Gladstones: Letter before Claim Options

[crox]

So the letter below came across my desk. The original charge notice was ignored by the driver at the time (company car, leased), as were the original letters.

Given I have plenty of other things to do, entering a defence on court action doesn't particularly thrill me. I understand that the contract is with the driver, but clearly have no wish for the company to be involved, but neither do I want to involve the driver.

Any valued advice greatly appreciated!

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[crox]

Fab
Now explain which sections of POFA that fails, and why
As you will need to do so competently in any defence.

Well ... it falls foul of requirements of paragraph 13(2) b) & c), in that no copy of hire agreement and statement of liability has been provided, therefore also falling foul of 13(3) a). 14(2) a) also requires the inclusion of the Notice to Keeper.

As such, the lack of NTK, means that 14(5) b) is not fulfilled, as the only comment is that the NTK contains full details of the charge, without no further details given.

Anything else I have missed?

[nosferatu1001]

Then you have to linkt hat into the res tof POFA to show this is a necesasary step for them to follow to gain this
Step by stpe, logical sequence, hand holding all the way.

[crox]

Then you have to link that into the rest of POFA to show this is a necessary step for them to follow to gain this
Step by step, logical sequence, hand-holding all the way.

Yes, that is true. Is there a resource that I can use to brush up on that. I completely understand and are confident about why they fall foul of the various parts, but probably want to be clearer on the bigger picture.

[ostell]

For a notice to hirer the failure is 14 (2). Paragraph 13 is referring to the actions that the hire company must make to remove liability from themselves.

[crox]

so, this is the proposed response - any comments? I thought to keep it simple, rather than particularly expansive. Is there value in commenting that it doesn't meet Pre-action Protocol for Debt Claims?

---

The Defendant is THE COMPANY and it is admitted that the company is the registered keeper of the vehicle. There is no clear cause of action shown in the Particulars of Claim and liability for this charge, or any sum at all claimed by this Claimant, is denied for the following reasons:

1). THE COMPANY is the registered keeper of the vehicle. ‘Keeper liability’ under Schedule 4 of the Protection of Freedoms Act 2012 (“the POFA”) is dependent upon full compliance with that Act. It is submitted that the Claimant’s Parking Charge Notice and/or Notice to Keeper failed to comply with the statutory wording and/or deadlines set by the POFA. Any non-compliance voids any right to ‘keeper liability’.

2). As a body corporate, THE COMPANY could not have been the driver of the vehicle so cannot be held liable ‘as driver’ either. Further, there is also no possibility of vicarious liability by THE COMPANY to the Claimant, since there was no omission, contravention nor breach of contract by the driver.

3). Even if the Defendant company is found to be liable under the POFA 2012, that law only permits a claimant to recover no more than the sum stated on the PCN. It is submitted that any added fees are simply numbers made up out of thin air, and are an attempt at double recovery by the Claimant, which would not be recoverable in any event.

4). The Claimant may try to rely upon ParkingEye Ltd v Beavis [2015] UKSC 67, ('the Beavis case') yet in this case the Defendant was the driver (not so here). Furthermore, unlike the Beavis case, the Claimant offered no licence to park if ‘unauthorised’ (which is denied). A purported licence to park in exchange for payment of a ‘charge’ on the one hand, cannot be offered when that conduct is, on the other hand, expressly prohibited.

5). It is submitted that the Claimant is merely an agent acting ‘on behalf of’ the landowner who would be the only proper claimant. Strict proof is required of a chain of contracts leading from the landowner to this Claimant, to allow them the right to form contracts and to sue in their name. Even if this is produced, it is submitted that the alleged 'unauthorised' parking (denied) can only be an event falling under the tort of trespass. As was confirmed in the Beavis case, ParkingEye could not have claimed any sum at all under this tort, whereby only a party in possession of title in the land could claim nominal damages suffered (and there were none).

6). It is submitted that the conduct of the Claimant in pursuing this claim is wholly unreasonable and vexatious. As such, THE COMPANY is keeping a note of wasted time and costs so far in dealing with this matter, with a view to claiming the loss to the company of at least half a day's work for myself or another employee/Director, and travel/parking costs and any other expenses for attending any hearing as witness for the Defendant.

7). The court is invited to strike out the claim, due to no cause of action nor prospects of success.

8). The facts and information in this defence are true and the Defendant company is not liable for the sum claimed, nor any sum at all. The employee submitting this defence works for, and is authorised to submit this defence by THE COMPANY.

[ostell]

(1) The company is NOT the registered Keeper of the vehicle, that's the hire company. You company are the hirers/Keepers Be specific about the failures. add: The Claimant cannot transfer liability to the the keeper as they have failed to meet the strict conditions required of POFA by, in particular but not limited to, failing to supply the additional documentation required by section 14 (2).

(2) I would not mention vicarious liability, don't suggest it to them if it's not mentioned already.

(3) no more than the sum stated on the original PCN


First use of PCN then define it Parking charge Notice (PCN)

[crox]

(2) I would not mention vicarious liability, don't suggest it to them if it's not mentioned already.

I should still keep the second part in though (?), as part of the WS would be that the alleged offence occurred out of normal office hours, and therefore could not have been conducting company business.

[nosferatu1001]

2) Yes, but you didnt actually say that!

You didnt at any point deny that this was as part of company business
To detonate Agent liabiltiy you need to make it clear that any driver was not acting under any company directive, that this was clearly the driver going about their own, private business, etc.

[crox]

2) Yes, but you didnt actually say that!

You didnt at any point deny that this was as part of company business
To detonate Agent liabiltiy you need to make it clear that any driver was not acting under any company directive, that this was clearly the driver going about their own, private business, etc.

So in layman's language:

The Claimant has claimed that the vehicle was parked at or around 2X:XX, which is outside of normal office working hours. The COMPANY’s office hours are between 08:00 & 18:00, and has no clients in or around this location, therefore we assert that the driver was not conducting company business during those hours, therefore the COMPANY cannot be held liable.

Is there more suitable language or case law to mention?

[ostell]

What they will allude to is CPS v AJH Films so read that and head it off before it starts.

[nosferatu1001]

No, you still havent said it clearly enough

"The Claimant may try to claim that the unnamed driver was acting under the authority of the Defendant (you are the defendant as company, you are alwys the defendant EXCEPT in the title where the companty is mentioned and named as defendant) however the Defendant has never ordered any of their drivers to be at those premises at that time, which is after normal working hours and at a time of day where the defendant would be unable to require any of their drivers to go about specific business.
The claimant may suggest CPS v AJH films is relevant, however that relied upon the Principal company ordering the driver to visit the prmeises. No such order exists here.

[crox]

No, you still havent said it clearly enough

"The Claimant may try to claim that the unnamed driver was acting under the authority of the Defendant (you are the defendant as company, you are alwys the defendant EXCEPT in the title where the companty is mentioned and named as defendant) however the Defendant has never ordered any of their drivers to be at those premises at that time, which is after normal working hours and at a time of day where the defendant would be unable to require any of their drivers to go about specific business.
The claimant may suggest CPS v AJH films is relevant, however that relied upon the Principal company ordering the driver to visit the prmeises. No such order exists here.

Much better wording

I'll put up the final wording but is there value in commenting regarding failure to observe Pre-action Protocol for Debt Claims as earlier in this thread?

[nosferatu1001]

Yes, a single line staing they failed to do so, and a short precvis of what went wrong. No letter at all, or they were corresponding but filed a claim anyway, etc.

[crox]

I forgot to add the parking sign previously ... Beavis doesn't apply here does it?



This post has been edited by crox: Tue, 16 Oct 2018 - 11:46

[nosferatu1001]

Beavis rarely applies.
Needs to be a free car park requiring a turn over that was being abused by eg commuters.

[crox]

*UPDATE*

So the other side have decided to continue to proceed with the claim, so have sent over their DQ.

They have advised that they intend to request a special direction that the case be dealt with on the papers and not without an oral hearing. Heeding advice from here, that should be avoided.

They have quoted PD27 (2.4) and the N159 form. How do I go about refusing the case based on papers?

In terms of court. If it is actually local to the Claimant, then they are local to us, but is there any chance that it will be actually be local to the solicitors, if so, that isn't local!

Thanks again for all your help on this!

[ostell]

Here's a sample rebuttal of the request for a paper hearing. Modify it to suit.

(Claim number): (****** v ******)
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.

[crox]

Thanks. We are definitely not an individual though, but rather a company. I guess that changes it somewhat!

[Jlc]

The claimant has the choice of court. (Unlike a consumer)

[Redivi]

He It 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.