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Not the registered keeper?, Threads merged x3
banana0909
post Tue, 15 Jan 2019 - 00:27
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I've just received a Letter before claim,(well actually it was issued on the 6th December 2018, but as we have moved house, I didn't get it until now, when they have somehow tracked me down) from a Parking ticket almost 3 years ago. That was placed on the registered keepers car by PCM, for some reason, the company and now solicitors have decided to chase me for the ticket, but I'm not the registered keeper and I probably wasn't the driver at the time. I did write the initial appeal to the company, but when we went through the official appeal, to the so called independent body, the registered keeper declaired himself as the registered keeper and wrote the appeal on that site. We lost the appeal, And then heard nothing from them until now, potentially because we moved house, only a few months after the ticket was issued.

The registered keeper of the vehicle was never issued with a notice to keeper, they've never actually attempted to contact the registered keeper.

The ticket was issued at outside our home, at 4am on a Sunday morning, 5 days after the permit was due for renewal and they had only sent one renewal reminder, 2 months previous, we along with most other residents (judging by the vast amount of parking tickets on car that morning) simply forgot to renew. The next day we brought our years permit, Which only runs from the start of the term anyway, so it's not like we didn't pay, or ever intended not to pay, it was a simple oversight.

Not really sure what to do about it now? should I just tell them I was not the registered keeper or the driver of the vehicle. I assume they will then come after the registered keeper, not sure if at that point we can say the notice to keeper was never issued?

Thanks

This post has been edited by banana0909: Tue, 15 Jan 2019 - 12:06
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Sheffield Dave
post Wed, 15 May 2019 - 16:49
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The driver is the person who parked the car in such a manner that they entered into a contract with the PPC which committed them to certain obligations (such as paying £100 for an overstay). That individual needn't be around when a ticket is later issued.

The PPC have to convince a judge, based on evidence and testimony, and on the balance of probabilities, that you were the individual who made the choice to park the car; or instead that they have followed the requirements to transfer liability to to RK and that you are the RK.
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The Rookie
post Wed, 15 May 2019 - 17:10
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QUOTE (Sheffield Dave @ Wed, 15 May 2019 - 17:49) *
that you are the RK.

No, that he was the keeper at the relevant time, the RK may be assumed to be the keeper.
(Schedule 4, para 4).


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banana0909
post Sat, 25 May 2019 - 22:11
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Please could someone look over my defence and let me know if it is okay, I've tried my best, but never had to do anything like this before and have done lots of searching and research, so apologies if I have totally messed it up.

In The County Court
Claim No: XXXXXXX
Between
XXXXXX(Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The facts are that the Defendant was not the owner, registered keeper or Driver of the vehicle, registration XXXX.

3. The Defendant denies that any contract was formed between themselves and the claimant.

4. The registered keeper and driver identified themselves to the Claimant during the appeal process to the IAS, on the 14/06/2016 and is willing to provide a witness statement to this effect.

5. The Defendant avers that the Claimant did not incur additional costs and they are put to proof that they have actually incurred and can lawfully add an extra sums.

6. The Claimant did receive full payment for the year permit of £25 from the registered keeper of the vehicle. No agreement was signed that created any 'relevant obligation' to display it. The Defendant had no idea about any £100 penalty for not doing something.

7.The Registered keeper would have an unconditional right to park at the property as superceeded by the lease, which does not mention any need to have a permit to park at the property. 3.29. Parking

Right to park, according to primacy of contract the lease cannot be fettered by any alleged parking terms. Nowhere in the lease for the property does it state that a permit must be displayed to park on the premises. The lease contract states:


The lease states in Schedule 2 Clause 4, on page 21:

The right to use the Communal Facilities, for all purposes incidental to the occupation and enjoyment of the Premises.

The definition of Communal Facilities described in Schedule 6, on page 35, includes car parks:

“Communal Facilities” means party walls, fences, gutters, drains, roadways, pavements, entrance ways, staircases, lavatories, accessways, passages, lifts, escalators, turntables, courtyards, external paviours, car parks and service or loading areas and other such amenities which are or may be used or enjoyed by an occupier of the Premises in common with any other person or persons.

The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

8. Any contract that may have been formed between the driver of the vehicle and the Claimant would be unlawful as derogation from grant.

9. The Defendant believes the ticket to be unfair, as the claiment used predatory, and misleading tactics to lure drivers on the Estate into incurring parking penalties, which is against the ICP code of practise.

10. The Defendant believes any contract formed between the driver and the Claimant is unfair defined under the terms of the Consumer Contracts Regulations 1999 section 5-1 and 5-2. Section 8-1 states that an unfair contract is not binding on the consumer. Specifically in section 2 1 (e) where it states, requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.

11. The Defendant believes It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.

12. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

13. The IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The signage at the entrance to the site states “Resident parking only”.

14. The Claimant is put to strict proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal. The Defendant has the reasonable belief that the Claimant does not have the authority to issue charges on this land in their own name, and that they have no right to bring any action regarding this claim.

In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

I believe that the facts stated in this Defence are true.

This post has been edited by banana0909: Sat, 25 May 2019 - 22:31
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Redivi
post Sun, 26 May 2019 - 07:27
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Not bad but I'm confused by a few points

#2/3 The Defendant denies that he was either the driver or registered keeper of the vehicle and further denies that he has entered into any contract with the Claimant.
#4 The Driver identified himself in an appeal to the IAS (14 June 2016). Any right that the Claimant had to recover payment from the keeper under POFA immediately ended
#5 The Defendant is incredulous that the Claimant paid a debt collector £** to recover a £*** parking charge whether or not it was successful
Even if it did AND could still rely on POFA, it cannot recover the charge from the keeper
#6 I have no idea was this point means
#7 It's irrelevant that the registered keeper had a right to park if the driver didn't
#9 The Claimant's action to visit the location at 4 am on a Sunday morning to inspect for permits that had expired at midnight amounts to a predatory tactic that its Code of Practice describes as a serious breach of the Code.
#10 Lose it. Unfair Terms CCR 1999 was replaced by the Consumer Rights Act 2015 and, in any case, the Supreme Court said it doesn't apply
#11 The amount is a penalty. The Claim is distinguished from ParkingEye v Beavis. The Claimant has no commercial interest; it is grossly disproportionate when the Claimant knew the vehicle to be parked in its own space and the Claimant has not complied with its Code of Practice
#13 Don't understand what point you're trying to make
#14 As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal in accordance with the IPC Code of Practice Para B1.1.

This post has been edited by Redivi: Sun, 26 May 2019 - 07:27
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banana0909
post Sun, 26 May 2019 - 20:44
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Thank you very much - very helpful I will make the changes - here is some clarification on the points.

So the Driver and registered keeper, identified themselves in the appeal to the IAS (not me) but they are the same person, the reason they are chasing me is because I made it sound like I could have been the driver and it was my car in the appeal letter to them the first one, as I sort of wrote it on behalf of the registered keeper and driver, not really thinking at the time, to be honest the letter is all over the place, with lots of "we's" and "me's" all mixed up, however once we got to the IAS appeal, and it asked to specify the registered keeper and driver, I handed over the appeal to the registered keeper and the driver and they completed the appeal on the IAS declaring that they are the registered keeper and the driver in their name not mine.

#6 I have no idea was this point means
The permit to park costs £25 a year, the permit expired on the 31st May 2016, The registered keeper renewed the permit on the 7th June, but could not pro rata the payment he still had to pay for the full period, from the 1st June, so even though the ticket was not displayed, it was paid for in full for that period. The letter to renew was received and read by the registered keeper of the vehicle (it was sent in April, almost 2 months before the permit was due to renew and no reminders where sent.) I did not view the letter to renew, as I had no reason to, it's not my car. even the solicitor acting on behalf of the claiment made the point to me in one of there letters, "if it is not my car, why would I buy a permit for it", or know that I had to renew one, or agree to any terms, read the sign or letters sent to the house.


#13 Don't understand what point you're trying to make
In the IPC code of practise it says signage to the site entrance must be clear, the only sign up at the entrance to the estate is a big sign (put up by the land owner not the PPC) saying "Private Estate, resident parking only." Which always led me to believe as a resident I could park there.


Thanks



This post has been edited by banana0909: Sun, 26 May 2019 - 20:47
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ostell
post Sun, 26 May 2019 - 21:48
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So mention that sign at the entrance that gives a resident permission to park without any other limititations.

This post has been edited by ostell: Sun, 26 May 2019 - 21:52
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banana0909
post Sat, 1 Jun 2019 - 21:36
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Almost ready to submit I think - This is what I have now. Is it ok?

In The County Court
Claim No: XXXXXXX
Between
XXXXXX(Claimant)

-and-

XXXXXXX (Defendant)

____________
DEFENCE

1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all.

2. The Defendant denies that she was either the driver or registered keeper of the vehicle and further denies that she has entered into any contract with the Claimant.

3. The Driver identified himself in an appeal to the IAS (14 June 2016). Any right that the Claimant had to recover payment from the keeper under POFA immediately ended.

4. The defendant denies receiving any letters to renew a permit, Which would have been viewed by the registered keeper of the vehicle so was unaware of any requirement to renew a permit for the car.

5.The Driver would have an unconditional right to park at the property as a resident and as superceeded by the lease, which does not mention any need to have a permit to park at the property. 3.29. Parking

Right to park, according to primacy of contract the lease cannot be fettered by any alleged parking terms. Nowhere in the lease for the property does it state that a permit must be displayed to park on the premises. The lease contract states:

Schedule 2 Clause 4, on page 21:

The right to use the Communal Facilities, for all purposes incidental to the occupation and enjoyment of the Premises.

The definition of Communal Facilities described in Schedule 6, on page 35, includes car parks:

“Communal Facilities” means party walls, fences, gutters, drains, roadways, pavements, entrance ways, staircases, lavatories, accessways, passages, lifts, escalators, turntables, courtyards, external paviours, car parks and service or loading areas and other such amenities which are or may be used or enjoyed by an occupier of the Premises in common with any other person or persons.

The Defendant avers that the operator’s signs cannot (i) override the existing rights enjoyed by residents and their visitors and (ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease.

8. Any contract that may have been formed between the driver of the vehicle and the Claimant would be unlawful as derogation from grant.

9. The Claimant's action to visit the location at 4 am on a Sunday morning to inspect for permits that had recently expired amounts to a predatory tactic that its Code of Practice describes as a serious breach of the Code.

10. The amount is a penalty. The Claim is distinguished from ParkingEye v Beavis. The Claimant has no commercial interest; it is grossly disproportionate when the Claimant knew the vehicle to be parked in a residential space allocated for residents to park in and the Claimant has not complied with its Code of Practice.

11. The Protection of Freedoms Act 2012, Schedule 4, at Section 4(5) states that the maximum sum that may be recovered from the keeper is the charge stated on the Notice to Keeper, in this case £100. The claim includes an additional £60, for which no calculation or explanation is given, and which appears to be an attempt at double recovery.

12. The defendant denies signage at the site is clear, the IPC guidelines state that signage at the entrance to the site should ‘Make it clear that the motorist is entering onto private land’. The signage at the entrance to the site which was put up by the landowner states “Private Estate, Resident parking only”.
giving a resident permission to park without any other limititations.

13. As a third party agent, the Claimant may not pursue any charge, unless specifically authorised by the principal in accordance with the IPC Code of Practice Para B1.1.

In summary, the Claimant's particulars disclose no legal basis for the sum claimed, and the Court is invited to dismiss the claim in its entirety.

I believe that the facts stated in this Defence are true.

Thanks

Dana
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Lynnzer
post Sun, 2 Jun 2019 - 20:44
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I'd put 5 at the very top.
This is a crucially important point that supercedes all other defence ideas.


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ViroBono
post Tue, 4 Jun 2019 - 06:40
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QUOTE
5.The Driver would have an unconditional right to park at the property as a resident and as superceeded by the lease, which does not mention any need to have a permit to park at the property.


Doesn't make sense. It would be better to say "The Driver would have an unconditional right to park at the property as a resident and as set out in the lease. . ."
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banana0909
post Thu, 6 Jun 2019 - 00:13
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I submitted my defence and today got an email from them saying they will pursue this on paperwork and not attend a hearing and sent a copy of a form - I assume the court will be sending me asking if I agree to do it on paper?

Is this a good move or bad move, personally I feel I'm better a communicating in person as I am dyslexic and not very good at written communication. but also don't really want a day in court either?

Is defending a claim on paper a good or bad thing?

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The Rookie
post Thu, 6 Jun 2019 - 04:14
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Defending on paper is a very bad idea
1/ They will seek to introduce new arguments in the witness statement you can't rebut
2/ They are more experienced than you putting you at a bigger disadvantage on paper
3/ It is not a simple matter suitable for an 'on papers' ruling
4/ It's much cheaper for them, if they win you want them to be out of pocket by having at attend the hearing anyway!


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There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

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ostell
post Thu, 6 Jun 2019 - 07:35
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Here's some potted text I saved about this. Edit to suit.

Response to N159 : Claimant’s request for special direction

The Defendant has been informed that the Claimant has proposed a hearing on the papers because it considers the matter to be relatively straightforward.
He has also been informed that the Claimant requests to transfer the hearing to the Claimant’s local court if the Defendant does not consent.

The Defendant objects strongly to both proposals and denies that the matter is relatively straightforward.

Issues in dispute include :

1 The Claimant’s failure to disclose any details or cause of action
2 The Claimant’s authority to *********
3 The Claimant’s failure to **********
4 The inadequate signage at the location
5 The Defendant’s denial that any contract has ever existed with the Claimant
6 The Claimant’s addition of Indemnity Costs

The Defendant will therefore wish to question the Claimant regarding its witness statement and other documents.

The Defendant, as a litigant in person would be seriously disadvantaged against the Claimant, a parking company that has employed its Trade Association solicitor to prepare its documents.
The Defendant respectfully reminds the Court that the Claimant has ignored a request, in response to its Letter Before Claim, to provide a copy of ******.

The Defendant has the reasonable belief that the Claimant may attempt to introduce documents and arguments that he will not have the opportunity to dispute.

He therefore requests that the case be listed for an oral hearing at the Defendant’s local court in accordance with the Practice Direction when the Defendant is an individual.

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banana0909
post Fri, 6 Sep 2019 - 12:08
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Thanks to everyone for their help so far.

Having not heard anything for a while I was hoping it had gone away but today I got a letter from my local county court.

Notice of allocation to the small claims track.

At the top it says:

WARNING: the following paragraphs set out the judges direction for the disposal of this claim. Failure to comply with the directions may result in the party's case being struck out.

It then says the judge has allocated the case to the small claims track.

And then states unless the claiment does by a specific date and time pay the court fees, the claim will be struck out.

Then it goes on to say the date and time the court will hear the case.

Then it goes on to state a date and time to send over the paperwork to the court and the other party.

So my questions?

1) Shall I wait until the date stated on the form that the claiment has to pay before doing anything in the hope they won't pay it - is this normal for them not to pay the court fees.

2) How long will it take until after the date stated to inform me that the claim has been struck out if indeed it does get struck out?

3) I only ask that as the time between their deadline and the date I need to submit paperwork to the court and the other party is just 2 weeks - So I don't want to be caught out without enough time to prepair things if indeed the hearing does go ahead.

Any advise will be helpful at his point.

Thanks

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Redivi
post Fri, 6 Sep 2019 - 12:55
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Prepare everything so it's ready to submit before the deadline

As you've already said, waiting until you know the hearing will definitely go ahead will leave you very tight on time
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banana0909
post Fri, 6 Sep 2019 - 13:57
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Thanks I'll get going then - I'm planning on getting the Registered keeper and driver who has already admitted to them he is both to write a witness statement - and I have already sent the court and the solicitors copies of the online form from the appeal website where the RK and Driver aknowledged themselves as such, it even says that the claiment has acknowledge them to be both as well and I have repeatedly told the solicitors I am neither - I really can't believe this has not been thrown out thus far. Just out of interest can the Judge turn to the RK and driver and say on the court date well you pay it then? or would another case have to be heard? Because obviously he also has reasons not to pay it.

Also do I need to get any other form of proof that I am not the registered keeper or will another persons word and the admission on the form be enough - just wondering if I should get something from the DVLA?

Thanks
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nosferatu1001
post Fri, 6 Sep 2019 - 14:13
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Just get on with it
They'll pay
There are no cases recently where theyve failed to do so.

Get your WS written -LOADS of examples here and on the MSE forum parking sub forum NEWBIES thread - and all your evidence REFERENCED FROM THE WS and together
You will be hand delivering to the court and POSTING FIRST CLASS with PROOF OF POSTAGE to the claimant.
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Redivi
post Fri, 6 Sep 2019 - 16:22
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You've denied that you were the registered keeper
The appeal to the IAS includes the details of the registered keeper

PCM has to prove that both statements are untrue

As they've never applied to the DVLA for the registered keeper details, they can't

Don't think this is pedantry but a potential leak that needs plugging

POFA does not say that PCM has the right to recover payment from the registered keeper
It only says it can recover payment from the keeper and defines who this is
It only says that they are presumed to be the same person unless there is proof that they're not

The registered keeper must therefore say that he is also the person that keeps the vehicle and/or you must say that you're not

Otherwise there's a small opening that PCM can say that you may not be the RK or the driver but you made the original appeal because you were keeping the vehicle
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