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Horizon Parking straight to court action
Kieran_e1
post Thu, 28 Mar 2019 - 17:52
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looking for some assistance here please. this is taking place in Scotland

A brief summary

Horizon Parking have lodged an action suing the owner of a vehicle for £2,500 claiming that their car was parked in a residents only parking area no less than 21 times without a permit. It is not a council run or publicly owned car park.

For 100% clarity the owner of the car has never parked the car there and has never visited the location at any time. On some of the occasions they are claiming for the vehicle owner was out of the country. They also own and use another vehicle.

Can someone give me a steer to the case law or precedent which means the contract is with the driver and not the car owner

secondly

if someone could steer me to the lack of requirement for a registered keeper to name the driver in these circumstances that would be grand too.

No correspondence has been entered into prior to the summons which arrived today.

cheers

kieran

This post has been edited by Kieran_e1: Thu, 28 Mar 2019 - 17:56
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post Thu, 28 Mar 2019 - 17:52
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Jlc
post Thu, 28 Mar 2019 - 19:59
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The driver always forms the alleged contract. If they have complied with the protections of freedoms act then they can pursue the keeper for the driver’s unpaid parking charge.

The keeper does not have to name the driver but they can pursue them as above if they have complied.


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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Kieran_e1
post Thu, 28 Mar 2019 - 20:55
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QUOTE (Jlc @ Thu, 28 Mar 2019 - 19:59) *
The driver always forms the alleged contract. If they have complied with the protections of freedoms act then they can pursue the keeper for the driver’s unpaid parking charge.

The keeper does not have to name the driver but they can pursue them as above if they have complied.

Absolutely no correspondence has been entered into with the owner of the vehicle prior to a summons.

would the owner then just be able to attend the hearing and present evidence that they were not the driver and case closed?
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bobthesod
post Thu, 28 Mar 2019 - 20:55
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I thought that the pursuit of the RK doesnt apply in Scotland. or has the law changed recently?
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Kieran_e1
post Thu, 28 Mar 2019 - 21:05
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also reading schedule 4 section which is the relevant secton it refers only to england and wales.

I cannot find a scottish equivalent.

am i corrrect?
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Jlc
post Thu, 28 Mar 2019 - 21:21
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Sorry, I missed it was Scotland.

They can only pursue the driver. They would have to show the defendant was driving - showing they were out of the country would be good...


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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Kieran_e1
post Thu, 28 Mar 2019 - 21:57
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QUOTE (Jlc @ Thu, 28 Mar 2019 - 21:21) *
Sorry, I missed it was Scotland.

They can only pursue the driver. They would have to show the defendant was driving - showing they were out of the country would be good...

thank you , that was my understanding.

do you happen to know the relevant statue or case law?
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Kieran_e1
post Mon, 22 Jul 2019 - 10:38
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just to keep a progress update for anyone else in the future. the courts kicked the case to arbitration run by the law school of the local university.

evidence was submitted by the owner of the defense on which they intended to rely and the arbitrator then punted it back to the courts to deal with without even having a hearing/meeting.

The solicitor for horizon have then asked the vehicle owner to resubmit all the same details they did at outset

no further dates or movement have since happened.
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ostell
post Mon, 22 Jul 2019 - 16:14
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How did it get to court, presuming UK small claims when you are in out of jurisdiction in Scotland ?

What was your defence

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Kieran_e1
post Mon, 22 Jul 2019 - 19:27
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QUOTE (ostell @ Mon, 22 Jul 2019 - 17:14) *
How did it get to court, presuming UK small claims when you are in out of jurisdiction in Scotland ?

What was your defence

it was straight to a small claims case.

It wasn't me smile.gif

as above, the owner has never used the car park in question and could prove he was abroad at some of the times quoted

ironically, a letter arrived today from small claims court suggesting parties try and reach an agreement or else a date will be set for september.



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Spudandros
post Tue, 23 Jul 2019 - 07:54
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QUOTE (ostell @ Mon, 22 Jul 2019 - 17:14) *
How did it get to court, presuming UK small claims when you are in out of jurisdiction in Scotland ?

What was your defence


Horizon have been pursuing a few cases in Scotland. It's called Simple Procedure. It's likely Mellicks who are working for them. The have a couple of wins under their belt. OP the judge may ask who the driver was. You don't want to look evasive so be careful how you answer. If you were out of the country you could say you don't know but you'll then probably be asked for a list of all people who could have driven it. Take one with you on the day to show the judge if asked.

This post has been edited by Spudandros: Tue, 23 Jul 2019 - 08:01
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ostell
post Tue, 23 Jul 2019 - 08:35
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The OP is saying small claims and not simple procedure so how did it even get to small claims when out of jurisdiction?
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Spudandros
post Tue, 23 Jul 2019 - 12:46
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QUOTE (ostell @ Tue, 23 Jul 2019 - 09:35) *
The OP is saying small claims and not simple procedure so how did it even get to small claims when out of jurisdiction?


I'm guessing he's simplifying. Simple Procedure replaced Small Claims in Scotland year before last. I guess some people still refer to it as "small claims"

This post has been edited by Spudandros: Tue, 23 Jul 2019 - 12:47
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Kieran_e1
post Tue, 23 Jul 2019 - 21:40
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QUOTE (Spudandros @ Tue, 23 Jul 2019 - 08:54) *
QUOTE (ostell @ Mon, 22 Jul 2019 - 17:14) *
How did it get to court, presuming UK small claims when you are in out of jurisdiction in Scotland ?

What was your defence


Horizon have been pursuing a few cases in Scotland. It's called Simple Procedure. It's likely Mellicks who are working for them. The have a couple of wins under their belt. OP the judge may ask who the driver was. You don't want to look evasive so be careful how you answer. If you were out of the country you could say you don't know but you'll then probably be asked for a list of all people who could have driven it. Take one with you on the day to show the judge if asked.

on what basis did they win? were they able to identify the owner was the driver or compel the information somehow?


the owner of the vehicle has already stated to horizon 6 people are insured and have regular use of the vehicle ( which is true and verifiable) and provided the details that he was abroad for several of the instances quoted.

can the judge compel this information? the owner of the vehicle has use of and owns another vehicle. he can also prove he was not at the location at any of the times specified ( or any other for that matter )

This post has been edited by Kieran_e1: Tue, 23 Jul 2019 - 21:47
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Spudandros
post Tue, 23 Jul 2019 - 22:19
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QUOTE (Kieran_e1 @ Tue, 23 Jul 2019 - 22:40) *
on what basis did they win? were they able to identify the owner was the driver or compel the information somehow?


the owner of the vehicle has already stated to horizon 6 people are insured and have regular use of the vehicle ( which is true and verifiable) and provided the details that he was abroad for several of the instances quoted.

can the judge compel this information? the owner of the vehicle has use of and owns another vehicle. he can also prove he was not at the location at any of the times specified ( or any other for that matter )


One was heard on papers. In Scotland it's the judges decision whether or not a hearing takes place. The second one the defendant caved in after a grilling by the judge at CM. He was ordered to present a list of all drivers to court but the ordeal proved too much and he paid. Both defences were "driver not identified: multiple drivers"

This post has been edited by Spudandros: Tue, 23 Jul 2019 - 22:22
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nosferatu1001
post Wed, 24 Jul 2019 - 08:31
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A court can "compel" by asking the witness questions.
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Kieran_e1
post Wed, 24 Jul 2019 - 15:16
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QUOTE (Spudandros @ Tue, 23 Jul 2019 - 23:19) *
QUOTE (Kieran_e1 @ Tue, 23 Jul 2019 - 22:40) *
on what basis did they win? were they able to identify the owner was the driver or compel the information somehow?


the owner of the vehicle has already stated to horizon 6 people are insured and have regular use of the vehicle ( which is true and verifiable) and provided the details that he was abroad for several of the instances quoted.

can the judge compel this information? the owner of the vehicle has use of and owns another vehicle. he can also prove he was not at the location at any of the times specified ( or any other for that matter )


One was heard on papers. In Scotland it's the judges decision whether or not a hearing takes place. The second one the defendant caved in after a grilling by the judge at CM. He was ordered to present a list of all drivers to court but the ordeal proved too much and he paid. Both defences were "driver not identified: multiple drivers"

that's interesting, even though POFA doesn't apply??

I'm assuming that in these cases there was no credible evidence to support the multiple drivers defense? As stated the vehicle owner has already provided details of when they were overseas as well as the list of all other regular drivers.

I'm assuming the credibility of the owner will also lay weight ( other otherwise ) to such a defense.

do you have links for the judgements?



QUOTE (nosferatu1001 @ Wed, 24 Jul 2019 - 09:31) *
A court can "compel" by asking the witness questions.

i get that but as far as I understand it , and I am happy to be corrected here, there is no legal requirement for the owner to name the driver ( unlike a council or police request )

so surely sticking to the "I don't know I was out the country line " should be sufficient? especially when there is proof to support this claim and it's not just someone chancing their arm?
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ManxRed
post Wed, 24 Jul 2019 - 15:26
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There is no legal requirement to name the driver, but if the defendant merely keeps repeating that, when faced with a question of 'were you the driver', then the judge might just form the opinion that the evasiveness equates to an assumption on the balance of probabilities that they were the driver. Of course, that situation doesn't happen too often, but I guess it could.

Saying you weren't the driver, and producing evidence, gives the judge far less wriggle room in making such an assumption!


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nosferatu1001
post Wed, 24 Jul 2019 - 16:41
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If the court says "were you the driver" and you refuse to answer, when you're a witness, you have issues. Legal ones.

If instead you just state "no, and here is the list of possible drivers given to the C on xxyyzz date, and here is proof 8 couldn't have driven which the c also had on date" it looks a tad better, don't you Think?

The court cannot require you to name a single driver as there is no s172 equiv for you to be pursued under.
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Glacier2
post Wed, 24 Jul 2019 - 20:16
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Can you send a solicitor instead? Is there any legal requirement for the defendant to show up in person?
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