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#Post#: 35566--------------------------------------------------
New court claim issued - 28th Aug
DIR By: cm790
Date: September 4, 2024, 2:43 am
---------------------------------------------------------
Good morning everyone, long time Pepipoo user and I had a long
thread running on there about my PCN. I've been advised to join
this forum so thank you in advance, I appreciate your support
and time to read this.
I've had a long running PCN which I've ignored since the
original appeal. However, I've now had a court claim through the
post, dated 28th Aug.
Back in 2020 I complained to POPLA and the assessor upheld the
complaint.
I complained to POPLA's complaints team about the assessor on
this basis:
--- Quote ---
> This appeal must be allowed because the operator Euro Car
Parks failed to deliver a notice to hirer that was fully
compliant with the requirements of paragraph 14 of Schedule 4 of
the Protection of Freedoms Act (PoFA) 2012, which is relevant to
the hirer and operator. The assessor appears to be mistakenly
using POFA 13 for the operator/hirer relationship. The operator
has not shown that the individual it is pursuing is the driver
of the vehicle and potentially liable for the charge. I have
referred to the right to not name the name and keeper liability.
A notice to hirer was sent to the appellant on 11/06/2020, this
was after a PCN was issued to the hire company on 27/05/2020.
The operator has failed to provide evidence which shows that the
appellant had signed a statement of liability when he hired the
vehicle and that this was sent along with the PCN. The assessor
has completely ignored the requirement to supply the hire
agreement and notice to keeper with the notice to hirer.
>
> The assessor has used the phrase “registered hirer” in their
response, I would ask what meaning does this have in the context
of this case as it is not clear as to what he means. The
registered hirer could not possibly be the registered keeper as
this role is taken by the hire company, more clarity is needed
by the assessor and I would hasten to say more training. I feel
that the lead assessor in this matter has erred in the
interpretation of law, it must be reviewed and the decision
amended to one of an upholding of the appeal.
--- End Quote ---
I then received this response from the complaint's team:
--- Quote ---
> I note within your grounds of appeal you stated:
>
> “1) The Operator failed to deliver a Notice to Hirer that was
fully compliant with the requirements of Schedule 4 of the
Protection of Freedoms Act 2012 (“POFA”).”
>
> You raised concerns about hirer liability. As you have not
identified as the driver, the operator can only seek to hold you
responsible for the PCN under hirer liability.
>
> Having reviewed the operator’s evidence, I can see that the
operator is holding you responsible for the PCN. In its evidence
it states that you identified as the driver, then you declined
to identify the driver, so it is holding you responsible as
hirer. I also note that you did not identify as the driver.
>
> As such the assessor was required to review the relevant
sections of PoFA2012 that applied.
>
> Schedule 4 Paragraph 14 of PoFA 2012 states:
>
> “(2) The conditions are that—
>
> (a)the creditor has within the relevant period given the hirer
a notice in accordance with sub-paragraph (5) (a “notice to
hirer”), together with a copy of the documents mentioned in
paragraph 13(2) and the notice to keeper;”
>
> Paragraph 13 (2) OF PoFA 2012 states:
>
> “The creditor may not exercise the right under paragraph 4 to
recover from the keeper any unpaid parking charges specified in
the notice to keeper if, within the period of 28 days beginning
with the day after that on which that notice was given, the
creditor is given—
>
> (a)a statement signed by or on behalf of the vehicle-hire firm
to the effect that at the material time the vehicle was hired to
a named person under a hire agreement;
>
> (b)a copy of the hire agreement; and
>
> (c)a copy of a statement of liability signed by the hirer
under that hire agreement.”
>
> Having viewed the operator’s evidence I can see that the
operator has not provided any documents.
>
> The assessor within their grounds of appeal was satisfied that
hirer liability was met when assessing this appeal. Whilst this
is not the decision I would have made personally; the assessor
has considered all evidence and ultimately made an incorrect
judgement call. The assessor has not made a procedural error and
as such the case would not need reassessing.
>
> I have taken your feedback on board and forwarded this to the
assessor’s team leader for coaching purposes and have upheld
this complaint.
--- End Quote ---
I ignored the letters I received subsequently and as much as I
have fought up until this point, I'd be really grateful for a
little guidance on the next steps based on the information above
please.
Happy to provide any redacted docs necessary.
Thanks :)
#Post#: 35570--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: b789
Date: September 4, 2024, 3:42 am
---------------------------------------------------------
POPLA are slightly better now at interpreting POPLA. However, as
you have seen, they will never reverse a decision once made,
irrespective of whether they erred.
Never mind. The ultimate dispute resolution service is the small
claims track in the county court. You appear to be at this
stage.
Have you received an N1SDT claim form from the CNBC? If so, what
is the “issue date” on it. Also, who is the Claimant and, if
they’re using one, the solicitor?
Please show us the Particulars of Claim (PoC).
As I’m not familiar with this case from Pepipoo, I don’t need
any more details at this point as I would like to see the PoC
for CPR 16.4 failures of compliance and whether it is even
possible to understand what happened and the basis of thei
claim.
#Post#: 35573--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: cm790
Date: September 4, 2024, 3:55 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> POPLA are slightly better now at interpreting POPLA. However,
as you have seen, they will never reverse a decision once made,
irrespective of whether they erred.
>
> Never mind. The ultimate dispute resolution service is the
small claims track in the county court. You appear to be at this
stage.
>
> Have you received an N1SDT claim form from the CNBC? If so,
what is the “issue date” on it. Also, who is the Claimant and,
if they’re using one, the solicitor?
>
> Please show us the Particulars of Claim (PoC).
>
> As I’m not familiar with this case from Pepipoo, I don’t need
any more details at this point as I would like to see the PoC
for CPR 16.4 failures of compliance and whether it is even
possible to understand what happened and the basis of thei
claim.
>
--- End Quote ---
--- Quote from: b789 link ---
>
> POPLA are slightly better now at interpreting POPLA. However,
as you have seen, they will never reverse a decision once made,
irrespective of whether they erred.
>
> Never mind. The ultimate dispute resolution service is the
small claims track in the county court. You appear to be at this
stage.
>
> Have you received an N1SDT claim form from the CNBC? If so,
what is the “issue date” on it. Also, who is the Claimant and,
if they’re using one, the solicitor?
>
> Please show us the Particulars of Claim (PoC).
>
> As I’m not familiar with this case from Pepipoo, I don’t need
any more details at this point as I would like to see the PoC
for CPR 16.4 failures of compliance and whether it is even
possible to understand what happened and the basis of thei
claim.
>
--- End Quote ---
Thanks for the prompt response.
Here is the claim form. The issue date is 28th Aug, I've been
away and just returned last night to the letter.
HTML https://emergencyservicechallenge.co.uk/wp-content/uploads/2024/09/Claim-form-front-page.png
#Post#: 35581--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: b789
Date: September 4, 2024, 4:25 am
---------------------------------------------------------
With an issue date of 28th August, you have until Monday 16th
September to file your Acknowledgement of Service (AoS). To file
your AoS, follow the advice in this document:
HTML https://www.dropbox.com/s/xvqu3bask5m0zir/money-claim-online-How-to-Acknowledge.pdf?dl=0
There is no advantage in delaying the AoS and once filed, you
then have until 4pm on Monday 30th September to file your
defence. Do not file your defence using the MCOL website. It
will be filed as a PDF attachment to an email to
claimresponses.cnbc@justice.gov.uk and CC in yourself.
Please show us exactly the location of the car park as shown 9n
the claim form in the Particulars of Claim (PoC).
We will get back to you with some suggestions for your defence
once you can confirm that you have completed the AoS.
#Post#: 35819--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: cm790
Date: September 5, 2024, 1:17 pm
---------------------------------------------------------
--- Quote from: b789 link ---
>
> With an issue date of 28th August, you have until Monday 16th
September to file your Acknowledgement of Service (AoS). To file
your AoS, follow the advice in this document:
>
>
HTML https://www.dropbox.com/s/xvqu3bask5m0zir/money-claim-online-How-to-Acknowledge.pdf?dl=0
>
> There is no advantage in delaying the AoS and once filed, you
then have until 4pm on Monday 30th September to file your
defence. Do not file your defence using the MCOL website. It
will be filed as a PDF attachment to an email to
claimresponses.cnbc@justice.gov.uk and CC in yourself.
>
> Please show us exactly the location of the car park as shown
9n the claim form in the Particulars of Claim (PoC).
>
> We will get back to you with some suggestions for your defence
once you can confirm that you have completed the AoS.
>
--- End Quote ---
Sorry, I've looked over this form and I don't see a 9N.
I just have:
N1SDT
N9SDT
N9A
N9B
In my pack.
#Post#: 35820--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: DWMB2
Date: September 5, 2024, 1:18 pm
---------------------------------------------------------
It should say "as shown in the claim form".
#Post#: 35821--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: cm790
Date: September 5, 2024, 1:33 pm
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> It should say "as shown in the claim form".
>
--- End Quote ---
The location is The Meadows Retail Park Chelmsford.
I just read my appeal back, and it was very thorough at the
time. I've started building my defence document from this
template.
--- Quote ---
> IN THE COUNTY COURT
>
> Claim No.: xxxxxx
>
> Between
>
> Full name of parking firm Ltd, not the solicitor!
>
> (Claimant)
>
> - and -
>
> Defendant named on claim (can’t be changed to driver now)
>
> (Defendant)
>
> _________________
>
> DEFENCE
>
>
>
> 1. The Defendant denies that the Claimant is entitled to
relief in the sum claimed, or at all. It is denied that any
conduct by the driver was in breach of any term. Further, it is
denied that this Claimant (understood to have a bare licence as
agents) has standing to sue or form contracts in their own name.
Liability is denied, whether or not the Claimant is claiming
'keeper liability', which is unclear from the boilerplate text
in the Particulars of Claim ('the POC').
>
>
>
> The facts known to the Defendant:
>
> 2. The facts in this defence come from the Defendant's own
knowledge and honest belief. Conversely, the Claimant sets out
a cut-and-paste incoherent and sparse statement of case. The POC
appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to
"state all facts necessary for the purpose of formulating a
complete cause of action". The Defendant is unable, on the basis
of the POC, to understand with certainty what case,
allegation(s) and what heads of cost are being pursued, making
it difficult to respond. However, the vehicle is recognised and
it is admitted that the Defendant was the registered keeper.
>
> ^EDIT THIS PARAGRAPH If you weredriving, add 'and driver'
after the word 'keeper'.
>
> OR if the Defendant doesn't know who was driving, say that.
>
> OR deny being the driver if you weren't: ONLY IF TRUE!
>
>
>
> 3. [EXPLAIN IN YOUR OWN WORDS...NB: defences are written in
the THIRD person as 'the Defendant', not 'I did this' nor
'my/me'].
>
> Say why the car was there - if you know - but don't answer to
details that are not stated in the PARTICULARS OF CLAIM. If you
didn't get any letters or it was years ago & you can't recall if
you were driving, say that. ONLY IF TRUE.
>
> Most claims do not even state the alleged breach. If yours
doesn't state what the breach was, add the paragraphs and
judgments seen in the defence by @hharry100 here:
>
>
HTML https://forums.moneysavingexpert.com/discussion/comment/80343627/#Comment_80343627
>
> and change the paragraph numbering.
>
> If this was a residential site where the driver lives/was a
permitted visitor, statethose parking rights.
>
> Older residential defence examples are in the NEWBIES thread.
CRIB SOME PARAGRAPHS BUT USE THIS TEMPLATE AS YOUR BASE.
>
> We recommend you continue with this wording (yes, all of it.
Paragraphs suitably re-numbered to allow for the above).
>
>
>
> 4. The Claimant will concede that no financial loss has arisen
and that in order to impose an inflated parking charge, as well
as proving a term was breached, there must be:
>
> (i). a strong 'legitimate interest' extending beyond mere
compensation for loss, and
>
> (Ii). 'adequate notice' of the 'penalty clause' charge which,
in the case of a car park, requires prominent signs and lines.
>
> 5. The Defendant denies (i) or (ii) have been met. The charge
imposed, in all the circumstances is a penalty, not saved by
ParkingEye Ltd v Beavis [2015] UKSC67 ('the Beavis case'), which
is fully distinguished.
>
>
> Exaggerated Claim and 'market failure' currently being
addressed by UK Government
> 6. The alleged 'core debt' from any parking charge cannot
exceed £100 (the industry cap). It is denied that any 'Debt
Fees' or damages were actually paid or incurred.
>
> 7. This claim is unfair and inflated and it is denied that any
sum is due in debt or damages. This Claimant routinely pursues
an unconscionable fixed sum added per PCN, despite knowing that
the will of Parliament is to ban it.
>
> 8. This is a classic example where adding exaggerated fees
funds bulk litigation of weak and/or archive parking cases. No
checks and balances are likely to have been made to ensure
facts, merit or a cause of action (given away by the woefully
inadequate POC).
>
> 9. The Department for Levelling Up, Housing and Communities
('the DLUHC') published a statutory Parking Code of Practice in
February 2022:
HTML https://www.gov.uk/government/publications/private-parking-code-of-practice.
>
> The Ministerial Foreword is damning: "Private firms issue
roughly 22,000 parking tickets every day, often adopting a
labyrinthine system of misleading and confusing signage, opaque
appeals services, aggressive debt collection and unreasonable
fees designed to extort money from motorists."
>
> 10. Despite legal challenges delaying the Code (temporarily
withdrawn) it is now 'live' after a draft Impact Assessment (IA)
was published on 30th July 2023. The Government's analysis is
found here:
HTML https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1171438/Draft_IA_-_Private_Parking_Code_of_Practice_.pdf
>
> 11. Paragraphs 4.31 and 5.19 state that the parking industry
has shown the DLUHC that the true minor cost of pre-action stage
totals a mere £8.42 per case (not per PCN).
>
> 12. This claim has been enhanced by a disproportionate sum,
believed to enrich the litigating legal team. It appears to be
double recovery, duplicating the intended 'legal fees' cap set
by small claims track rules.
>
> 13. The draft IA shows that the intimidating letter-chains
endured by Defendants cost 'eight times less' than the fixed
+£70 per PCN. This causes immense consumer harm in the form of
some half a million wrongly-enhanced CCJs each year, that Judges
are powerless to prevent. MoJ statistics reveal several hundred
thousand parking claims per annum, with c90% causing default
CCJs totalling hundreds of millions of pounds. The false fee was
enabled by the self-serving Codes of Practice of the rival
parking Trade Bodies who aligned in 2021 to allow +£70, each led
by a Board comprising the parking and debt firms who stood to
gain from it.
>
> 14. It is denied that the added damages/fee sought was
incurred or is recoverable. Attention is drawn to paras 98, 100,
193, 198 of Beavis. Also ParkingEye Ltd v Somerfield Stores Ltd
ChD [2011] EWHC 4023(QB) where the parking charge was £75,
discounted to £37.50 for prompt payment. Whilst £75 was
reasonable, HHJ Hegarty (decision ratified by the CoA) held in
paras 419-428 that 'admin costs' inflating a PCN to £135
exaggerated the cost of template letters and 'would appear to be
penal'.
>
> 15. This Claimant has not incurred costs. A PCN model already
includes what the Supreme Court called an 'automated
letter-chain' and it generates a healthy profit. In Beavis,
there were 4 pre-action letters/reminders and £85 was held to
more than cover the minor costs of the operation (NB: debt
collectors charge nothing in failed collection cases).
>
> 16. Whilst the new Code is not retrospective, all non-monetary
clauses went unchallenged. It will replace the self-serving BPA
& IPC Codes, which are not regulation and carry limited weight.
It is surely a clear steer for the Courts that the DLUHC said in
2023 that it is addressing 'market failure'.
>
> 17. At last, the DLUHC's analysis overrides plainly wrong
findings by Circuit Judges steered by Counsel in weak appeal
cases that the parking industry steamrollered through. In
Vehicle Control Services v Percy, HHJ Saffman took a
diametrically opposed position to that taken by DJ Hickinbottom,
DJ Jackson (as Her Honour Judge Jackson then was), and other
District Judges on the North Eastern Circuit, including DJ
Skalskyj-Reynolds and DJ Wright (Skipton) all of whom have
consistently dismissed extortionate added 'fees/damages'.
District Judges deal with private parking claims on a daily
basis, whereas cases of this nature come before Circuit Judges
infrequently. The Judgments of HHJ Parkes in Britannia v
Semark-Jullien, and HHJ Simpkiss in One Parking Solution v
Wilshaw were flawed. These supposedly persuasive judgments
included a universal failure to consider the court's duty under
s71 of the CRA 2015 and factual errors. In Wilshaw: a badly
outdated reliance on 'ticket cases' which allowed poor signage
to escape fair scrutiny and a wrong presumption that landowner
authority 'is not required' (DVLA rules make it mandatory). In
Percy, HHJ Saffman made an incorrect assumption about pre-action
costs and even sought out the wrong Code of Practice of his own
volition after the hearing, and used it to inform his judgment.
>
> 18. In addition, pursuant to Schedule 4 paragraph 4(5) of the
Protection of Freedoms Act 2012 ('the POFA') the sum claimed
exceeds the maximum potentially recoverable from a registered
keeper. The Claimant is put to strict proof of POFA compliance
if seeking 'keeper liability'.
>
> 19. The Defendant avers that there was no agreement to pay a
parking charge or added 'damages' which were not even incurred,
let alone quantified in bold, prominent text. This Claimant's
lack of large, readable signs are nothing like the yellow &
black warnings seen in Beavis, nor do they meet the signage
requirements in the DLUHC Code which reflects the already
statutory requirement for 'prominence' (Consumer Rights Act 2015
- the 'CRA').
>
> CRA breaches
>
> 20. Section 71 CRA creates a statutory duty upon Courts to
consider the test of fairness whether a party raises it or not.
Further, claiming costs on an indemnity basis is unfair, per the
Unfair Contract Terms Guidance (CMA37, para 5.14.3):
>
>
HTML https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/450440/Unfair_Terms_Main_Guidance.pdf
>
> 21. The CRA introduced new requirements for 'prominence' of
both terms and 'consumer notices'. In a parking context, this
includes a test of fairness and clarity of 'signs & lines' and
all communications (written or otherwise). Signs must be
prominent (lit in hours of darkness/dusk) and all terms must be
unambiguous and contractual obligations clear.
>
> 22. The Defendant avers that the CRA has been breached due to
unfair/unclear terms and notices, pursuant to s62 and paying
regard to examples 6, 10, 14 & 18 of Schedule 2 and the duties
of fair/open dealing and good faith (NB: this does not
necessarily mean there has to be a finding of bad faith).
>
> ParkingEye v Beavis is distinguished
>
> 23. Unlike in Beavis, the penalty rule remains engaged. The
CRA covers disproportionate sums, which are not exempt from
being assessed for fairness because a 'fee' is not the core
price term and neither was it prominently proclaimed on the
signs.
>
> 24. The Supreme Court held that deterrence is likely to be
penal if there is a lack of a 'legitimate interest' in
performance extending beyond the prospect of compensation
flowing directly from alleged breach. The intention cannot be
to punish a driver, nor to present them with hidden terms or
cumbersome obligations ('concealed pitfalls or traps'). This
Claimant has failed those tests, with small signs, hidden terms
and minuscule small print that is incapable of binding a driver.
Court of Appeal authorities about a lack of ‘adequate notice’ of
a parking charge include:
>
> (i) Spurling v Bradshaw [1956] 1 WLR 461 (Lord Denning's ‘red
hand rule’) and
>
> (ii) Thornton v Shoe Lane Parking Ltd [1970] EWCA Civ2,
>
> both leading authorities that a clause cannot be incorporated
after a contract has been concluded; and
>
> (iii) Vine v London Borough of Waltham Forest: CA 5 Apr 2000,
where Ms Vine won because it was held that she had not seen the
terms by which she would later be bound, due to "the absence of
any notice on the wall opposite the parking space''.
>
> 25. Fairness and clarity of terms and notices are paramount
in the DLUHC Code and these clauses are supported by the BPA &
IPC. In the official publication 'Parking Review' the IPC's CEO
observed: "Any regulation or instruction either has clarity or
it doesn’t. If it’s clear to one person but not another, there
is no clarity. The same is true for fairness. Something that is
fair, by definition, has to be all-inclusive of all parties
involved – it’s either fair or it isn’t."
>
> Lack of standing or landowner authority, and lack of ADR
>
> 26. DVLA data is only supplied if there is an agreement
flowing from the landholder (ref: KADOE rules). It is not
accepted that this Claimant (an agent of a principal) has
authority to form contracts at this site in their name. The
Claimant is put to strict proof of their standing to litigate.
>
> 27. The Claimant failed to offer a genuinely independent
Alternative Dispute Resolution (ADR). The DLUHC Code shows that
genuine disputes such as this should see PCNs cancelled, had a
fair ADR existed. The rival Trade Bodies' time-limited and
opaque 'appeals' services fail to properly consider facts or
rules of law and reject most disputes: e.g. the IAS upheld
appeals in a woeful 4% of decided cases (ref: Annual Report).
This consumer blame culture and reliance upon their own 'appeals
service' (described by MPs as a kangaroo court and about to be
replaced by the Government) should satisfy Judges that a fair
appeal was never on offer.
>
> Conclusion
>
> 28. There is now evidence to support the view - long held by
many District Judges - that these are knowingly exaggerated
claims that are causing consumer harm. The July 2023 DLUHC IA
analysis shows that the usual letter-chain costs eight times
less than the sum claimed for it. The claim is entirely without
merit and the POC embarrassing. The Defendant believes that it
is in the public interest that poorly pleaded claims like this
should be struck out.
>
> 29. In the matter of costs, the Defendant seeks:
>
> (a) standard witness costs for attendance at Court, pursuant
to CPR 27.14, and
>
> (b) a finding of unreasonable conduct by this Claimant, and
further costs pursuant to CPR 46.5.
>
> 30. Attention is drawn to the (often-seen) distinct
possibility of an unreasonably late Notice of Discontinuance.
Whilst CPR r.38.6 states that the Claimant is liable for the
Defendant's costs after discontinuance (r.38.6(1)) this does not
'normally' apply to claims allocated to the small claims track
(r.38.6(3)). However, the White Book states (annotation 38.6.1):
"Note that the normal rule as to costs does not apply if a
claimant in a case allocated to the small claims track serves a
notice of discontinuance although it might be contended that
costs should be awarded if a party has behaved unreasonably
(r.27.14(2)(dg))."
>
>
>
> 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.
>
> Signature:
>
> Date:
--- End Quote ---
#Post#: 35824--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: cm790
Date: September 5, 2024, 2:02 pm
---------------------------------------------------------
These were my reasons on my appeal to POPLA.
1) The Operator failed to deliver a Notice to Hirer that was
fully compliant with the
requirements of Schedule 4 of the Protection of Freedoms Act
2012 (“POFA”).
2) The signs in this car park are not prominent, clear or
legible from all parking space and
there is insufficient notice of the sum of the parking
charge itself. The car park has a
sign that is completely missing which I evidence with a
photograph.
3) There is no evidence to show that the ANPR is reliable.
4) The operator has not shown that the individual who it is
pursuing is in fact the driver
who was liable for the charge.
5) No evidence of Landowner Authority - the operator is put to
strict proof of full
compliance with the BPA Code of Practice.
6) Vehicle Images contained in PCN: BPA Code of Practice -
non-compliance.
7) The Signs Fail to Transparently Warn Drivers of what the ANPR
Data will be used for.
Re point number 2, the side that the vehicle was parked on, the
sign had completely fallen off of on to the floor.
#Post#: 35840--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: H C Andersen
Date: September 5, 2024, 4:27 pm
---------------------------------------------------------
It's verbiage, waffle. Lacks any coherence and what's more
you've no understanding of the matters.
Why you want to cast doubt on who was driving by giving such
apparent eye-witness views with such clarity regarding signs
I've no idea.
The LAW.
If the claimant wants to hold the hirer liable in lieu of the
keeper then the keeper and claimant must comply with PoFA.
As regards the keeper:
To challenge their liability by providing the prescribed docs in
s13.
As regards the claimant:
To issue an in-time notice to the hirer which includes mandatory
info and is accompanied by the specified docs which ARE NOT just
those in s13 but include the original PCN.
Have both parties complied?
This is not about codes of practice but the law. Keep it short
and to the point IMO.
Plus, IMO you could ask for the court to strike out the claim by
virtue of not being brought in a timely manner.
6 years is not a target, it's the ultimate limit. The claimant
in this case was fully aware of all relevant info after POPLA's
decision was served in 2020, 4 years ago. The only apparent
purpose in delaying pursuing their claim would seem to be to
hope that the defendant had moved or forgotten matters or died
or whatever such that they might obtain a default judgment.
Luckily for you, you were still at the same address and received
their claim, otherwise you could have found yourself subject to
a default judgment.
#Post#: 35844--------------------------------------------------
Re: New court claim issued - 28th Aug
DIR By: cm790
Date: September 5, 2024, 4:54 pm
---------------------------------------------------------
--- Quote from: H C Andersen link ---
>
> It's verbiage, waffle. Lacks any coherence and what's more
you've no understanding of the matters.
>
> Why you want to cast doubt on who was driving by giving such
apparent eye-witness views with such clarity regarding signs
I've no idea.
>
> The LAW.
>
> If the claimant wants to hold the hirer liable in lieu of the
keeper then the keeper and claimant must comply with PoFA.
>
> As regards the keeper:
> To challenge their liability by providing the prescribed docs
in s13.
>
> As regards the claimant:
> To issue an in-time notice to the hirer which includes
mandatory info and is accompanied by the specified docs which
ARE NOT just those in s13 but include the original PCN.
>
> Have both parties complied?
>
> This is not about codes of practice but the law. Keep it short
and to the point IMO.
>
> Plus, IMO you could ask for the court to strike out the claim
by virtue of not being brought in a timely manner.
>
> 6 years is not a target, it's the ultimate limit. The claimant
in this case was fully aware of all relevant info after POPLA's
decision was served in 2020, 4 years ago. The only apparent
purpose in delaying pursuing their claim would seem to be to
hope that the defendant had moved or forgotten matters or died
or whatever such that they might obtain a default judgment.
Luckily for you, you were still at the same address and received
their claim, otherwise you could have found yourself subject to
a default judgment.
>
--- End Quote ---
With respect, like most people in my position, we rely on the
good nature of people like yourselves for advice. I'm grateful,
but I'm also not an expert. I try my best to tell these
companies to stick it, just like the rest.
This was my explanation of point 1) The Operator failed to
deliver a Notice to Hirer that was fully compliant with the
requirements of Schedule 4 of the Protection of Freedoms Act
2012 (POFA).
--- Quote ---
> In order to rely upon POFA to claim unpaid parking charges
from a vehicle’s hirer, an operator
> must deliver a Notice to Hirer in full compliance with POFA’s
strict requirements. In this instance,
> the Operator’s Notice to Hirer did not comply.
> The relevant provisions concerning hire vehicles are set out
in Paragraphs 13 and 14 of
> Schedule 4 of POFA with the conditions that the Creditor must
meet in order to be able to hold
> the hirer liable for the charge being set out in Paragraph 14.
> Paragraph 14(2) (a) specifies that in addition to delivering a
Notice to Hirer within the relevant
> period, the Creditor must also provide the Hirer with a copy
of the documents mentioned in
> Paragraph 13(2) (i.e. (a) a statement signed by or on behalf
of the vehicle-hire firm to the effect
> that at the material time the vehicle was hired to a named
person under a hire agreement; (b) a
> copy of the hire agreement; and (c) a copy of a statement of
liability signed by the hirer under
> that hire agreement), together with a copy of the Notice to
Keeper (i.e. the notice that had
> originally been sent to the lease company (as Registered
Keeper)). The Operator did not
> provide me with copies of any of these documents.
> Should the Operator try to suggest that there is any other
method whereby a vehicle’s keeper
> (or hirer) can be held liable for a charge where a driver is
not identified, I draw POPLA’s
> attention to 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 (or hirer's) right not to
> name the driver whilst still not being held liable for an
unpaid parking charge under Schedule 4
> of POFA. Although I trust that POPLA's assessors are already
very familiar with the contents of
> this report, for ease of reference I set out a link as
follows:
>
HTML https://assets.ctfassets.net/jsycjdw1p8kq/1BbHkInc8M97VAxJjjasLe/
> b6ac462cf8916a04597fa65628a53726/popla_annualreport_2015.pdf
> I draw POPLA’s particular attention to the section entitled
“Keeper Liability” in which Mr.
> Greenslade explains that:
> “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.......
> .......... However keeper information is obtained, 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”.
> Through its failure to deliver a compliant Notice to Hirer,
the Operator has forfeited its right to
> claim unpaid parking charges from the vehicle’s hirer. For
this reason alone, POPLA may
> determine that the Operator’s claim against me is invalid.
--- End Quote ---
This was in my appeal email to the POPLA complaint's team (prior
to them sending me the email in my first post):
--- Quote ---
> I recently appealed a PCN that I received from Euro Car Parks
and the appeal was unsuccessful. The assessor name for my case
was xx and I believe he has made a procedural error by not
acknowledging my appeal point of there being no hirer liability.
>
> This appeal must be allowed because the operator Euro Car
Parks failed to deliver a notice to hirer that was fully
compliant with the requirements of paragraph 14 of Schedule 4 of
the Protection of Freedoms Act (PoFA) 2012, which is relevant to
the hirer and operator. The assessor appears to be mistakenly
using POFA 13 for the operator/hirer relationship. The operator
has not shown that the individual it is pursuing is the driver
of the vehicle and potentially liable for the charge. I have
referred to the right to not name the name and keeper liability.
A notice to hirer was sent to the appellant on xx/xx/2020, this
was after a PCN was issued to the hire company on xx/xx/2020.
The operator has failed to provide evidence which shows that the
appellant had signed a statement of liability when he hired the
vehicle and that this was sent along with the PCN. The assessor
has completely ignored the requirement to supply the hire
agreement and notice to keeper with the notice to hirer.
>
> The assessor has used the phrase “registered hirer” in their
response, I would ask what meaning does this have in the context
of this case as it is not clear as to what he means. The
registered hirer could not possibly be the registered keeper as
this role is taken by the hire company, more clarity is needed
by the assessor and I would hasten to say more training. I feel
that the lead assessor in this matter has erred in the
interpretation of law, it must be reviewed and the decision
amended to one of an upholding of the appeal.
--- End Quote ---
Does the above answer both questions that you have asked me?
Is there case law which supports the claim being struck off due
to the time that has passed?
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