf of the landowner. The Claimant has failed to show a cause for action by way of sight of a copy of the contract they have with the landowner to assign the right to enter into contracts with the public and to make claims and take civil action against drivers in their own name, in 2012. The Claimant refers the Court to Exhibit XXXXX (Claimants Bundle) which shows “a witness statement endorsed by an authorised member of the landowners managing agent confirming the Claimants entitlement to enforce terms and conditions of the Car Park”. I submit that this witness statement is dated 15th September 2015, more than 3 years after the date of the alleged contravention.

19. The Claimant asserts that this case is not distinguishable from ParkingEye v Beavis 2015 UKSC 67 (the Beavis case). The Defendant avers that there are significant and crucial differences. The Beavis 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. When the sign referred to in the Beavis case (REF) is compared to the Excel car park signs in the claimants bundle (REF, Pages XXX), the defence submits that no reasonable person would agree that their terms are similarly “brief, clear and prominently proclaimed”.

20. Further, it was shown that 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 is applicable to this case, and the Supreme Court was at pains to state that each parking charge case would necessitate individual consideration of the facts.

21. It is contended that the signs that were in place at the location were unclear and wordy, in a blue and yellow design (as advised against in the BPA code of practice (see Defendants Bundle, BPA Code of Practice 2012, REF) with the actual terms and 'parking charge' buried in small print, thus being incapable of forming a contract. This claim is supported by the images provided by the Claimant (see Claimants Bundle, REF). The same was found in many cases involving Excel signs at and around that time. DJ Lateef's damning findings about Excel retail park signage in 2011 in Excel Parking Services v Cutts (case no: 1SE02795 at the Stockport County Court) included these observations from her visit in person: “The key issue was whether Excel had taken reasonable steps to draw to Mr Cutts’ attention to the terms and conditions of using the car park”. The signs were found inadequate and the claim was thrown out (see REF).

22. The Claimant asserts that the Terms and Conditions of the Car Park in question were breached through a failure to display a parking ticket. The Claimant’s evidence relies on an entry and exit photograph. There is no photograph of the vehicle without a ticket being displayed. Despite previously stating “the ANPR images is not evidence that a breach has occurred for example they do not confirm that the customer did not purchase a ticket” (see Defendant’s Bundle, REF), the Claimant now asserts (Claimant’s Bundle, Witness Statement Para # XX) that by virtue of the ANPR images and log of all parking tickets, no ticket was purchased for the Defendant’s vehicle. This is denied.

23. The Claimant provides a copy of a log of all parking tickets purchased on XXth January 2012 between XXXX and XXXX (See Claimants Bundle, REF) and states (Para #X) that “Nowhere in the log does the Defendant’s vehicle (or a registration resembling the Defendant’s Vehicle) appear. I draw attention to the first page (Page XX) of this log which shows that at 14.02, 2 minutes after the Defendant’s vehicle with the Vehicle Registration Number (VRN) ‘XXXX XXX’ entered the Car Park, a ticket was purchased for XXp using the VRN ‘XXX'. The Defendant contends that this system record does indeed closely resemble the Defendant’s VRN and indicates a payment was made for the vehicle in question on the material date in a clear attempt to comply with the terms and conditions of Car Park.

24. There is a well-known history of the parking ticket machines at Excel sites failing to record a VRN. The Defendant refers to Excel Parking v Mrs S. C8DP11F9 on 09/09/2016 at Oldham CC (Defendant’s Bundle, Evidence X). In this case the defendant purchased a ticket, but the machine was faulty and did not print her VRN correctly. The judge ruled in favour of the defendant on the balance of probabilities that she bought her ticket and entered the VRN correctly, only for the machine to erroneously mis-print it. The case was dismissed.

25. The data log provided by the Claimants shows that on the day in question, within less than three hours, three tickets were purchased where only a three letter VRN was recorded, two of which (including the ticket matching the Defendant’s VRN) were purchased from machine XX. The Defendant avers that it can be reasonably assumed that a ticket was purchased for the vehicle and puts the Claimant to strict proof that the machines were in full working order on the day in question.

26. The Defendant has called into question whether any contract could have existed with any driver at the material time and has demonstrated to the Court how the overall ‘prominence’ of signage is significantly reduced by using an illegible and confusing display not fully compliant with the Code of Practice. Further, it has been shown that the Claimant is attempting to hold the Defendant responsible for what was very probably a keypad or Pay and Display machine error not proved to be the driver’s fault.

COSTS

27. The original PCN (REF) posted by this Claimant states a Full Charge of £90.00 (£60.00 discounted) however the Claimant's legal firm now inflates these sums, in a deliberate attempt at triple recovery:
1. Principal debt £90
2. Initial legal costs £54.00
3. Interest £43.80
4. Solicitors fees £50.00
5. Court Fees £25
5. Outstanding balance to pay now £262.80

28. The Defendant puts the Claimant to strict proof that all costs were actually incurred.


SUMMARY

29. No lawful right exists to pursue unpaid parking charges from the Defendant as keeper of the vehicle, where an operator is unable to transfer the liability for the charge using the POFA, in this case because of the indisputable fact that the event pre-dated the law. Neither is there any reasonable presumption in law that the registered keeper of a vehicle is the driver. Finally, even if the identity of driver were known, the Claimant’s own evidence supports the assertion that on the balance of probability, a ticket was purchased for the vehicle albeit not showing the complete VRN due to what was very probably a keypad or Pay and Display machine error not proved to be the driver’s fault. This claim is founded upon a misrepresentation of facts and misrepresentation of the law.

30. It is noted that in view of all of the above, the Court could decide of its own volition to strike this claim out under CPR 16.4 and as an unrepresented Defendant I ask the presiding Judge to use their case management powers and relieve me of the burden of having to appear to defend myself as registered keeper, in view of the Claimant having supplied no evidence of any basis for a claim against me in law.

I believe that the facts stated in this Skeleton Defence are true.

Signed

Dated