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Not registered keeper or driver
YorkshireLass
post Thu, 22 Feb 2018 - 22:20
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I've received a CCJ regarding non-payment of a PCN and need to submit a Defence in order to get it Set Aside and was hoping someone may be able to help me with framing my argument please? It's slightly unusual in that i was neither keeper nor driver of the vehicle.

The PCN was incurred by a car using a space allocated to my flat. The car belonged to a visitor to our flat and we thought we were entitled to use the space (and had not been advised permits were needed). I wrote to the parking company to try and explain the situation (stupid, i know) and moved out of the flat not long after. The keeper/driver of the vehicle heard nothing more about the PCN so we assumed it had gone away, but I found out that a CCJ had been filed against me a couple of years later. I've now gone to court and the judge ruled it would be set aside if i submit a Defence.

Presumably my defence should be based around the POF Act, but do I need to rely on any other bits of legislation or will pointing out that there was no Notice to Keeper be sufficient?

I'd be really grateful for any help you can provide.
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post Thu, 22 Feb 2018 - 22:20
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freddy1
post Thu, 22 Feb 2018 - 22:27
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edited

This post has been edited by freddy1: Thu, 22 Feb 2018 - 22:43
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ostell
post Fri, 23 Feb 2018 - 08:29
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The defence is simply that you were not liable for the debt as you were neither the driver nor the keeper of the car. It looks as though the parking company, on receipt of your letter, have simply assumed that you were the driver or keeper of the car without applying for the details from the DVLA. You ask them to show why they believe that you were liable.

Have you got any of the paperwork connected with the original PCN?

Get you friend to contact the DVLA and ask them who requested the details of the registered keeper at the time, though it may be too late. The email address is on the forum. It will have to be your friend as they are the only person entitled to that data. If they failed to request the details then they have made a serious error.

There has been a similar case before on the forum.

This post has been edited by ostell: Fri, 23 Feb 2018 - 08:30
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YorkshireLass
post Fri, 23 Feb 2018 - 08:50
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Thanks for your reply. I have none of the paperwork unfortunately - i moved out of the flat not long after and my flatmates did not redirect what they thought was junk mail.
I hadn't realised you could contact the DVLA for that info. We'll do that. Thank you.
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ostell
post Fri, 23 Feb 2018 - 09:17
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Have you got details of the original Particulars of Claim ?
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nosferatu1001
post Fri, 23 Feb 2018 - 10:17
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Indeed, there is a simple defence there: you cannot have liability, as you were neither the driver nor the day to day keeper of the vehicle.
The C has erred by failing to approach the DVLA for RK details.

You should have had the set asied granted automatically - a failure to serve papers is an auto set aside, and if they didnt bother to check for a new address after 2 years of no contact, then they WOULD HAVE HAD reasonable doubts the address was correct, and so SHOULD HAVE confirmed it through a tracing service.
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Redivi
post Fri, 23 Feb 2018 - 10:31
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I've been pursued by another parking company and its solicitor that have misread an email

They've gone quiet for a couple of months
Time to rattle the cage and ask what they're planning
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YorkshireLass
post Fri, 23 Feb 2018 - 10:33
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This was all I have been supplied with regarding their case:

Particulars of Claim:
-- DATE -- DESCRIPTION - AMOUNT - DUE DATE 04/07/15 ************ £130 01/08/15 TOTAL DUE - £130 AND THE CLAIMANT CLAIMS THE CLAIMANT CLAIMS THE SUM OF £144.08 FOR PARKING CHARGES AND INDEMNITY COSTS IF APPLICABLE INCLUDING £14.08 INTEREST PURSUANTTO S.69 OF THE COUNTY COURTS ACT 1984 RATE 8.00% PA FROM DATES ABOVE TO 07/12/16 SAME RATE TO JUDGMENT OR (SOONER) PAYMENT DAILY RATE TO JUDGMENT £0.03 TOTAL DEBT AND INTEREST £144.08


When I had the hearing to Set Aside, the Judge ordered that I had to submit a “properly pleaded Defence to the claim” by the end of the month and if I do so, the CCJ will be set aside.

Currently my Defence is as follows:
1. The Defendent is not, nor ever has been, the Registered Keeper of the vehicle
2. The Defendent was not the driver of the vehicle at the time of the incident
3. The Claimant failed to identify the Registered Keeper of the vehicle (as per Schedule 4 of the POFA 2012) and instead obtained the Defendant’s details from a letter challenging the PCN (copy enclosed) in which the Defendant stated the vehicle belonged to ‘a visitor to the flat’.

Do I need to submit more of a Defence than this? Would a witness statement be helpful? And, aside from the letter I mentioned, do I need to submit any more evidence?

This post has been edited by YorkshireLass: Fri, 23 Feb 2018 - 12:27
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nosferatu1001
post Fri, 23 Feb 2018 - 11:03
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POFA talks about Keeper, not RK
So for 1 state you were not RK OR Keeper.

Yes, you need more. Because that is a set of facts, NOT a defence. A defence is a LEGAL ARGUMENT

You need a WS as well, as this is then evidence.

You state "the C has never acquired any rights to pursue the defendant as the defendant is not and never has been the keeper, registered keeper, or driver of the vehicle in question. The C was aware of this having taken details of the D from an appeal letter which confirmed the vehicle belonged to a visitor to the flat." or similar.
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Redivi
post Fri, 23 Feb 2018 - 11:50
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I suggest you edit your post where you've left the registration number and what appears to be the Parking Notice number
Companies monitor this forum

I suggest this for a defence :

1 The Particulars of Claim disclose no details or cause of action.
If the Defendant had received the claim, he would have requested the court to strike it out as in breach of CPR 16.4 or to order the Claimant to provide Further and Better Particulars of Claim

2 The Parking Notice was issued to a third party, not the Defendant
The Claimant has never issued a Parking Notice to the Defendant

3 The Defendant has never been the vehicle's registered keeper.
Neither was he the driver of the vehicle at the time of the alleged parking incident
For the avoidance of doubt, he has never driven the vehicle or had any connection to it other than he might have ridden as a passenger on occasions

4 The Defendant has never given the Claimant any reason to believe that he was the registered keeper or driver of the vehicle
The only communication the Defendant made to the Claimant was to inform it that the location was his property and the driver was a visitor who had parked with his permission
At the time that the Defendant left the address *** weeks later, neither he nor the vehicle's registered keeper had received any reply from the Claimant

5 Notwithstanding that the Claimant has failed to identify the reason for the Parking Notice, the Defendant knows that it concerned the non-display of a permit
The parking space was the Defendant's own property and his lease imposed no requirement to display a permit or have regard to any signs placed by the Claimant
Neither was he ever informed by the letting agent/landlord of any permit scheme
He had an absolute right to use the parking space as he saw fit that included granting permission for the driver, a visitor to park on it

6 Even if the display of a permit had been required, the letting agent/management agent/ landlord that employed the Claimant had failed to make it available

7 Notwithstanding the above comments, any display of a permit would have been for the convenience of the Claimant's operative
It would not have signified any recognition that the Claimant had authority over the parking space

8 The Claimant has no locus standi in this matter.
It could not offer any contract because it could offer no consideration to a Defendant that already had the right to use his own parking space
Neither did its signs offer a contract to a party that did not possess a permit
A motorist who parks in a space without permission does not have a contract but is a trespasser
The only party with a remedy against the driver is the land-holder
In the instant case, this is the Defendant himself, not the Claimant

9 Even a cursory reading of its documents before issuing the claim would have shown the Claimant that it was pursuing the wrong party
The Defendant submits that its failure amounts to unreasonable behaviour that the Claimant compounded when it failed to follow the Government's guidance to confirm the Defendant's address
Its actions have resulted in great stress and inconvenience for the Defendant and wasted the time of the Court
The Defendant therefore invites the Court to strike out the claim as having no prospect of success and to order the Claimant to pay the costs of the set aside application
The Defendant also invites the court to have regard to the Claimant's behaviour in accordance with CPR 27.14(g) when it disposes of the other costs of the case

I believe that the facts in this defence statement are true


This post has been edited by Redivi: Fri, 23 Feb 2018 - 11:51
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YorkshireLass
post Fri, 23 Feb 2018 - 13:21
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Redivi: that Defence is amazing. Thank you so much for your help.

I’ve prepared the following witness statement. Is it helpful and necessary, or does it weaken my Defence argument?

I, *************, being the Defendant in this case will state as follows;

I make this Witness Statement in support of my defence in this claim which is due to be heard in the County Court at Sheffield.

The matters set out below are within my own knowledge, except where I indicate to the contrary.

1. A parking charge notice was issued to vehicle ******* on 4th July 2015 whilst parked in a private car park at *********
2. I am not, and never have been, the Keeper, Registered Keeper, or Driver of this vehicle.
3. At the time of this parking charge, I was a resident of Flat *********.
4. The space in which the car was parked was allocated to my flat, which I confirmed again with the building management following the issue of the parking charge [Exhibit B].
5. At no point in our tenancy had I, or my flatmates, been supplied with parking permits for use in the car park, nor had we been told how we could acquire them.
6. Visitors to the flat regularly used this space prior to July 2015 and had not been issued with fines. Furthermore, several of our neighbours’ cars did not display permits, which led us to believe that a parking permit system was no longer in operation.
7. Given the facts stated above in paragraphs 4 and 5 of this Witness Statement, I wrote a letter of appeal to Park Direct UK Ltd [Exhibit A] in support of the visitor to my flat. In this letter I confirmed the vehicle belonged to a visitor to the flat and explained the circumstances in which this infraction had mistakenly occurred.
8. The Keeper of the vehicle did not, at any point, receive a Notice to Keeper regarding this parking charge.
9. I moved out of the flat a month after the parking charge was issued and, despite leaving a forwarding address with my flatmates, letters regarding this parking charge were not redirected as they were mistakenly identified as junk mail. My flatmates also moved out of the property in November 2015 so were no longer in a position to forward mail to me. As such, I was unaware I was being pursued for this charge prior to discovering a County Court Judgement had been filed against me.


STATEMENT OF TRUTH

I believe the facts stated in this Witness Statement are true.
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nosferatu1001
post Fri, 23 Feb 2018 - 13:38
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DO NOT say "fines". Invoices. Thats all these are - invoices.

Yes this is fine.

TO be clear - exactly what has the court Ordered you to do? Bear in mind, i fyou have already been toa HEARING< you presumably gave all the above as oral evidence already? In which case you dont need to repeat it again, I dont believe.
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YorkshireLass
post Fri, 23 Feb 2018 - 14:18
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The Court has ordered that provided I “file at Court and serve on the Claimant a properly pleaded Defence” then the CCJ will be set aside.

Once I knew about the CCJ I filed the N244 form, explaining that I did not know about the CCJ because I had moved out of the address 18 months previously (having provided housing contracts as proof) and that the PCN should not have been directed at me as I was neither Keeper nor driver and that they got my details from the letter I sent (which I enclosed). At the hearing the judge asked me a little about the evidence and about why it had taken me a few months to file the N244 form after I found out about the judgement. It was clear I had not behaved as I should have done, but she said that because Park Direct had not turned up and because I met the criteria where a Judgement *may* be Set Aside (may rather than must) that if I filed a “properly pleaded Defence” it would be Set Aside. She said I should submit supporting documents as I had with the N244 form.
Essentially I think my Defence in that initial N244 form was a bit shoddy (which it was because I wasn’t sure if my argument there should have been about not knowing about the CCJ proceedings or about not being liable for the PCN) and she felt I needed to improve.
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nosferatu1001
post Fri, 23 Feb 2018 - 14:44
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The Defence is for the PARKING TICKET. It is NOTHING to do with the set aside reasons.

OK, so nowehere does it say a WS is needed. So file exactly what has been orderedd.
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kommando
post Fri, 23 Feb 2018 - 17:00
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QUOTE
file at Court and serve on the Claimant


So you send 2 copies, one to the court and another to Park Direct or their solicitors if they did the claim filing. As a back up, as the claim was filed 2 years ago, I would send one to Park Direct in case they have dropped the original solicitor so they cannot say they not received it.

CC yourself on any email so you have a copy and proof it was sent and who it was sent too, if you use the post then first class post over a post office counter and obtain proof of posting, this will be deemed delivered 2 working days after posting. Do not use recorded delivery as this can be refused leaving you will no proof of delivery and a bigger bill.
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Redivi
post Fri, 23 Feb 2018 - 17:08
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If you email, make sure you sign the defence statement

I prefer to insert a scanned signature into a Word document and convert to pdf for sending
Scanning whole pages runs the risk that the court email system will reject an oversize file

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