Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • Potatini
    • By Potatini 12th Apr 18, 7:44 PM
    • 23Posts
    • 5Thanks
    Potatini
    SCS for parking with permit!
    • #1
    • 12th Apr 18, 7:44 PM
    SCS for parking with permit! 12th Apr 18 at 7:44 PM
    Hi Folks, first thing first - thank you for running this help section, who's being a life saver! This is my case. I hope you can help me through it and kick this "people" away for good!

    I received a total of 5 parking fines for being parked in the staff car park at the hospital where I work, despite I have a valid permit disc on the dash and daily scratched scratch card. Together with the parking permit disc, the staff parking area is accessible only by swiping a name badge, which I also own. I used the facilities within standard working hours, although my permit is valid for 24/7. Colleagues told me that they had the same issue and recommended to discard the notices, as "they'll stop writing" ... but I received a standard LBC from SCS Law instead! I've been naive, I know. At least I kept all the "ignored" threatening paperwork.

    The LBC (I can't attach a link) seemed to be complete with details of the fines and I think responds to the criteria given by the POFA. at least for what I can understand! I informed myself as much as I could, reading through similar cases on your forum, trying to understand what I could do to defend myself. I'm not very good in this, tho, but - I replied to their LBC as follows:

    Dear Sirs, I have received your Letter Before Claim dated 22 February 2018. As requested in your reply form, please receive a detailed reply hereby. I deny any debt to CP Plus Ltd. The driver is not identified in your letter and your client has failed to meet the requirements of The Protection of Freedoms Act, schedule 4 to pursue me as keeper.

    As the registered keeper of the vehicle I have not received a Notice to Keeper. As you can see, the law is unequivocal on this matter. A Notice to Keeper must be served where the driver has not been identified. Without this, the creditor does not have the right to recover the charge from the keeper of the vehicle. As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided, the Private Parking Operator has failed to comply with the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012. Paragraph 4 of The Act states that: (1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2)The right under this paragraph applies only if: (a) the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met. The condition specified in paragraph 6 is “that the creditor (or a person acting for or on behalf of the creditor): (a) has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8; or (b) has given a notice to keeper in accordance with paragraph 9." Paragraph 9 states this notice to keeper must be given within a "period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given" It would be unreasonable of CP Plus to rely on the assumption that the Registered Keeper was the driver (as in Elliot v Loake) which I would like to highlight was a criminal case with ample evidence against the driver.

    Your Letter Before Claim refers to "a number of letters" sent to me by your Client - however I am now informing you that I was not in receipt of these items of correspondence and was therefore unable to act upon them at the time. Please provide copies of all documentation and correspondence, along with proof of dates of postage. When these are supplied, please also confirm whether the intended action is founded on a contractual charge, a breach of a contract or trespass.

    Please confirm that your client's contract with the land-holder includes specific authority to take legal action and that this will be produced for the court. Whilst I await your timely response, I would also like to remind you of the guidance given to operators in POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. "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.'' I would like to remind both CP Plus and SCS Law that a PCN with the basic non-statutory wording that your client freely chooses to use, can only hold the driver liable. Therefore, please kindly show me your client's evidence of whom the driver was at each occurrence. When I receive the documents and your explanations I will be in a position to make a more detailed response.

    It would be unreasonable to proceed with litigation before you have clarified your client's cause of action.
    I've promptly received their reply, in which they said basically that they are claiming with me as a keeper, attaching their reasons and reiterate that if I don't pay £400, they'll take me to court with no further notice. However, there was no reply about who owns the land and what type of breech are they referring to, points that I'll surely reiterate in my next letter.

    Sadly, due to house moving and holidays, I missed the 14 days term to respond to their second letter I know another envelope from SCS has reached my previous address yesterday (maybe calling for court proceedings?) and this is now on my way. If it can be of any use, I could try to call again the hospital, who owns the parking grounds and ask for grace, but I doubt they'll intervene, as they previously stated they "can't do anything to help, once CP is in the way" (Is that true?) when I got in touch beforehand. In addition to that, I'm not employed by the hospital anymore, so I'll probably be ignored.

    I'll appeal to the all mighty forum, as this is going beyond my knowledge and all this reading is overwhelming! I'm writing my response, requesting once again proof of their the authority to take legal action and why am I receiving their correspondence, as the parking area can be accessed by an employee with a current swipe card only and there is a parking permit registered with the number plate of the "pirate car".

    Should I contest their affirmation that POPLA doesn't apply to my case and request a POPLA code? What else should I add? Can anyone help writing this letter in the most effective way, please? Thanks for your support!
    Last edited by Potatini; 15-04-2018 at 5:27 PM. Reason: Adjusting formatting
Page 3
    • nosferatu1001
    • By nosferatu1001 7th Aug 18, 12:37 PM
    • 4,114 Posts
    • 4,984 Thanks
    nosferatu1001
    Its not they dont care. You risk antagonising them, and telling them sonething they already know. No idea how you got "dont care" from that.

    You draft a DEFENCE that is as detailed as possible, of the legal arguments which is what goes in a defence. A WS tells the story and provides a place to ref evidence.

    So no, you are not right. You need to reaad NEWBIES THREAD, POST TWO yet again, bookmark it, and ensure that you understand
    Defence
    Witness Statement

    and the difference between them.

    If you dont want to reveal the driver, then you need to edit your post. This is a public forum, the PPCs DO READ THIS, dont argue this point. Its a fact.
    • Potatini
    • By Potatini 7th Aug 18, 7:21 PM
    • 23 Posts
    • 5 Thanks
    Potatini
    You need to reaad NEWBIES THREAD, POST TWO yet again
    Nosferatu, I did read very, very well through all the introductory forums, studied a large number of cases and tried hard to learn something doesn't belong to me, so please understand that I'm trying my best. Hence I'm here to humbly ask for someone to lend a kind hand.

    What I'm trying to do following the notes I received, is to reboot the previous defence, but I think I still need a few hints and tweaks here and there to improve it.
    -Point 1, 4, 5, 8, 10 are factual and I could re-package them in a list with no sub-point, if you think they'll keep their weight.
    -Point 2- Templates are bad, as Johnersh teaches, but how could I render the same concepts better?
    -Point 3- Which one is the best direction to take then? As said I am confused, as I was recently suggested to be straight given the permit situation, while all the threads I went through strongly recommend the opposite (I'm editing!) Please help me with this, as I really can't figure it out.
    -Point 6- I have a certificate to support this and could try get a small statement from my Doctor. I'm not sure it's relevant. Is it OK if left like this?
    -Point 7- lacking information in LBC. I have to say the correspondence was not highly incomplete, so I have to be careful. That's when your legal knowledge would help immensely!
    -Point 9- signage. As the car is parked with permit and in a restricted access, gated area, I'm not sure if this is completely relevant to my case. Any observations? Would you say it's worth referencing that parking without showing permit is not a breach of contract, but it's trespass and I'm surely not trespassing, as I'm authorised?
    -Point 11 and 12 have been removed, thanks for the hint.
    I assume I need to refer to more law in the letter. Any guidance on this?

    Thank you, I really do appreciate the help given.
    • Johnersh
    • By Johnersh 8th Aug 18, 12:27 AM
    • 1,183 Posts
    • 2,249 Thanks
    Johnersh
    Nothing wrong with templates, just use them wisely and don't be afraid to delete the nonsense or padding.

    Chances are if you're uncomfortable with something it's probably worth rephrasing. This ain't a dark art, but best to keep the DJs on side

    Here's a starter for 10 to help you get the idea. Remember it's your case, do do tweak and play with it until it's right.:

    1. The particulars of claim are poorly pleaded lacking specificity and numbered paragraphs such that the defendant cannot easily respond to them. The defendant reserves the right to file an amended defence in the event that the claimant repleading his case or seeks to advance a case which differs from the particulars as drafted.

    Breach of contract

    2. Insofar as the claimant's case is understood, the claimant seeks damages in relation to alleged breaches of a parking contract on the dates set out below.
    #
    #
    #

    3. The claimant has not set out any contractual terms in the particulars, such that the defendant can plead to them.

    4. The claimant does not state from whom he derives authority to bring proceedings in respect of land which he does not own. For the avoidance of doubt the claimant is put to proof that any contractual relationship exists between the defendant or the clsimant.

    5. If, which is denied, there was such a direct relationship betxeen claimant and defendant and on each of the dates specified, the claimant is put to proof that there was any breach of contract.

    6. The claimant is further put to proof that any loss or damage has been sustained and/or that damages by means of penalty terms or liquidated damages may be claimed in the sums sought or at all.

    Parking event(s)

    7. The defendant admits that he is permitted by his employer to park at [location]. The claimant is put to proof that the vehicle was parked on all the dates at the times specified in the particulars of claim.

    8. The defendants vehicle at all material times displayed a permit on the windscreen or dashboard. The claimant is put to strict proof that no permit was displayed.

    9. In the alternative, if, which is denied, no permit was displayed, it was not necessary to display a permit to establish that the defendants vehicle was authorised to be parked where it was.

    10. The defendant having supplied his vehicle details to his employer and having been issued with a key fob to access a secure parking area could not have been other than authorised. The use of a permit is a tool of convenience to the claimant company and not evidence of authority to park. The claimant could (and should) have undertaken a simple check with their client hospital before pursuing the parking charge and, in any event, issuing court proceedings which the defendant avers are wholly misconceived.
    "The best advice I ever got was that knowledge is power and to keep reading."
    DISCLAIMER: I post thoughts as & when they occur. I don't advise. You are your own person and decision-maker. I'm unlikely to respond to DMs seeking personal advice. It's ill-advised & you lose the benefit of a group "take" on events.
    • Potatini
    • By Potatini 8th Aug 18, 1:30 PM
    • 23 Posts
    • 5 Thanks
    Potatini
    Wow, your version is PRO. Thank you
    I'm nearly done rebooting the defence, I'll post it ASAP.
    Thanks again for the rephrasing, it is so much better and easier for me to work around.
    • nosferatu1001
    • By nosferatu1001 8th Aug 18, 3:12 PM
    • 4,114 Posts
    • 4,984 Thanks
    nosferatu1001
    Hopefullyu the difference between WS and defence is now clear! The above is a set of arguments, and admit deny clauses, giving why the defendant doesnt owe anything.

    A witness statement si where facts are given, and evidece to back up those statements of fact.
    • Potatini
    • By Potatini 8th Aug 18, 4:11 PM
    • 23 Posts
    • 5 Thanks
    Potatini
    Yes, I didn't initially get how brief a synthesis was I expected to provide. All clear now! Thanks, very appreciated indeed !!!128076;
    • nosferatu1001
    • By nosferatu1001 8th Aug 18, 5:14 PM
    • 4,114 Posts
    • 4,984 Thanks
    nosferatu1001
    It's not that, at all. Whole of course brevity is good, a defence isn't just about being brief. It's about arguing , not telling a story
    • Potatini
    • By Potatini 9th Aug 18, 5:03 PM
    • 23 Posts
    • 5 Thanks
    Potatini
    I think I'm getting there. I have my defence ready below. How does it sounds now?
    Do you think I have enough there to submit it?
    Some very legal sentences from nosferatu1001 were difficult for me to adapt to "my language", but hopefully they still make sense in the whole flow and the defence as a whole is solid enough.
    Any idea to make it stronger would be highly appreciated as usual.
    I aim in posting it out tomorrow morning. Thanks for your thoughts!

    I, the Defendant, deny liability for the entirety of the claim for the following reasons:
    1. The particulars of claim are poorly formulated, lacking specificity and numbered paragraphs such that the Defendant cannot easily respond to them.
    The Defendant reserves the right to file an amended defence in the event that the claimant reformulates his case or seeks to advance a case which differs from the particulars as drafted.

    Breach of contract

    2. The Claimant is seeking damages in relation to alleged breaches of a parking contract, occurred on XX DATES XX.

    3. The Claimant has not set out any contractual terms in the particulars, such that the defendant can plead to them.

    4. The Claimant does not state from whom he derives authority to bring proceedings in respect of land which he does not own. For the avoidance of doubt the claimant is put to proof that any contractual relationship exists between the defendant or the claimant.

    5. If, which is denied, there was such a direct relationship between claimant and defendant and on each of the dates specified, the claimant is put to proof that there was any breach of contract.

    6. The Claimant is requested to proof whether any loss or damage has been sustained and/or that damages by means of penalty terms or liquidated damages may be claimed in the sums sought or at all.

    Parking event(s)

    7. The Defendant admits that he was permitted by his employer to park at the staff car park at St. Peter's Hospital Trust at the times and dates specified in the particulars of claim, in virtue of a fully paid permit and access fob provided by the Trust.

    8. The Defendant could not have been other than authorised to use the staff car park at the location, as the vehicle's details were registered within the Trust's computerised system and the employer had issued a key fob to access a secure parking area.

    9. The Defendant's vehicle at all material times displayed a permit on the windscreen or dashboard. The claimant is put to strict proof that no permit was displayed.

    10. In the alternative, if, which is denied, no permit was displayed, it was not necessary to display a permit to establish that the Defendant's vehicle was authorised to be parked where it was. In fact, the use of a permit is a tool of convenience to the claimant company and not evidence of authority to park.
    The claimant could (and should) have undertaken a simple check with their client hospital before pursuing the parking charge and, in any event, issuing court proceedings which the defendant avers are wholly misconceived.

    Statement of Truth
    I confirm that the contents of this Statement of Defence are true to the best of my knowledge and belief.
    • KeithP
    • By KeithP 9th Aug 18, 5:19 PM
    • 11,195 Posts
    • 11,760 Thanks
    KeithP
    If the Date of Issue on your Claim Form is 11th July, and you have done the AoS in a timely manner, then you have until 4pm on Monday 13th August 2018 to file your Defence.


    When you are happy with the content, the Defence should be filed via email as described here:

    1) Print the Defence.
    2) Sign it and date it.
    3) Scan the signed document back in and save it as a pdf.
    4) Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
    5) Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
    6) Log into MCOL after a few days to see if the Claim is marked "defended". If not, you son should chase the CCBC until it is.
    7) Wait for the Directions Questionnaire and come back here.
    .
    • Potatini
    • By Potatini 10th Aug 18, 12:16 AM
    • 23 Posts
    • 5 Thanks
    Potatini
    Thank you so much Keith & Nosferatu.
    If it looks ok to you, then I'll know it's a good letter.
    I'll read it again in the morning, then off it goes.
    I admit I'm feeling a bit better, now that the first part is done...And blessed by your help!
    I'll be in touch with a follow up.
    Cheers all!
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

1,371Posts Today

7,261Users online

Martin's Twitter