AOS completed, defense required

Thanks you, that helps reduce the fears a little.

I did a google on POFA guidelines and this thread came up which seemed to provide some a few points which i didnt have so i have added them (regarding the disability law and being dyslexik

Do you think this will be enough? Is it better to add more points than less? I.e. Shall i trawel through and find and add as many points as possible or is better to be concise on a single point (driver or lettering)?



>>>>>>>>>>>>>>>>>>>>>>>>>>>
IN THE COUNTY COURT

CLAIM No:

BETWEEN:

Total Parking SolutionsLimited

-and-


________________________________________
DEFENCE
________________________________________
The Defendant is the registered keeper of the vehicle in question. The Claim relates to an alleged debt in damages arising from a driver's alleged breach of contract, when parking at car park on .

Any breach is denied, and it is further denied that there was any agreement to pay the Claimant's £128.30 'Parking Charge Notice ('PCN')'.
I was not the driver. I contend that I am not liable for this parking charge on the basis of the below points:

This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Total parking solutions have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

The notice must be given by —
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.”
The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states:
“The relevant period… is the period of 14 days beginning with the day after that on which the specified period of parking ended”
The NTK sent to myself as Registered Keeper arrived some 20 days after the alleged event. Even if they had posted it on the same day that they describe as the ‘Date Issued’ (which previous cases suggest Total Parking Solutions never do in any case at all because they use a third party batch-mail system, Whistl or iMail or similar, which adds up to a week before a letter is posted) it would be impossible for the notice to have been actually delivered and deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b). This means that Total Parking Solutions have failed to act in time for keeper liability to apply. Furthermore, it is clear that Total Parking Solutions know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.

The PCN also fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states:
“The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the
specified period of parking and describe those charges, the circumstances in which the requirement arose...and the other facts that made those charges payable...’’

This NTK stated that
‘’either’’ there was not appropriate parking time purchased “or” the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter, Total Parking Solutions revealed too late that they contend that ‘no parking was purchased’ on the date in question. This is an alleged ‘fact’ that the NTK failed to state in the first place.

Despite the wording of Total Parking Solutions’s appeal stating that it is me that has to pay the charge, this is a charge that could only be potentially enforced against a known driver due to the failure to comply with the Protection of Freedoms Act. There is no evidence of who that individual was - and that person was not me. Total Parking Solutions cannot therefore find me liable for the charge.

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a charge cannot be enforced against a keeper without a POFA-compliant NTK.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot –they will fail to show I can be liable because the driver was not me.

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-


Understanding keeper liability
‘There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. 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 of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, 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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.”

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v Total Parking Solutions in September 2016, where POPLA Assessor Carly Law found:

“I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.”

3) Total Parking Solutions has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence. I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £136.

I do not believe that the contract allows Total Parking Solutions to charge paying visitors £85 for a system error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.


Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“The written authorisation must also set out:
a) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined
b) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation
c) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement
d) Who has the responsibility for putting up and maintaining signs
e) The definition of the services provided by each party to the agreement.''

4) On this day there were issues with one or more of the parking machines.
The driver parked and upon trying to pay the charge, she had problems with the machine keypad not accepting the VRN. The system was complicated because drivers are expected to recall what time they arrived. Such systems have been criticised as unfair and not consumer-friendly. When the driver was unable to pay at that machine, she deemed that as the machines were networked together the whole system must have been malfunctioning.
There were no instructions either on the signage in the car park or the ticket machine as to what the driver should have done if the ticket machine was not accepting payment, and no alternative payment method was provided. Despite the driver attempting to pay the fee (as the driver has done on previous occasions in the same car park, in the same vehicle which Total Parking Solutions will have records of), this was not possible.
I assert that the onus is on Total Parking Solutions to provide evidence that every ticket machine in the car park was in working order at the time for the full duration of the vehicle’s presence in the car park.

5)The signs are not prominent, clear or legible from all parking spaces
The signs and the machine tariff board (and the small screen itself on the malfunctioning machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language,’ contrary to the Consumer Rights Act 2015:

68 Requirement for transparency
(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'Total Parking Solutions Ltd v Beavis' case where the terms were concise and far clearer. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park.
The assessor will note from the picture below that the full terms and conditions on the signage are in a tiny font size. The driver has a diagnosis of dyslexia, causing a ‘substantial and long-term adverse effect’ on the driver’s ability to read, and therefore constituting a disability under the Equality Act 2010. This learning disability affects up to 7% of the population.

I assert that Total Parking Solutions are in breach of the Equality Act 2010 by applying “a policy, criterion or practice in the same way to all individuals, but that policy has an effect that particularly disadvantages disabled people.” (The policy being the terms and conditions of the contract, and the practice the signs provided, which being in such small print would be difficult for a normally abled driver to be able to study, read and agree to, but significantly more difficult for somebody with significant dyslexia). This amounts to indirect discrimination under the Equality Act).
To allow such small print to involve part of the contract, Total Parking Solutions should have to show that this is objectively justified, and justification cannot be on the grounds of cost alone. I further assert that in order to comply with the Disability Discrimination Act (bearing in mind that due to the prevalence of dyslexia, it can reasonably be foreseen by Total Parking Solutions that drivers with dyslexia will use the car park), Total Parking Solutions should make the ‘small print’ terms and conditions in a legible font size. There can be no justification not to do this, as the minimal cost would be the only limiting factor.
In addition to the original PCN penalty, for which liability is denied, the Claimants have artificially inflated the value of the Claim by adding purported added 'costs' of £60 contractual costs pursuant to PCN Terms and conditions which the Defendant submits have not actually been incurred by the Claimant.

In the Particulars there is also a second add-on for purported 'legal representative costs of £50' on top of the vague £60, artificially hiking the sum to £203.30 This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)

According to Ladak v DRC Locums UKEAT/0488/13/LA the claimant can only recover the direct and provable costs of the time spent on preparing the claim in a legal capacity, not any administration cost.

The Particulars of Claim state the Claimants claim is for the sum of £100 being monies due from the Defendant to the claimant in respect of Parking Charge Notice. The Claimant has failed to provide evidence of who is liable and whether they are relying on the POFA. These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. 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.

Due to the sparseness 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 of the vehicle, entered into any contractual agreement with the Claimant, whether express, implied, or by conduct.

Further and in the alternative, it is denied that the claimant's signage sets out the terms in a sufficiently clear manner which would be capable of binding any reasonable person reading them. They merely state that vehicles must be parked within the allocated parking bay.


The terms on the Claimant's signage are also displayed in a font which is too small to be read from a passing vehicle, and is in such a position that anyone attempting to read the tiny font would be unable to do so easily particularly at night in a badly lit area It is, therefore, denied that the Claimant's signage is capable of creating a legally binding contract.

It can also be noted that the Claimant has failed to act on Notice 18 requesting further information with regard to the claim. The email was sent 14/10/18 (included in the defence).

The Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

The Protection of Freedoms Act 2012, Schedule 4, 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 an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

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 initiative, using its case management powers pursuant to CPR 3.4.

I believe the facts contained in this Defence are true.

Apologies, I thought i did say earlier in the thread:
Date of issue: 03/10/2018