** Discontinued ** Help with defence against parking ticket

[Madmax3]

Hi all

New here, I’m looking for some help in writing a defence with my partner as BW legal are trying to take her to court.

The details are, the alleged offence happend back in 2016, neither the original pcn or the follow up letter was received by my partner. The first contact received was from debt collectors, after enquiring what the debt was for and asking for copies of original letters that were not received, it appears that my partner was not the driver on the day the alleged offence took place. She wrote back stating that, and got a reply saying as it was now past the 28 days she was unable to appeal, she wrote to both Britannia parking and debt recovery plus stating that not only was she not the driver on the day but according to the date of the original pcn it was sent on the 14th day after the original offence therefore would not have been delivered within the deadline for keeper liability. Britannia didn’t reply and stated all comments must go to debt recovery plus, and debt recovery plus ignored the letter and sent further communication stating as she hadn’t made contacted the mater would be passed to legal.

After that it all went quiet until Dec 18 when a letter was received from BW legal (letter before claim) she replied to that restating that she was neither the driver nor had keeper liability as they had failed to comply with section 4 9(5) of POFA. She got a response saying it had been noted then a few weeks later received a court claim. She has registered the Acknowledgement of service but now needs to write her defence any help would be appreciated.

[ostell]

So find a similar defence on here or pepipoo private parking forums. Modify to suit your situation of not the driver and failure to deliver in the relevant period, Pofa 9(4), and any other POFA failures on th NTK

Post on here for critique before sending

[Madmax3]

Thanks Ostell, she has written to BW Legal requesting all the documents they intend to rely on in court, requesting delivery within 7 days, if they don’t comply what is her next move ?

[ostell]

An embarrassed defence as you don't truly know the fine detail of what it is about and why they are claiming.

[claireP]

would like to follow you in this situation who knows, in future i may face same issues...
https://www.ten2two.org/location/kent-and-bromley/

[Madmax3]

Sorry Ostell, I should of been clearer, I guess they are obliged to divulge the requested information? If they don’t or make it tricky what does she do, what is the official route to go down, form to fill in, court to be informed ect ?

[ostell]

They are obliged but they may not even have it. And even then they may find some excuse not to send what little they have.

Have you sent a SAR to Brittania? They are obliged to reply within 30 days and though it may be too late for your defence it will come in handy later.

[Madmax3]

Yes sent SAR to Britannia requesting the following.

Specifically, I would like

• All data held

• A list of all PCN’s you consider are outstanding against me

• All evidence which you intend to use against me including a copy of the contract with the landowner under which you assert authority to bring a claim against me, a copy of the alleged contract with the driver and considerations to the provisions of Schedule 4 of POFA 2012

• All letters sent and received including your correspondence with the DVLA to obtain my personal details

• Evidence you have paid a debt collector

• Parking meter (PDT) records covering the relating period, 28^th September 2016

[ostell]

You can only request details about you.

[Madmax3]

Yes which they said when they replied, they sent a print out showing the one line from the parking meter records that related to the vehicle in question showing the payment that was made.
The original pcn and the reminder letter and some sort of computer request to the dvla for the keeper details.
They DIDN’T include the email correspondence where the driver had informed them that she wasn’t the driver.

[Madmax3]

Thank you Ostell for your continued help.

[Madmax3]

Having gone through the original pcn we believe there are the following POFA failings, 9 2(f,g), 9 (4,5,6). Will write a defence based on those and that the keeper was not the driver.

As I understand it if they want to claim against the keeper as the driver, the burden of proof as to who was driving lays with them is that correct ?

[ostell]

Yes, they have to identify the driver. To circumvent any attempt at that then get evidence that you were elsewhere at the time. A witness statement from someone who was with you would suffice.

[Madmax3]

Include that as an attachment to the defence ?

[Madmax3]

My defense:

Statement of Defense


7/03/2019


It is admitted that Defendant is the registered keeper of the vehicle in question.
However the Claimant has no cause of action against the Defendant on the following grounds:-

1. The Defendant was not the driver of the vehicle on the date in question.


2. 1. The Protection of Freedom Act 2012 Schedule 4 has not been complied with.

a) Notwithstanding that the Claimant claims no right to pursue the Defendant as the registered keeper under PoFA, the Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver.

b) The keeper can only be held liable if the Claimant has fully complied with the strict requirements including 'adequate notice' of £100 charge and prescribed Notice to Keeper letters in time and with mandatory wording.

c) The claimant has no right to assert that the defendant is liable based on ‘reasonable assumption’. PATAS and POPLA Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, "There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and operators should never suggest anything of the sort"(2015).


3. This case can be distinguished from ParkingEye v Beavis [2015] UKSC 67 (the Beavis case) which 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 and 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 applies in this material case.


4. The signage on and around the site did not meet the British Parking Association (BPA) Code of Practice. The claimant is a member of the BPA, whose requirements they did not follow. Therefore no contract has been formed with driver to pay £100, or any additional fee charged if unpaid in 28 days.

The signage is inadequate in terms of the following:

• Lack of clarity and prominence of terms and conditions
• Illegible text due to font size, density, colour and complexity


5. Photographs of the keeper’s vehicle entering and exiting the car park does not constitute a proven contravention of the parking conditions. No ticket was placed on the vehicle and the Claimant has failed to provide any evidence that a valid ticket was not on display.


6. It is denied that the Claimant has authority to bring this claim. The proper Claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Britannia Parking Ltd.

a) Britannia Parking Ltd is not the lawful occupier of the land

b) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no locus standi to bring this case.


7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-

a) The Claimant has no commercial justification
b) The Claimant did not follow the BPA Code of Practice
c) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
d) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.
e) The Court of Appeal for the Beavis case made a clear reference to the fact that their decision was NOT relevant to pay-per-hour type car parks.

8. The Protection of Freedoms Act does not permit the Claimant to recover a sum greater than the parking charge on the day before a Notice to Keeper was issued. The Claimant cannot recover additional charges. The Claimant claims a sum of £177.34 as the ‘amount claimed’’ (for which liability is denied) plus the Particulars of Claim include £60 that the claimant has presented as contractual costs pursuant to PCN terms and conditions, in addition there is a further £25 Court fees and £50 Legal representative's costs. In contradiction to this the claimant's solicitor has, however, described the Principal Debt and initial legal costs as £160 and with a further £92.34 being made up of estimated interest, court fees and solicitor's costs. The Defendant also has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as "Legal representative's costs". These cannot be recovered in the Small Claims Court regardless of the identity of the driver.


9. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant, and as the Supreme Court in the Beavis case confirmed, such a matter would be limited to the landowner themselves claiming for a nominal sum.


10. Save as expressly mentioned above, the Particulars of Claim is denied in its entirety. It is denied that the Claimant is entitled to the relief claimed or any relief at all.

Therefore I ask the court to respectfully strike out this claim with immediate effect.
I believe that the facts stated in this Statement of defence, (date I intend to send) are true."


Signed