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County Court Claim Form Link Parking/Gladstone, Threads merged
Fudge05
post Mon, 28 May 2018 - 14:59
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Hello hope you are all enjoying your bank holiday. I was wondering if you could help. I have received county court claim form from link parking and Gladstone solicitors. I have submitted the acknowledgment of service. Now I need to draft a defence. The driver was parked at a friends place where they have a number of visitor spaces but a visitor permit was not displayed. Being as it was Boxing Day it shouldn’t matter but how wrong!

Please could you point me in the right direction on any useful defence statements. I have tried looking on google maps for the signs but I can’t find it on there. I may have to go back on site and take a picture myself.

I have a week to draft my statement as the claim form dated 1st may. sad.gif

This post has been edited by Fudge05: Mon, 28 May 2018 - 15:07
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post Mon, 28 May 2018 - 14:59
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kommando
post Mon, 28 May 2018 - 15:04
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You need a copy of the lease for your friends property as this is normally of benefit as PPC signs cannot overrule a contract that has primacy, also edit your post and refer only to 'the driver' and 'the keeper'.
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Fudge05
post Mon, 28 May 2018 - 15:09
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Thank you I have edited. However slight issue is that my friend has moved out and don’t live there anymore. Is there anything else I can do without this?
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kommando
post Mon, 28 May 2018 - 15:15
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I think you can get a copy of the lease for a small fee at the Land registry.

To advise more then more details are required such as signs and paperwork.

Read this

http://parking-prankster.blogspot.co.uk/20...al-parking.html
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Fudge05
post Mon, 28 May 2018 - 15:42
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Hi I have attached copy of county court form.


This post has been edited by Fudge05: Mon, 28 May 2018 - 15:45
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Eljayjay
post Mon, 28 May 2018 - 19:24
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Did you receive a notice to keeper?

Did you receive a letter before claim?
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Fudge05
post Mon, 28 May 2018 - 22:09
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QUOTE (Eljayjay @ Mon, 28 May 2018 - 20:24) *
Did you receive a notice to keeper?

Did you receive a letter before claim?


Yes I received the notice to keeper but ignored it. I did not receive a letter before claim however.

Any assistance on where to look for drafting my defence would be much appreciated.
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SchoolRunMum
post Mon, 28 May 2018 - 22:50
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Read the second post here, all about defence stage, with examples:

https://forums.moneysavingexpert.com/showth...d.php?t=4816822

You have done the AOS online, so now you need to copy & adapt a decent defence. We do see almost every case won, here & on MSE.

Also search both forums for the keywords 'Link claim' or Link defence' and read a load who've been there, done that.

Crib from those. Show us!

This post has been edited by SchoolRunMum: Mon, 28 May 2018 - 22:52
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Fudge05
post Fri, 1 Jun 2018 - 18:07
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Hi
I have managed to take a picture of the sign. The sign doesn’t mention anything about link parking. I would appreciate any advise where I stand please?



I need to draft my defence by tomorrow and would appreciate any assistance whatsoever. Getting a copy of the lease is out the question as my friend has moved away and I don’t really want to bother her as she has quite a busy lifestyle as it is.
My defence will focus on
1. I was not the driver
2. The contract was with the landowner and link parking are not the owners of the land
3. Signs are misleading

Let me know what you think?
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nosferatu1001
post Fri, 1 Jun 2018 - 18:11
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That the Sign is perfect

No offer of a contract from the claimant, but someone else entirely.
Any supposed contract with the landowner makes no mention of a charge.

Have you done what SRM TOLD YOU TO DO, directly above? Show us the defence you found, but you MUST ensure that there is reference to the FACT that the sisgnage makes no mention of the claimant.

Is there any other signage there?
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Fudge05
post Fri, 1 Jun 2018 - 18:31
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No other signs , this was the only sign and it wasn’t entirely obvious when entering the car park as it was facing the other way.
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nosferatu1001
post Fri, 1 Jun 2018 - 18:34
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Again, did you do what you were told, three days ago?
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Fudge05
post Fri, 1 Jun 2018 - 18:40
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I am going to be working on my defence tonight. I needed to get a copy of the signs first to see where I stood and have only managed to go out there today. Now I know what I am working with, it makes it easier for me to search through relevant threads.
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ostell
post Fri, 1 Jun 2018 - 21:58
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I would suggest that this is a prohibitive sign in that there is no offer of parking to non permit or ticket holders and therefore no contract possible and claiming for a breach of an alleged parking contract is perverse

And again as has been pointed out by Nosferatu it matters not what the sign actually says, Link parking are strangers to any alleged contract.

Perhaps a photo showing how unovious the sign is toa driver entering the car park?

This post has been edited by ostell: Fri, 1 Jun 2018 - 22:01
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nosferatu1001
post Sat, 2 Jun 2018 - 00:00
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The actual contents of the sign I would put waaaaay down the list

The fact, undeniable, is that the C is a complete stranger. They are not mentioned on the ONLY sign, and thus you should write to them, stating you expect them to discontinue within 7 days ( or how long it is you have to submit a defence?) saying if they dint, you will counterclaim for harassment and misuse of data in excess of £500. You will take £250 now. If you don't have time to do that, JUST do the defence, and QUICKLY
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Eljayjay
post Sat, 2 Jun 2018 - 00:22
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In you defence, request that the claim should be struck out because the claimant did not send a letter of claim to you as required in the Pre-Action Protocol for Debt Claims.
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Fudge05
post Sat, 2 Jun 2018 - 03:37
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thank you for all your help. appreciate the support from this Group and ever so grateful.
So I have been working on my statement all night wacko.gif sad.gif wacko.gif
see below, I would appreciate your comments and if you feel I need to add anything more or take certain paragraphs out.
also can I check if the particular of claims is the same as the court claim form?
off to bed now closedeyes.gif


I am the defendant in this matter and deny liability for the entirety of the claim. The Claimant has no cause of action against the Defendant on the following grounds

1. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all.

2. The defendant neither admits nor denies that he was the driver. It remains for the claimant to prove its case. Nevertheless, Link Parking have pursued the Defendant on the basis of Keeper Liability (under POFA 2012), but have not met the conditions to do so.

(i) Failure to comply with the procedural requirements of POFA 2012. No evidence has been supplied by the Claimant as to who parked the vehicle. The Defendant did not wish to, and was under no legal obligation to, provide the name of the driver to the Claimant.

(ii) Keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4. For the Claimant to recover the parking charge from the Defendant, the Claimant must have followed the strict requirements in the PoFA 2012 Schedule 4, which provides that liability can be transferred from driver to keeper. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption.


3. The proper claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Link Parking Ltd.

(i) Link Parking Ltd are not the lawful occupier of the land.
(ii) The parking signs on site state that the land is ‘managed by Royal Crescent (Cheltenham) Management Company Ltd’. The claimant has failed to establish their legal rights to bring a claim either as the landowner or the agent of the landowner.
(iii) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
(iv) It is the defendant’s belief that the terms in the car park were ambiguous due to their being more than one owner of the site. Furthermore, ‘free’ parking is available for those who live in the area or those using the services of businesses residing in that area i.e. GP Surgery, Café, Solicitor office etc. Yet for others, it is pay and display on certain days, and in some circumstances it seems a permit is required. It is unclear which terms apply to which bays, and what the situation was on the alleged date. The claimant has not made it clear what the contravention was i.e. no permit or no payment nor whether the driver was a patron to a business or visiting a resident, and how that person allegedly breached a term.

4. The claimant has not specified on their claim form whether their claim is for a contractual fee (consideration) or for breach of contract. If the claim is for a contractual fee, this is disputed as the contract would require offer, acceptance and consideration both ways. There is no consideration from Link Parking to the motorist. The car park is free, and even if it were not, Link Parking do not own the land in question and the gift of parking is not theirs to provide.

5. Insufficient signage
(i) The claimant did not display clear signs within the site that were capable of being read and/or form a contract as drivers can enter the car park without seeing the sign due the lack of prominent signage at the entrance of the parking area. The signs within the car park are difficult to see or read inside the car. This is an unfair contract, not agreed by the driver and contrary to The Unfair Terms in Consumer Contracts Regulations (2015).
(ii) The signage did not meet the British Parking Association (BPA) code of practice or the independent Parking Committee (IPC) code of practice. Therefore no contract has been formed with the driver and the notice does not provide the adequate notice of the parking charge which is mandatory under Schedule 4 of the POFA.
(iii) 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 and the ticket was issued illegally. 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.
(iv) I would also like to draw your attention to Link Parking v Mr L C9GF5875 [2016] where it was found that there was no entrance sign at a residential site and as a result the case was dismissed.
(v) The claimant is put to strict proof that at the time of the alleged event, they had both advertisement consent and the permission from the site owner to display the signs.


6. The Claimant cannot recover additional charges as the Defendant has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as 'legal expenses'. These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

7. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
(i) The Claimant has no commercial justification
(ii) The Claimant did not follow the IPC or BPA Code of Practice
(iii) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
(iv) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

8. The Claimant did not send a Letter Before Action to the defendant that complied with the practice direction on pre-action conduct meaning the Defendant could not compile a Formal Response. The letter Before Action can be seen to miss the following information:
(i) a clear summary of the facts which the claim is based on;
(ii) a list of the relevant documents on which their client intends to rely;
(iii) how the charge amount of ‘£238.16p’ has been calculated and justified.

9. The Particulars of Claims fails to fulfil CPR16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description. The defendant also believes there has been a similar Particulars of Claims dismissed at another court, and suggest they are simply robo-filing. Given the above the defendant denies any liability whatsoever to the Claimant, that is the £238.16 shown on the claim form, and therefore asks the court to strike the claim on these grounds.

10. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances no signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum. The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield).

The defendant invites the court to strike out the claim for failure to comply with CPR 16.4. In the alternative, the defendant requests the court to order the claimant to provide further and
better particulars of claim and comply with the CPR 31.14 and permit the defendant to amend his defence as appropriate.

I confirm that the contents of this statement are true to the best of my knowledge and belief.
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ostell
post Sat, 2 Jun 2018 - 07:11
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Your first point has got to be the fact that there can be no contract with the claimant as their name was not on the sign, only that of another. The claim should therefore be dismissed as the claimant has no cause for action.

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Fudge05
post Sat, 2 Jun 2018 - 11:04
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Thanks, I have amended the statement. see point 3 below, is this ok? please can someone check that it is ok as I need to submit this today.


I am the defendant in this matter and deny liability for the entirety of the claim. The Claimant has no cause of action against the Defendant on the following grounds

1. It is admitted that the Defendant is the registered keeper of the vehicle in question. However, the Defendant denies that he is liable to the Claimant either as alleged in the Particulars of Claim or at all.

2. The defendant neither admits nor denies that he was the driver. It remains for the claimant to prove its case. Nevertheless, Link Parking have pursued the Defendant on the basis of Keeper Liability (under POFA 2012), but have not met the conditions to do so.

(i) Failure to comply with the procedural requirements of POFA 2012. No evidence has been supplied by the Claimant as to who parked the vehicle. The Defendant did not wish to, and was under no legal obligation to provide the name of the driver to the Claimant.

(ii) Keeper liability has not passed in accordance with Protection of Freedoms Act 2012 Schedule 4. For the Claimant to recover the parking charge from the Defendant, the Claimant must have followed the strict requirements in the PoFA 2012 Schedule 4, which provides that liability can be transferred from driver to keeper. The Claimant has failed to meet the conditions of the Act and has never acquired any right to pursue the Defendant in this capacity if it cannot identify the driver. This distinguishes the case from Elliott v Loake [1982] in which there was irrefutable evidence of the driver’s identity. PoFA 2012 Schedule 4 has not been complied with and the claimant may not quote reasonable assumption.

3. The sign does not state the name of the company issuing the Parking Charge Notice. Therefore, there can be no contract with the claimant as their name was not on the sign. The claim should therefore be dismissed as the claimant has no cause for action.


4. The proper claimant is the landholder. Strict proof is required that there is a chain of contracts leading from the landholder to Link Parking Ltd.

(i) Link Parking Ltd are not the lawful occupier of the land.
(ii) The parking signs on site state that the land is ‘managed by Royal Crescent (Cheltenham) Management Company Ltd’. The claimant has failed to establish their legal rights to bring a claim either as the landowner or the agent of the landowner.
(iii) Absent a contract with the lawful occupier of the land being produced by the claimant, or a chain of contracts showing authorisation stemming from the lawful occupier of the land, I have the reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no right to bring action regarding this claim.
(iv) It is the defendant’s belief that the terms in the car park were ambiguous due to their being more than one owner of the site. Furthermore, ‘free’ parking is available for those who live in the area or those using the services of businesses residing in that area i.e. GP Surgery, Café, Solicitor office etc. Yet for others, it is pay and display on certain days, and in some circumstances it seems a permit is required. It is unclear which terms apply to which bays, and what the situation was on the alleged date. The claimant has not made it clear what the contravention was i.e. no permit or no payment nor whether the driver was a patron to a business or visiting a resident, and how that person allegedly breached a term.

5. The claimant has not specified on their claim form whether their claim is for a contractual fee (consideration) or for breach of contract. If the claim is for a contractual fee, this is disputed as the contract would require offer, acceptance and consideration both ways. There is no consideration from Link Parking to the motorist. The car park is free, and even if it were not, Link Parking do not own the land in question and the gift of parking is not theirs to provide.

6. Insufficient signage
(i) The claimant did not display clear signs within the site that were capable of being read and/or form a contract as drivers can enter the car park without seeing the sign due the lack of prominent signage at the entrance of the parking area. The signs within the car park are difficult to see or read inside the car. This is an unfair contract, not agreed by the driver and contrary to The Unfair Terms in Consumer Contracts Regulations (2015).
(ii) The signage did not meet the British Parking Association (BPA) code of practice or the independent Parking Committee (IPC) code of practice. Therefore no contract has been formed with the driver and the notice does not provide the adequate notice of the parking charge which is mandatory under Schedule 4 of the POFA.
(iii) 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 and the ticket was issued illegally. 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.
(iv) I would also like to draw your attention to Link Parking v Mr L C9GF5875 [2016] where it was found that there was no entrance sign at a residential site and as a result the case was dismissed.
(v) The claimant is put to strict proof that at the time of the alleged event, they had both advertisement consent and the permission from the site owner to display the signs.


7. The Claimant cannot recover additional charges as the Defendant has the reasonable belief that the Claimant has not incurred the stated additional costs and it is put to strict proof that they have actually been incurred. Even if they have been incurred, the Claimant has described them as 'legal expenses'. These cannot be recovered in the Small Claims Court regardless of the identity of the driver.

8. The amount is a penalty, and the penalty rule is still engaged, so can be clearly distinguished from ParkingEye v Beavis which the Judges held was 'entirely different' from most ordinary economic contract disputes for the following reasons:-
(i) The Claimant has no commercial justification
(ii) The Claimant did not follow the IPC or BPA Code of Practice
(iii) The Claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
(iv) The amount claimed is a charge and evidently disproportionate to any loss suffered by the Claimant and is therefore unconscionable.

9. The Claimant did not send a Letter Before Action to the defendant that complied with the practice direction on pre-action conduct meaning the Defendant could not compile a Formal Response. The letter Before Action can be seen to miss the following information:
(i) a clear summary of the facts which the claim is based on;
(ii) a list of the relevant documents on which their client intends to rely;
(iii) how the charge amount of ‘£238.16p’ has been calculated and justified.

10. The Particulars of Claims fails to fulfil CPR16.4 because it does not include a statement of the facts on which the claimant relies, only referring to a Parking Charge Notice with no further description. The defendant also believes there has been a similar Particulars of Claims dismissed at another court, and suggest they are simply robo-filing. Given the above the defendant denies any liability whatsoever to the Claimant, that is the £238.16 shown on the claim form, and therefore asks the court to strike the claim on these grounds.

11. The claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet such an assertion is not supported by any similarity in the location, circumstances no signage. Absent any offer or agreement or even any licence to park without a permit, the Beavis case does not assist the claimant and in fact, supports my defence. If the driver on the date of the event was considered to be a trespasser if not allowed to park there, then only the landowner can pursue a case under the tort of trespass, not this Claimant. As the Supreme Court in the Beavis case held, ParkingEye would not have been able to recover any sum without agreement on the charge and any issue of trespass would be limited to the landowner themselves claiming for a nominal sum. The amount claimed is an extravagant and unconscionable penalty. Even if all the conditions had been met to disengage the penalty, the Supreme Court in ParkingEye v Beavis was only prepared to accept a charge (£85) that was sufficient to act as a disincentive and that was worth collecting. The Supreme Court had previously stated that £135 would be unacceptable (ParkingEye v Somerfield).

The defendant invites the court to strike out the claim for failure to comply with CPR 16.4. In the alternative, the defendant requests the court to order the claimant to provide further and
better particulars of claim and comply with the CPR 31.14 and permit the defendant to amend his defence as appropriate.

I confirm that the contents of this statement are true to the best of my knowledge and belief.
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ostell
post Sat, 2 Jun 2018 - 11:34
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put 3) as item 2). The sign does not include the name of the claimant but another company. There cannot, therefore, be any contract made with the claimant and the claimant is indeed a stranger to any alleged contract that may exist. etc.

As the first point the judge might be happy to throw the case out on the first point they read.

Then follow with if a contract is held to be in existence it is with the driver of the vehicle and the claimant has failed to comply with POFA and has lost the any right to hold the keeper liable.

Just trying to keep it in a logical sequence:
No contract with the claimant
If held there is a contract it is with the driver
The claimant has not shown their rights to be able to create a contract rather than landowner
If held that a contract with the driver exists then there can be no keeper liability because of POFA failure.
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