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I have assumed from your first post that you were not the driver.
Please ensure, if you use any of this draft that it is correct ... you are signing a statement of truth
Claim No:
In the County Court Centre Claim No.
Between
UK Car Park Management (Claimant)
and
Mr ………. (Defendant)
DEFENCE
Defendant’s liability as the driver of the vehicle
7. In the Particulars of Claim, the Claimant pursues the defendant as the driver, so it is fair to assume the Claimant has actual and/or constructive knowledge of the driver’s identity.
However, the Claimant has failed to produce any supporting evidence that demonstrates the Defendant was the driver of the vehicle when the alleged contravention(s) took place. It is the Defendant’s position that the Claimant’s allegations are nothing more than a fishing expedition and the Claimant has no knowledge of the driver.
8.Despite the requests the Claimant has failed to provide the necessary evidence or explanation to establish the Claimant’s authority to enforce the Parking Charge.
9. In the absence of the such evidence, it is the Defendant’s contention – and the court is invited to make an inference that – the Claimant has no lawful basis to pursue the Defendant as the driver of the vehicle.
Recovery of Claimant’s costs associated with the Parking Charge
1. The Defendant (as driver) denies that the Claimant is entitled to claim the recovery of any contractual costs in respect of the Parking Charge as he was not the driver. It is trite law that only the parties privy to a contract are bound by it
2. Further the Defendant will say that the signage terms do not refer to any contractual costs.
3. Further the Defendant notes the signage does refer to additional charges but avers this is contrary to the requirement of good faith as it causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on a driver pursuant to section 62 of the Consumer Rights Act 2015. The Defendant will rely on the following points:
1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that:
i. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
ii. the term refers to ‘charges’ but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.
4. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
5. In this claim unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))
Defendants liability as the registered keeper of the vehicle
1. It is denied that the Claimant is entitled recover the Parking Charge from the Defendant as registered keeper of the vehicle.
2.The Claimant has failed to comply with the conditions required by POFA 2012 to transfer liability for any unpaid charge from driver to registered keeper.
POFA 2012 sch4 (2) (a) requires the Notice to Keeper specify the period of parking to which the notice applies. The notice only states a time (viz 9.51 (sic)) and that is not a period, therefore the claimant cannot transfer liability to the keeper for any unpaid charges.
3.Further and alternatively, the Defendant contends that the Claimant has failed to comply with the mandatory conditions under POFA 2012 in order for the registered keeper to be held liable for the Parking Charge:
1. Contrary to condition 5(1)(a) of POFA 2012, the Claimant failed to provide evidence that it has the right to enforce against the driver of the vehicle the requirement to pay the Parking Charge. The Claimant has failed to supply:
i. a copy of the written contract setting out the Claimant’s authority to enforce and/or pursue the Parking Charge against the driver; and
ii. what (if any) conditions may be attached as regards the recovery of the Parking Charge.
3. Contrary to condition 5(1)(b), the Claimant implies knowledge of the identity of the driver prior to the commencement of these proceedings. In the particulars of claim, the Claimant represents that the Defendant as liable for the charge as the driver of the vehicle. In light of that allegation, it is implied that the Claimant has actual knowledge of the driver’s identity and so the Defendant cannot be held liable for the Parking Charge as the registered keeper, and the Claimant must pursue the driver of the vehicle only. The Defendant will seek to rely on paragraph 221 of the POFA 2012 Explanatory Notes, which states that:
" The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity (emphasis added)
Recovery of Claimant’s costs associated with the Parking Charge
1. To the extent that the Claimant seeks to recover the costs incurred in pursuing the Parking Charge, the Defendant denies that such sums are recoverable for the following reasons:
1. The costs sought by the Claimant are based upon a contractual right under the terms of the parking contract. It is well established under the doctrine of privity that a person who is not party to the contract cannot sue or be sued. Any contractual relationship in respect of the parking and the alleged contravention was solely between the Claimant and the driver of the vehicle, not the registered keeper; and
2. the Notice to keeper did not state the period of parking as mandated by Pofa 2012 schedule 4 para 9 (2) (a) and so liability for any unpaid charges cannot be transferred from the driver to the registered keeper
3. paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were £100.
2. It follows that any liability owed by the Keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.
CONCLUSION
1. By reason of the Defendant’s non-compliance with the POFA requirements as set out in this Defence, the Claimant is not entitled to pursue the Defendant as either the registered keeper or the driver of the vehicle for the Parking Charge.
STATEMENT OF TRUTH
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
Please ensure, if you use any of this draft that it is correct ... you are signing a statement of truth
Claim No:
In the County Court Centre Claim No.
Between
UK Car Park Management (Claimant)
and
Mr ………. (Defendant)
DEFENCE
- The Defendant received the claim No: from UK Car Park Management on
- Each and every allegation in the Claimant's statement of case is denied unless specifically admitted in this Defence 3. The defendant avers the Claimant's statement of case firstly fails to give adequate information to enable the Defendant to properly assess the Defendant's position with regards to the claim and secondly has failed to properly plead its case in accordance with CPR16.4(1)(a)
- 4. the Particulars of Claim alleges that the Defendant is liable as the Driver/keeper
of the vehicle but fails to provide any reasons on which the Claimant relies upon to prove such liabilities
5. The defendant denies being the driver of the vehicle reg .no. at the time of the alleged incident.
6. The defendant admits being the Registered keeper of the vehicle reg no. at the time of the alleged incident
Defendant’s liability as the driver of the vehicle
7. In the Particulars of Claim, the Claimant pursues the defendant as the driver, so it is fair to assume the Claimant has actual and/or constructive knowledge of the driver’s identity.
However, the Claimant has failed to produce any supporting evidence that demonstrates the Defendant was the driver of the vehicle when the alleged contravention(s) took place. It is the Defendant’s position that the Claimant’s allegations are nothing more than a fishing expedition and the Claimant has no knowledge of the driver.
8.Despite the requests the Claimant has failed to provide the necessary evidence or explanation to establish the Claimant’s authority to enforce the Parking Charge.
9. In the absence of the such evidence, it is the Defendant’s contention – and the court is invited to make an inference that – the Claimant has no lawful basis to pursue the Defendant as the driver of the vehicle.
Recovery of Claimant’s costs associated with the Parking Charge
1. The Defendant (as driver) denies that the Claimant is entitled to claim the recovery of any contractual costs in respect of the Parking Charge as he was not the driver. It is trite law that only the parties privy to a contract are bound by it
2. Further the Defendant will say that the signage terms do not refer to any contractual costs.
3. Further the Defendant notes the signage does refer to additional charges but avers this is contrary to the requirement of good faith as it causes a significant imbalance under the contract to the detriment of the Defendant. Consequently, the term is unfair and is not binding on a driver pursuant to section 62 of the Consumer Rights Act 2015. The Defendant will rely on the following points:
1. Section 68 of the CRA requires that every term of a consumer contract must be transparent and expressed in a plain and intelligible language. The Defendant contends that the term referring to the charges on the signage was neither transparent nor intelligible in that:
i. the font size of the term is extremely small making it illegible from a reasonable distance; the term ought to have been presented in a manner which was far more legible considering the amount of blank space available on the sign itself; and
ii. the term refers to ‘charges’ but fails to explain what charges the Claimant is seeking to recover. Accordingly, the term described is vague and ambiguous contrary to the guidance published by the Competition and Markets Authority on unfair contract terms.
4. In Parking Eye vs Beavis ([2015] UKSC 67. Case ID. UKSC 2015/0116. The S C found the parking charge (£85) was a genuine estimate of the costs of operating the parking scheme including losses suffered by the operator if its terms and conditions were not complied with (see paras 188 and 193 of the judgment).
5. In this claim unspecified costs additional to the parking charge may involve an element of double recovery and is an abuse of process that may taint the entirety of the claim and permit the Court to strike out the claim (CPR3 4 (2) (b))
Defendants liability as the registered keeper of the vehicle
1. It is denied that the Claimant is entitled recover the Parking Charge from the Defendant as registered keeper of the vehicle.
2.The Claimant has failed to comply with the conditions required by POFA 2012 to transfer liability for any unpaid charge from driver to registered keeper.
POFA 2012 sch4 (2) (a) requires the Notice to Keeper specify the period of parking to which the notice applies. The notice only states a time (viz 9.51 (sic)) and that is not a period, therefore the claimant cannot transfer liability to the keeper for any unpaid charges.
3.Further and alternatively, the Defendant contends that the Claimant has failed to comply with the mandatory conditions under POFA 2012 in order for the registered keeper to be held liable for the Parking Charge:
1. Contrary to condition 5(1)(a) of POFA 2012, the Claimant failed to provide evidence that it has the right to enforce against the driver of the vehicle the requirement to pay the Parking Charge. The Claimant has failed to supply:
i. a copy of the written contract setting out the Claimant’s authority to enforce and/or pursue the Parking Charge against the driver; and
ii. what (if any) conditions may be attached as regards the recovery of the Parking Charge.
3. Contrary to condition 5(1)(b), the Claimant implies knowledge of the identity of the driver prior to the commencement of these proceedings. In the particulars of claim, the Claimant represents that the Defendant as liable for the charge as the driver of the vehicle. In light of that allegation, it is implied that the Claimant has actual knowledge of the driver’s identity and so the Defendant cannot be held liable for the Parking Charge as the registered keeper, and the Claimant must pursue the driver of the vehicle only. The Defendant will seek to rely on paragraph 221 of the POFA 2012 Explanatory Notes, which states that:
" The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity (emphasis added)
Recovery of Claimant’s costs associated with the Parking Charge
1. To the extent that the Claimant seeks to recover the costs incurred in pursuing the Parking Charge, the Defendant denies that such sums are recoverable for the following reasons:
1. The costs sought by the Claimant are based upon a contractual right under the terms of the parking contract. It is well established under the doctrine of privity that a person who is not party to the contract cannot sue or be sued. Any contractual relationship in respect of the parking and the alleged contravention was solely between the Claimant and the driver of the vehicle, not the registered keeper; and
2. the Notice to keeper did not state the period of parking as mandated by Pofa 2012 schedule 4 para 9 (2) (a) and so liability for any unpaid charges cannot be transferred from the driver to the registered keeper
3. paragraph 4(5) of POFA provides that the maximum amount which may be recovered from the registered keeper is the total amount of the unpaid parking charges specified in the notice to the registered keeper. The unpaid parking charges specified in the notice were £100.
2. It follows that any liability owed by the Keeper to the Claimant is several to the driver’s liability and is limited to an amount that does not exceed the unpaid parking charges. The Claimant’s pursuit of these contractual costs is not recoverable and amounts to an abuse of process.
CONCLUSION
1. By reason of the Defendant’s non-compliance with the POFA requirements as set out in this Defence, the Claimant is not entitled to pursue the Defendant as either the registered keeper or the driver of the vehicle for the Parking Charge.
STATEMENT OF TRUTH
I believe that the facts stated in this defence are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.
) but send with covering letter.
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