Parking CCC Defence?

[HarryG]

Good afternoon,
I have received a county Court claim form which has been issued in relation to a parking fee incurred by one of my company vehicles (HGV tractor unit).
The basic story is that one of our drivers stopped on a private retail park so that he could go into the supermarket there to get supplies.
As owners of the vehicle we received the parking fee notice which we contested.
This has now escalated to the CC stage and I am looking to decide whether to defend this or not.
The particulars of claim are that our vehicle entered into a contract of conduct with the land owner which 'it is stated' was clearly displayed on suitable signs.
Our basis of defence to this would be that we, as a limited company, do not have a contract with the land owner for the following reasons:
1. We, as the vehicle owners, were not consulted as to whether we would or would not like to enter into such a contract.
2. Had we been consulted we would have declined.
3. The vehicle entered this private land without company knowledge and this was not part of the vehicles planned schedule.
4. Our employee was not authorised to enter into any contract on the company's behalf under any circumstances.
I would be interested to hear what everyone's thoughts are on this.

[ostell]

Unfortunately your company, as the keeper of the vehicle, can be held liable for the actions of the driver. But only if they comply with the requirements of schedule 4 of the Protection of Freedoms Act 2012: https://www.legislation.gov.uk/ukpga...dule/4/enacted

Your defence, unfortunately, would fail.

In these circumstances it would be mainly paragraph 9

Post up a redacted copy of the original PCN you received from the parking company

Has the claim been acknowledged using the details and password on the form? Nothing in the defence. If this is done just after 5 days from date of issue the you have 33 days from date of issue to respond to the court

edit: Just noticed you said the vehicle entered into a contract. Did they really say this? A vehicle can't agree to a contract

are they claiming against the keeper as the driver? Assuming the vehicle is in the company name then a body corporate cannot be a driver

[HarryG]

Thank you for your reply.
I have attached the particulars of claim.
I will get the original PCN and post tomorrow.
pic.jpg

[lawlearner1]

From what I understand, If you are willing to give them the name and address of the driver then they are responsible for the fine(you would need to inform them of the name and address of the driver within 28 days , starting the day after they gave you the notice) . If not then you as the owner of the vehicle are responsible. You may have not knowingly entered into a contract , but you gave the driver permission to drive your vehicle. However as its now going to county court im guessing this was not done.

My suggestions would be to go to court and argue that the driver is responsible ( depending on how much you value them as an employee) and that you were not made aware that you needed to notify them within 28 days ( if that's the case).

or if the location is close to you go and check that the area is clearly signposted , I know they claim it is but if you can show with photo evidence that it is not , then the case will likely fail.

[ostell]

Lawlearner, You have it wrong, they have until the start of court proceedings to name the driver and transfer liability. The court claim has started so that option is no longer there. There is no 28 day limit on naming the driver, despite what the parking companies say. It's all in POFA

OP as I said a body corporate cannot possibly be a driver therefore that section of the POC is rubbish.

Now if they have failed to comply with POFA then they are stuck, they cannot reasonably assume the company were the driver.

You must post up the Notice you received and also get photos of the signs just in case.

How did the driver know it was a zone where stopping is prohibited? Is it in the conditions of parking ?

If it is a No Parking sign then that is a prohibiting sign in that it is not offering a contract to park, no contract, no breach, no money due. The only claimant would be the landholder for trespass

[lawlearner1]

Not sure I quite understand

POFA 2012 states that if the creditor doesn't know the address and name of the driver they must ask the keeper

(i)to pay the unpaid parking charges; or

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

and



warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;


I know it might be to late for this course of action in this case but this is taken from section 8 POFA 2012

Im not trying to undermine what your saying, but please could you explain why they have till the start of court proceedings rather than 28 days to name the driver. Just trying to better understand is all

[ostell]

Try section 5 . Section 8 is for windscreen tickets, No windscreen ticket then Section 9 What you have quoted mentions nothing about a limit on identifying the driver, just when they can start claiming from the keeper

[HarryG]

Once again, thank you for your replies on this.
I have attached a copy of the original PCN.
This was replied to by one of our staff using an online form, so we have no record.
You may not be able to make it out but the times shown in the photographs have a total span of 39 seconds.
The drivers door is also open showing that he is with the vehicle.
Whilst we are not at all adverse to paying parking fees I do think that this particular case has been rather heavy handed hence the reason that it has not been paid.
From what you guys are saying however it would appear to me that we should probably pay this one and put it down to experience?

PCN.jpgPCN2.jpg

[ostell]

So can you get photos of the signs? There seems to be a sign there which may be "No Parking". There is probably no offer of a contract to park so if there is no contract there can be no breach. Parking charges are contractually agreed charges, they cannot issue penalties, which is what they appear to be claiming. The only claimant would be the landholder for trespass.

The PCN is incorrect.

There is no period of parking. They try to get out of it by giving an indeterminate single time. POFA 9 (2) (a).

The warning of keeper liability, 9 (2) (f), is incorrect as it does not give the required wording and hence an incorrect time period is implied

Because of the failures there can be no transfer of liability to the keeper. And the defendant, as a body corporate, could not have been driving.


start your defence. Expand on the below

admit the company are the keeper
State that as a body corporate the company cannot be the driver
State that the signs are forbidding and no contract is offered (depending on your photos)
The charge is therefore a penalty which is not allowed
The landholder, and not the claimant, should be the claimant and then only for trespass
Even if a contract with the driver was created they have not complied with POFA to hold the keeper liable



here's some text I have about prohibiting signs, though for permits, but you get the idea

The signage in the car park is of a “forbidding” nature. It is limited to cars displaying a valid permit only and therefore the terms cannot apply to cars without a permit because the signage does not offer an invitation to park on certain terms. The terms are forbidding. This means that there was never a contractual relationship. I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

[HarryG]

Thank you.
Very interesting.
This is a screenshot of the signage.
I will try and get a clear picture tomorrow.

sign.jpg

[ostell]

That's a prohibiting sign. To claim that a contract was created to do something that is expressly forbidden is perverse

I think you should be able to flesh out that defence to something acceptable

The only problem you have is that is a business to business claim and the hearing location will be chosen by the claimant

[HarryG]

I see.
I find the contractual side of this very interesting.

So to my (limited layman's) understanding:

If parking charges were quoted and these were ignored, it could be determined that there was a contract and that the contract had been broken.

The fact that there does not appear to be a list of parking charges only a 'no parking' sign would mean that there cannot be a contract.

The £100 quoted therefore constitutes a penalty which a private company is not legally empowered to issue.

I will get a better picture of the signage tomorrow to check the actual wording.

[HarryG]

D7A8F7FE-64D7-4C63-8DB5-1BB9B60FF0DD.jpeg46355BC7-D828-4E16-803D-00D7303BE29D.jpeg Photos of signs taken today.

3DB125AF-3487-4081-92D6-E05CFF32167E.jpeg

[ostell]

Still a forbidding sign. What contract are they offering? The charge is a penalty

[HarryG]

Draft defence.
I would very much value your thoughts.
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The Defendant defends the claim on the following grounds:

1. The Defendant is not liable.

The Defendant is the registered keep of vehicle *******.
The PCN is incorrect.
The Protection of Freedoms Act 2012 allows liability to be transferred from the driver to the keeper under certain criteria however the conditions listed in paragraph 9, section 2, subsections a and f have not been met:

There is no period of parking and gives an indeterminate single time. POFA 9 (2) (a).

The warning of keeper liability, 9 (2) (f), is incorrect as it does not give the required wording and hence an incorrect time period is implied.
As the Defendant is a corporate body it cannot be the driver.

1. No contract exists between the Defendant and the Claimant.

The signs displayed at ******************* are of a “forbidding” nature. No contract was offered because the signage does not offer an invitation to park on certain terms.
The terms are forbidding. This means that there was never a contractual relationship.
I refer you to the following case law: PCM-UK v Bull et all B4GF26K6 [2016], UKPC v Masterson B4GF26K6[2016], Horizon Parking v Mr J C5GF17X2 [2016] – In all three of these cases the signage was found to be forbidding and thus only a trespass had occurred and would be a matter for the landowner.

1. The charges made by the Claimants take the form of a Penalty.

As there was no offer of contract and the signage is forbidding, the charges claimed amount to a penalty which the Claimant is not authorised to issue.

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When I uploaded this it seems to have changed the numbering to all 1's and added some strange punctuation. Please ignore.