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  • FIRST POST
    • Martin101
    • By Martin101 7th Dec 17, 8:42 PM
    • 10Posts
    • 3Thanks
    Martin101
    County Court Claim Form - help
    • #1
    • 7th Dec 17, 8:42 PM
    County Court Claim Form - help 7th Dec 17 at 8:42 PM
    I have just received my Claim Form and have been on line (using the advice on the various threads ) to register

    Quick recap of my case

    The driver park in an office car park next to a cinema at 8.30pm - the driver had used the car park (as an over flow car park) a number of times, it was November 2016 so very dark and signs were present the driver could not see any the signage - when the keeper received the original Claim the keeperwent back to check if there were signs and there were - it is not know whether there were present originally.

    The driver parked in the 18.11 and the keeper received the notice on the 8.12 (dated 6th) so 20days after the incident - The keeper wrote and told them they were outside the 15 days period (schedule 4 of the POFA act 2012) . They rejected the !!!8216;appeal!!!8217; based on
    - photographic evidence of no permit (the picture is so dark there is no way on the version the keeper received you could confirm this to be the case)
    - there are multiple signs stating valid permit etc (the keeper attended the site after dark and could only read the signs by using the light on his phone)
    It was interesting that their reply did not relate to the reason the keeper stated made the claim in valid.

    The keeper then sent a further letter restating the original reason and stating the keeper would not be using the IAS process due to it beeping a waste of time (using the wording others have shared on this forum.

    Lots of letter later and here we are:

    So the keeper need your advice, I feel the keepers main arguementst are the lateness of the original notification and unlit signage - do you agree and could you suggest any other defences. Also could you give me some pointer to what should be submitted

    Help please

    Martin (the keeper
    Last edited by Martin101; 08-12-2017 at 6:31 PM.
Page 1
    • Redx
    • By Redx 7th Dec 17, 8:45 PM
    • 18,115 Posts
    • 22,903 Thanks
    Redx
    • #2
    • 7th Dec 17, 8:45 PM
    • #2
    • 7th Dec 17, 8:45 PM
    have you told them who was driving on the day ?

    if not , edit the last post into THE DRIVER and THE KEEPER

    you cannot invoke POFA2012 if they are targeting the driver due to blabbing

    and then read post #2 of the NEWBIES FAQ sticky thread near the top of this forum, it tells you all about MCOL
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Martin101
    • By Martin101 7th Dec 17, 8:59 PM
    • 10 Posts
    • 3 Thanks
    Martin101
    • #3
    • 7th Dec 17, 8:59 PM
    • #3
    • 7th Dec 17, 8:59 PM
    I have never confirmed the driver, so officially I am the keeper.
    • Ryandavis1959
    • By Ryandavis1959 7th Dec 17, 9:07 PM
    • 211 Posts
    • 53 Thanks
    Ryandavis1959
    • #4
    • 7th Dec 17, 9:07 PM
    • #4
    • 7th Dec 17, 9:07 PM
    Now that you have confirmed on here that you were driving, If it goes to a court hearing and the Judge asks you if you were driving, how do you propose to respond?

    I suggest you focus on the bad signage rather than anything that could lead to discrediting yourself in court. If the signs couldn!!!8217;t be seen then gather your evidence and use this as your defence.

    I don!!!8217;t understand why this forum does not advocate the use of IAS. What will a judge infer when you have refused to use ADR, which is against the spirit of the new PAP? Makes absolutely no sense to me and could lead to judges slapping unreasonable costs orders against people.
    • Redx
    • By Redx 7th Dec 17, 9:07 PM
    • 18,115 Posts
    • 22,903 Thanks
    Redx
    • #5
    • 7th Dec 17, 9:07 PM
    • #5
    • 7th Dec 17, 9:07 PM
    I have never confirmed the driver, so officially I am the keeper.
    Originally posted by Martin101
    you need to edit post #1 again then , there is still too much info on who the driver was

    THE DRIVER parked blah blah , THE DRIVER did not see the signage blah blah ... etc

    anything that happened on the incident date happened to THE DRIVER

    anything since that date happened to THE KEEPER

    parking companies read public forums like this one and even the morons who work for them can take screenshots

    which PPC was it ?
    Last edited by Redx; 07-12-2017 at 9:17 PM.
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • Martin101
    • By Martin101 8th Dec 17, 6:34 PM
    • 10 Posts
    • 3 Thanks
    Martin101
    • #6
    • 8th Dec 17, 6:34 PM
    • #6
    • 8th Dec 17, 6:34 PM
    Could I suggest given the time that has past (13 months) that my memory about who actually date of the incident cannot be recollected clearly?

    Which is not a mistruth, this is the car park next to the cinema and we regularly attend with my wife and friend and although we usually use my car I don!!!8217;t always drive and on this ovcassion I am assuming it was me rather than it was definately me?
    Last edited by Martin101; 08-12-2017 at 6:43 PM.
    • KeithP
    • By KeithP 8th Dec 17, 6:36 PM
    • 7,209 Posts
    • 6,710 Thanks
    KeithP
    • #7
    • 8th Dec 17, 6:36 PM
    • #7
    • 8th Dec 17, 6:36 PM
    Could I suggest given the time that has past (13 months) that my memory about who actually date of the incident cannot be recollected clearly?
    Originally posted by Martin101
    Yes of course.
    .
    • Coupon-mad
    • By Coupon-mad 9th Dec 17, 12:56 PM
    • 57,473 Posts
    • 71,054 Thanks
    Coupon-mad
    • #8
    • 9th Dec 17, 12:56 PM
    • #8
    • 9th Dec 17, 12:56 PM
    I don!!!8217;t understand why this forum does not advocate the use of IAS.
    Originally posted by Ryandavis1959
    I don't understand why you continue to post telling people to name the driver and to 'use' the IAS, both of which will undoubtedly put MSE posters in a worse position. This is unfair on newbies who take all advice at face value.

    The regulars here have often stated in the clearest terms, we find your suggestions to be wrong and unhelpful, and we all utterly disagree with you. No-one should be told to name the driver, nor get sent up the blind alley of IAS.

    Posters here might be forgiven for thinking you are posting from a parking firm, especially as some of us recall you knowing about a non-publicised DPA case Barry Beavis assisted with, and another case involving the Parking Prankster.

    I cannot imagine for a minute, thinking working for parking firm is a good thing. My kids would be disowned if they tried!

    If there are parking firms spending time coming here to post 'alternative advice' then it just goes to show how successful this forum is, due to the hard work of all the regulars. I don't expect any PPC likes the 99% win rate at POPLA and court.
    Last edited by Coupon-mad; 09-12-2017 at 1:16 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Umkomaas
    • By Umkomaas 9th Dec 17, 1:06 PM
    • 17,579 Posts
    • 27,800 Thanks
    Umkomaas
    • #9
    • 9th Dec 17, 1:06 PM
    • #9
    • 9th Dec 17, 1:06 PM
    We don!!!8217;t even know who the PPC is.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    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.
    • Martin101
    • By Martin101 10th Dec 17, 11:03 AM
    • 10 Posts
    • 3 Thanks
    Martin101
    Parking company was ES parking enforcement Andy the solicitors are Gladstones
    • Quentin
    • By Quentin 10th Dec 17, 11:49 AM
    • 35,602 Posts
    • 19,818 Thanks
    Quentin
    Martin01 - do take notice of the post by CM (#8) in answer to the poor advice given you in #4 (which you look to have taken as "useful" by thanking the poster - somehow all the regulars missed that post when it was made on 7/12/17 - as it would have been soundly rejected as "advice" to follow!!)
    • Martin101
    • By Martin101 12th Dec 17, 5:17 PM
    • 10 Posts
    • 3 Thanks
    Martin101
    My Defence - first cut
    So here is my first go at my defence - I have gone on a number of angles - keeper v driver, quality of evidence in original notice to keeper (will I need to submit a copy of this with my letter?, lateness and the original nice outside the 15 days, amount of the charge (not sure if I should leave this as it could imply I acknowledge the value of the charge matters

    In the County Court Business Centre
    Claim No:

    Between ES Parking Enforcement v

    DEFENCE

    Preliminary

    1. The Particulars of Claim lack specificity. The Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

    2. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.

    Background

    3. It is admitted that at all material times the Defendant is the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle is insured with [provider] with a number of named drivers permitted to use it.

    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]

    5. It is denied that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

    5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")

    5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:

    5.2.1. there was a ‘relevant obligation’ either by way of a breach of contract, trespass or other tort; and
    5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper.
    It is not admitted that the Claimant has complied with the relevant statutory requirements.

    5.3. To the extent that the Claimant may seek to allege that any such presumption exist, the Defendant expressly denies that there is any presumption in law (whether in statute or otherwise) that the keeper is the driver. Further, the Defendant denies that the vehicle keeper is obliged to name the driver to a private parking firm. Had this been the intention of parliament, they would have made such requirements part of POFA, which makes no such provision. In the alternative, an amendment could have been made to s.172 of the Road Traffic Act 1988. The 1988 Act continues to oblige the identification of drivers only in strictly limited circumstances, where a criminal offence has been committed. Those provisions do not apply to this matter.


    Notice to Keeper

    6. The Notice to Keeper under Schedule 4 of the POFA Act 2012 requires that the notice arrive with the Keeper before 15 days following the alleged parking incident. In this case the notice arrived 20 days after the incident, the incident was on 18.11.16, the letter arrived on 8.12.16 - 20 days later. Therefore the notice and any further action are invalid.

    Photographic Evidence

    7. I also point out to the presiding judge that the claimant has not supplied any evidence at all that the alleged contravention ever occurred. The only photograph produced, or indeed ever seen by me, on the original Parking Charge Notice, shows only a very dark almost black car therefore there is no evidence to prove whether a current or valid permit was present.

    Signage

    8. The signage was inadequate to form a contract with the motorist because it is illegible due to very poor lighting within the area, making it almost impossible to see the actual sign, let alone read its content. Part E, Schedule 1 of the Code of Practice of the Independent Parking Committee (of which ES is a member), clearly states that “Text should be of such a size and in a font that can be easily read by a motorist having regard to the likely position of the motorist in relation to the sign.” As can be seen from the attached photographic evidence (ex A) this is not the case.

    Charges

    9. I assert that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
    “Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”

    10. I submit that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.

    11. The Claimant has at no time provided an explanation how the sums in the various letters received to date have been calculated, amount claimed in date order of letters received are £100 to £125 to £185 to £221 to £160 to £216.34. No evidence of how this extra charge has been calculated has been provided. No figure for additional charges was agreed nor could it have formed part of any ‘alleged’ contract because no such indemnity costs were quantified on the signs Terms and therefore cannot be bolted on later with figures plucked out of thin air

    12. The driver did not enter into any agreement. No consideration flowed between the two parties and no contract was established.

    13. The Protection of Freedom Act Para 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper.

    In Summary

    14. The Defendant denies the claim in its entirety voiding any liability to the claimant for all amounts due to the aforementioned reasons. It is submitted that the conduct of the Claimant is wholly unreasonable and Vexatious

    15. The facts and information in the defence are true and the Defendant is not liable for the sum claimed, nor any sum at all. The defendant, therefore, asks that the court orders the case to be struck out for want of a detailed course of action and/or for the claim as having no prospect of success.

    16. I confirm that the above facts and statements are true to the best of my knowledge and recollection.


    Any advice would be welcomed?
    • Coupon-mad
    • By Coupon-mad 12th Dec 17, 8:01 PM
    • 57,473 Posts
    • 71,054 Thanks
    Coupon-mad
    4. It is admitted that on [date] the Defendant's vehicle was parked at [location]
    Why admit that, seeing as later you say there is no evidence and it was dark? I feel that might be best not admitted, as that lets them off evidencing where the car was.


    Independent Parking Committee
    Wrong company name...


    As can be seen from the attached photographic evidence (ex A) this is not the case.
    No attachments, no evidence, no photos at defence stage! That comes later at WS stage.


    In #6, add to and edit it, because the PCN is not 'invalid', just not actionable against a keeper:
    Therefore the notice is not one that is capable under the applicable law, of holding a registered keeper liable, and as such, this Claimant has demonstrated no cause of action, and cannot rely upon any lawful liability for any charge against the Defendant registered keeper. and any further action are invalid.


    And very important - COMPLETELY remove this which has no legs, since PE v Beavis 2015 (read that judgment, you need to):
    9. I assert that the Claimant has also ignored the Government’s official position on parking charges as expressed clearly in the Department for Transport Guidance on the Recovery of Parking Charges:
    “Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.”

    10. I submit that the amount demanded cannot possibly be a genuine pre-estimate of the Claimant’s loss.
    Last edited by Coupon-mad; 12-12-2017 at 8:07 PM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • Martin101
    • By Martin101 13th Dec 17, 7:27 AM
    • 10 Posts
    • 3 Thanks
    Martin101
    Amazingly helpful, many thanks
    • Martin101
    • By Martin101 3rd May 18, 9:23 AM
    • 10 Posts
    • 3 Thanks
    Martin101
    I am now listed for court and have used in my defence statement - not yet my witness statement - an issue with the photographic evidence - i.e. i.e. that the picture is very dark could actually have been taken anywhere and shows a dark car in a car park - too dark to make out the car (no reg plate in the photo) and too dark to evidence whether a valid permit was present or not - is this line worth perusing?
    Linked to the same point - although i don't have photos on the evening there was no lighting in the area parked and therefore if signage was in situ it could not be seen or is see read? Any advance welcomed
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