use the std N180 response to Parking claimforms on all like threads here.

dx

Just a question (thinking ahead)

If the notice to keeper was sent after the 14 days is it therefore unlawful

if so, is the information obtained by it (ie my daughter saying she was at the gym) unlawfully obtained?

get that N180 done...3 copies remember

no to mediation

1 wit her

the rest is obv

1 to the court

1 to CEL [minus email/phone/sig]

1 for her file

any views on post 127 above?

as the scan in post 11

it will be one of many errors you will pointout in your witness statement.

when the time comes

i have been preparing a witness statement whilst i was waiting for things to happen is it too soon to post up for checking?

you don't know when its even due yet do you as allocation has not taken place?

and ofcourse ideally you want to file after they have sent them theirs

hope they don't have your email address

as they'll do it at 1 min to midnight the day before its due.

they do have an email address but if they do that i can ask for an adjournment to read up cant i? and dont they have to send it 2 weeks before the court date or something like that

you send them an email stating quite clearly that email is not to be used to file any claim related documents

and state their address has been blocked and set to bounce all email back unread.

you should have read that numerous times by now..

everything else has been sent by snail mail (ordinary post) but i will send them that email just in case thanks for that (added to your reputation not that you needed it )

never had a ticket problem myself - so this is all new to me which im sure you can tell

the more you read the stronger we become...…..

That is true

Most of my posts were regarding bank charges (and a few reclaiming mortgage charges) but after THAT (trading standards v banks) case im pretty much useless now lol

 

If the notice to keeper was sent after the 14 days is it therefore unlawful

As they don't appear to be relying on POFA they can then fall back back on the pre POFA rules so the 14 day rule doesn't apply. That means they can only go against the driver which is why we keep repeating do not appeal too early and divulge who was driving.

It does mean though that they cannot use POFA should it go to Court.

if they are saying that pofa rules do not apply on this car park and by parking there consumers give up any rights under pofa then that should be on their signage which would probably be an unfair term.

or another way of looking at it is that at the time of sending a pcn they did not know who the driver was (and still dont - there is a 2nd named driver, has no one ever said

"i dont feel like driving today so you drive") so it could not be a notice to driver, it is not a letter asking for the drivers details as it is a request/demand for payment so it can only be a notice to keeper chasing a payment.

That can only be done via pofa and therefore you could argue that they invoked pofa rules

....so it can only be a notice to keeper chasing a payment.

Precisely. Your defence becomes a simple case of "I am the Keeper, not the Driver. Any contract, if one actually exists, is with the Driver. Therefore, please provide evidence that the Defendant is the Driver."

There will be other arguments besides, and you could actually drawn upon POFA anyway to support your position that "I am the Keeper, therefore, cannot be liable because...".

You need to read and read on this. We're all busy people, but it's such valuable knowledge to have, so worth reading up in any spare time you have.

you word it as provide "strict proof" as to who was driving at the time. Dont invite them to even think that you were involved at all.

You quiote or paraphrase the POFA, they cnat avoid it and therefore have to prove you were driving at the time. You cant agree to waive your rights by way of their sigange or letters. They will try other previous cases where it was shown that the driver was the "servant" of the keeper. That may have been true in the days before compulsory insurance and for chauffeurs and commercial drivers ( where the POFA is different cos the parking co cnat sue a company, only an individual) but for the rest of the world it is rubbish.

Ok court date is 15 March can anyone check the witness statement for me please

Thanks In advance

Witness Statement V2.pdf

well, points 1 and 2 may well fail you as unilateral contracts dont require evidence of who they are intended to apply to and it would be usual to say that by parking you accepted the terms offered otherwise you have to leave. Also with point 1 you should make it clear you ahve requested sight of their contract but it wasnt forthcoming so you DO NOT BELIEVE they have "locus standi" in this matter.

Now, to make your points you need to beef up those arguments considerably and that means pictures of the signage and their loacation. you can then say that they are not a genuine offer of term becuase thye fail to include certain key information or they fail because they are poorly sited, not lit, ( ie not at the entrance to the land and visible as you enter the car aprk , it isnt clear who is making the offer ( ie is ti CEL or someone else?) do the signs at the entrance say something like conditions apply, please see signs for detaisl? If so they arent an offer of a contract but an "invitation to treat" and that menas you dont ahve to consider the other signs if you dont want to, you ahve been invited to park but dont fancy CEL's terms so it is down to the landowner to chuck you out, not them.

get you points 3 and 4 better sorted, give an account of the events and the timeline rather than spouting bits of law that arent obvious as to why they apply.

so the driver ( never I, we, etc) parked at.... on the xxth of month 20** at XX.XX hrs adn tyhe vehicle remined there for YY hours. On theYYth of month 20** the c,laimant snet a letter purporting to be a NTK as required by para ? of the POFA 2012 but it fialed to fulfil the necessary conditions to create a liability (look at the NTK and you will likely find something) and in any case by being issued more than 12 days after the date of the event the claimant has failed to create a keeper liability and the defendant denies being the driver at the time and puts it to STRICT PROOF that there is any cause for action against the defendnat in view of this.

then say that the claim is so vague as to what the claimant has supposedly done to give the plaintiff cause for action and as to ahow they arrived at the amount claimed as they cant rely on the POFA to create a keeper liability and if the NTK was complaint the maximum they cna claim is the amoutn invoiced on the NTK as that is also set by the POFA so that prevents the plaintiff demanding additionalsums for terms that may apply to the driver IF notified of such via the signage at the site ( again useful to know waht the signs say as CEL like to add an extra £350 for Ashley to sign his WS or whatever and them offer to settle for say £200 all in if you agree not to do court.

so drop your point 4 as it is conjecture and not possible to show any evidence of thsi opinion. Likewise drop point 5 as that is opinion and make sure the times and dates are clear in your new point 3

move point 6 up the ladder so it is clear that when you say you dont believe they ahve the necessary permissions then what follows doesnt matter if the judge makes their decision on those points. You will need to say that you ahve asked the council and they say "no PP" as you cnat just say you dotn believe they have it because no-one bothers to apply, you nede to be able to say you spoke to the planning dept on susch and such a date and they confirmed that CEL dont ahve it (more importnat ifcameras dont have it) you take a copy of the 2007 Town and country Planning Act withyou and refer to it where you say no PP.

point 7 is dangerous because it can be argued that the driver was your agent or servant and that will cretae a iability regardless of the POFA. If they raise this then respond but dont bring it up yourself and NEVER use wishy washy coyness like "it could have been me but it might not have been", judges hate it, will say that it was you and then say the rest of your evidence is tained by this lack of honesty. i would drop all of this point rather than dropping yourself in it.

as the sigange says it si there to deter then the amount claimed is an unlwful penalty as it isnt a genuine offer of terms to park but a punishment for doing so. read up on this and use other cases as reference you will find some on the parking pranksters blogspot.

drop point 10 as it is again speculation and not part of a WITNESS STATEMENT.

so pictures, plan of the land ( a tracing over an aerial image from google will do) to show what is where, inc entrance, where the signs are and where the car was parked. Also copy of the POFA, copy fo the 2007 planning act and understand what bit is relevant ( see dec 2016 parking pranksters blog for a link to a well written artcicle you will also include in your bundle) pictures plan etc.

rewrite the WS whe you have got this info and post it back here for us to have a look at so we can warn you of anything that shouts out at us.

If you get their WS in the meanwhile post that up as well as Ashley like to use computer generated pictures rather then the ones on site so if that arrives before the 27th Feb get it scanned and we will set about it

Just wondering on the DQ i said that i would not be available between 2nd feb and 11 March (i am in new zealand) the court date has been set for 15th March which means that witness statements have to be in 1st march (whilst i am still away) shouldnt the court have booked a later date?

no, you have to make this clear to them whe you give dates. You can ask for a postponement or you can use a fax (or email to court) and post the stuff to CEL.

I suggest you get someone at home to scan all of your evidence and forward it to you so you can send it out within the time allowed, ie very soon

dont forget, CEL are likely to bottle this so dont panic

sorry i am putting this up again but in a way that can be changed so that you can highlight what you think is wrong

In The County Court Of Stoke on Trent - Claim No xxxxxxxxx

 

Between

 

Civil Enforcement Ltd (CEL) Claimant

 

V

 

XXXXXXX Defendant

 

 

Witness Statement

 

I xxxxx am the defendant in this case.

 

1. It is denied that the Claimant entered into a contract with the Defendant. As held by the Upper Tax Tribunal in Vehicle Control Services Limited v HMRC [2012] UKUT 129 (TCC), any contract requires offer and acceptance. The Claimant was simply contracted by the landowner to provide car-park management services and is not capable of entering into a contract with the Defendant on its own account, as the car park is owned by and the terms of entry set by the landowner. Accordingly, it is denied that the Claimant has authority to bring this claim. The proper Claimant is the landowner. I have requested a copy of the agreament between the claimant and the landowner however this has not been received, I do not believe, therefore, that they have “locus standi” in this matter.

 

2. I was sent a document by the claimant entitled Parking Charge Notice (PCN) (Exhibit A). I believe this to be a “Notice” as described by the Consumer Rights Act 2015 (Exhibit B.1) I refer to Section 61 (8) In this section “notice” includes an announcement, whether or not in writing, and any other communication or purported communication. I also refer to Section 68 (2) (Exhibit B.2) which requires that a written term of a consumer contract, or a consumer notice in writing, is transparent. As this notice does not state if it is either a Notice to Keeper (NTK) or Notice to Driver (NTD) it is therefore not transparent, I was unable to make a clear and informed choice. The claimant appears to be “hedging its bets” giving itself a distinct advantage which is significantly detrimental to the consumer which is unfair.

I put this bit in to show that they were engaging in unfair practices by not makint it clear that the document is not an ntk or ntd to cause deliberate confusion.

 

3. The Claimant claims not to rely upon The Protection of Freedom Act (POFA) 2012, however, I put to the court that the claimant themselves invoked POFA 2012 by its own actions, when it sent out this PCN on the 03/05/2017. This document is not a request for driver information but a request/demand for payment, it cannot be for the driver, as the driver was unknown at this time (should the claimant claim that they did, then they are put to strict proof of this), therefore, it must be a Notice to keeper requesting/demanding payment, only POFA 2012 allows the keeper to be chased for payment.

 

4. If the Claimant is saying that by parking on that car park a motorist waves his/her rights under POFA 2012, then the signage (Exhibit C.1 and C.2) does not state this and is therefore, unfair as in 2 above.

 

5. My Interpretation of Schedule 4 of of POFA 2012 is that it exists not only to allow parking companies to obtain a method of redress for parking offences, but also to protect the consumer from spurious and untimely claims, and this is shown via time limits which parliament saw fit to set at 14 days from the parking offence for a Notice to Keeper. This forms part of the essence of this act (it does not state 14 to 21 days or even approximately 14 days it was set at a fixed 14 day period) (Exhibit D). The date of the incident was 05/04/2017. The keepers details were requested from the Driving and Vehicle Licencing Agency 28/04/2017, Confirmed by the DVLA in their letter dated 09/05/2017 (Exhibit E) (Already past 14 days) and the notice was sent to me on 03/05/2017. It is, therefore, out of date and should be considered as unlawful and any information gained from its issue should also be considered unlawful.

 

6. The claimant and/or its representatives have failed to provide documents requested by the defendant's CPR31.14 request on the 05/10/18, Although I have never made a Subject Access Request to the claimant a reply to a subject access request was sent by them on the 20/11/18, claiming that CPR31 does not apply to claims on a small claims track, however, the case had not yet been allocated to any track.

 

6.a The claimant has failed to provide a copy of its agreement with the landowner showing it has the right to make such a claim.

 

6.b The claimant has failed to provide Proof of planning permission granted for signage etc. under the Town and Country Planning Act 2007. A contract can not be entered into via signage which has no right to be there.

 

6.c A copy of the KADOE agreement with the DVLA to show that they have complied with the requirements of that contract.

 

7. The claimant is assuming that as I have stated in my appeal that “I was at the gym” I was also the driver. Anyone with the type of insurance that allows you to drive any car with the owners permission (or a 2nd named driver as I have) could have been driving. It is not unreasonable for a keeper to be in a car but not driving, has no one ever said “I don't feel like driving today, you drive” or “I cant drive in these 6 inch heels, you drive whilst I put on my trainers for the gym”, therefore, the claimant is put to STRICT PROOF that I was the driver.

 

8. The claimant refers to the case of Parking Eye V Beavis, in this case the Parking company paid the landowner to monitor the car park and were therefore an interested party. I do not believe that the claimant has such an agreement with the landowner and therefore this case is not relevant.

 

9. The signage (provided by the claimant themselves) states that “To DETER abuse of this car park these terms apply 24 hours a day” clearly showing that the contract and the terms within it (including “you agree to pay £100”) is a deterrent and not a genuine pre-estimate of its loss.

 

10. The claimant is a Private Parking Company, some of these company's are well known for making spurious claims and although I make no accusation regarding this company, I have the right to ensure that any claims made against me are fully lawful, wholly legitimate and true. After receiving a letter from the claimant dated 25/07/2017 (Exhibit F) stating that the balance owed was £100.00. I wrote to them via email (Exhibit G.1) (confirmation of receipt received Exhibit G.2) on the 28/07/2017 asking for a copy of their KADOE agreement with the DVLA, a copy of the contract between themselves and the landowner and a copy of the code of conduct. I did this to ensure that the claim was as stated above - (fully lawful, wholly legitimate and true), however, they did not respond with any documents, therefore, any costs applied after this date are wasted costs due to the action (or inaction) of the claimant. this is to show that I offered to pay if they proved that the charge was issued correctly they failed to do so therefore incurring wasted costs if they now provide it in court

 

Should the court find (for whichever reason) wholly in my favour then I wish to seek all costs incurred from the date of production of the Notice. (Exhibit H)

 

Should the court seek to find in my favour for point 10 only, then I wish to seek any costs occurred for regarding this action. (Exhibit J)

 

I believe that the facts in this defence statement are true.

 

 

Signed XXXXXXXXX

if you can highlight the bits i should change that would be much appreciated

I am starting to panic a bit

read what I wrote again, no-one has enough time to rewite the whole of your earlier effort.

in short drop points 1 and 2, also drop 10 as that will just get up the judges nose as it is opinion

On 2/25/2019 at 11:35 PM, ericsbrother said:

OK i sent the following question to DVLA 

Quote

‘When information is requested by a parking company are they required to abide by the POFA 2012 section 4 or can they obtain the information by other means. does their kadoe contract require them to request the information under POFA 2012’.

and received the following reply

 

Quote

 

I can confirm that parking companies can apply for keeper details, provided that there is reasonable cause for doing so. This is released under Regulation 27 of the (Road Vehicles) Regulations 2002.

 

Schedule 4 to the Protection of Freedoms Act (PoFA) prescribes conditions that must be complied with in order to take advantage of the powers in that Schedule to pursue the keeper for payment.  One of these is that the company must issue the notice to keeper so that it is delivered within 14 days.  If that timescale is not met, the keeper liability powers do not apply; however, the company is still able to pursue payment of the charge through the means open to them prior to the introduction of PoFA, and therefore they have reasonable cause to receive that data.  DVLA is not entitled to impose unlawful restrictions on the disclosure of data to those who have a legitimate claim to receive it. The current KADOE contract does stipulate that the data must be requested under PoFA for these reasons.

 

Does this help or hinder??

that is their standard response when what you want is WHO and WHEN so you askedf the wrong question.

No-one suggested that you do this so take notice of what people actually write and you will save a lot of time. Now you dotn ahve anything you can use  but if you had asked the correct question you might well have reason for a countercalim because CEL will have lied to obtain your details