MET parking fine Krispy Kreme Donuts New Malden - parked within time limit but they say driver was not a customer
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My guess is that the revised defence has to be submitted by 24 June, 28 days after the court order dated 27 May. But that’s only a guess. Per Reply #53 which has some of the necessary details made vague.
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10. Pursuant to paragraph 4 of POFA, the Claimant has the right to recover the Charge from the 'Keeper'. Paragraph 1 of POFA clarifies that the Registered Keeper is presumed to
needs to be challenged - what “Paragraph 1 of POFA” and where does it say this?
be the 'Keeper' unless proven otherwise.
Is this just a typical untrue statement stated as fact, which is common practice, in the hope that nobody notices it’s complete rubbish? But did they mean to say ‘driver’, which they didn’t? Of course the “registered keeper” can be presumed to be the “keeper”! It’s total rubbish which needs to be pointed out as such.QuoteSCHEDULE 4
Recovery of unpaid parking charges
Introductory
1(1)This Schedule applies where—
(a)the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and
(b)those charges have not been paid in full.
(2)It is immaterial for the purposes of this Schedule whether or not the vehicle was permitted to be parked (or to remain parked) on the land.QuoteRight to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met; and
(b)the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3)For the purposes of the condition in sub-paragraph (2)(b), the vehicle is to be presumed not to be a stolen vehicle at the material time, unless the contrary is proved.
(4)The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.
(5)The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).
(6)Nothing in this paragraph affects any other remedy the creditor may have against the keeper of the vehicle or any other person in respect of any unpaid parking charges (but this is not to be read as permitting double recovery).
(7)The right under this paragraph is subject to paragraph 13 (which provides for the right not to apply in certain circumstances in the case of a hire vehicle). -
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I'm sure there's a section in PoFA which sets out 'meanings' under the Act.
I think the Claimant means that the word 'keeper', when used in text of the PoFA legislation, means the Registered Keeper of the vehicle in question. -
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The OP should also examine the wording of the PoFA explanatory notes.
In particular Note 221 which specifies the following;
221.Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied.
The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity.
The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, (paragraphs 4(2) to (3)), or in certain circumstances where the vehicle in question was a hire vehicle (paragraph 4(7)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5)).
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I'm sure there's a section in PoFA which sets out 'meanings' under the Act.
There is, paragraph 2.I think the Claimant means that the word 'keeper', when used in text of the PoFA legislation, means the Registered Keeper of the vehicle in question.
Yep:“keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper; -
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Does this link work?
https://ibb.co/ch0mjgSG
I have until 25th June I think.
Yes, that's fine - it looks pretty compliant.
Can you confirm that you have used this branch of KK Donuts before? -
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yes i have and I knew it was open late but didn't check the actual time that evening. Their argument is that I cannot be a customer when the store was closed.
However, I entered as a customer, was just unable to buy anything
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yes i have and I knew it was open late but didn't check the actual time that evening. Their argument is that I cannot be a customer when the store was closed.
However, I entered as a customer, was just unable to buy anything
That's good news.
The notice says "Customers Only"
You are a regular customer and therefore appear to satisfy the requirements of the term.
They will argue differently by you are protected by the concept of contra-proferentem - meaning that, as a consumer, you are entitled to interpret the term in a manner which benefits you so long as that interpretation is reasonable based on the wording used.
I asked you if you were a customer of KK and you answered "Yes" - that is a reasonable interpretation.
I have read their more detailed PoC - what a mess they have made.
This just goes to show how useless these legal firms are when they are forced to ski off-piste - meaning, that at soon as they can no longer use their boiler-plate PoC, they simply don't have the required skills or attention span to deal with the claim.
I think we can use this to our advantage but we need to play a tactical game.
They have said that they are pursuing you as keeper - but you aren't the keeper.
We'll need to come up with a defence which doesn't tip them off as to their numerous errors.
Then, at a later stage, we can submit our Witness Statement at the last possible moment (hopefully after we have seen their WS) - in our WS we can then make it clear that you are not the keeper.
Maybe others could comment on this approach?
Does all this make sense?
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The notice says "Customers Only"
How well that approach goes down may depend on "judge bingo".
You are a regular customer and therefore appear to satisfy the requirements of the term.
Some judges may think a defendant is "taking the p*ss" somewhat by seeking to argue that a reasonable interpretation of the signage is that someone who has previously been (or is a regular) customer is entitled to use their land for free parking even when not actively being a customer at the time (e.g. When the store is closed). Others may go for it.
Another angle here may be that the signage makes no valid contractual offer to non-customers. It prohibits non-customers from parking rather than offering them parking on certain terms in the way it does to customers.
It might be difficult to run both of these arguments in tandem, as one involves making the argument that the driver was a customer despite the store being closed, whilst the other involves arguing the driver was not a customer. -
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Yes - all noted.
But we're using those arguments to draw attention away from the major mistakes in the revised POC. -
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The Krispy Kreme Defence.
This needs to be submitted as close to the deadline as possible.
But make sure that deadline is worked out correctly.
I would submit on the previous day to the deadline.
1. That I am the individual named in this Claim.
2. That liability for the claim is denied and that no debt is owed by myself to the Claimant.
3. That, although the Claimant's revised Particulars of Claim (POC) are more detailed than the previous version, the new POC remain inaccurate, lack specifics and fails to disclose how they believe the terms and conditions of the alleged contract were breached.
4. That, after taking legal guidance, I have been advised that it is not the job of the Defendant to help the Claimant get their Claim in order.
5. I will therefore (in light of my two previous points) be responding only to the Claimant's pleaded claim as set out in their amended POC.
6. That the Claimant specifies that they are pursuing me as the Registered Keeper of the vehicle in question.
7. That the Claimant is using Protection of Freedoms Act 2012 (PoFA) in order to establish what is known as 'keeper liability' under PoFA.
8. That I believe that PoFA keeper liability is not available to the Claimant in the manner which they are claiming since they are unable to meet the strict criteria under which PoFA would make me the liable party.
9. That I believe that the Claimant is attempting to recover a sum far greater than the legislation allows under PoFA.
10 That PoFA specifically states that, under 'keeper liability' PoFA Schedule 4 Paragraph 9(2)(f) that, "the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid"
11. That the PoFA explanatory notes (contained within the Act) specifies at Note 221;
Paragraph 4 provides that the creditor has a right to recover unpaid parking charges from the keeper of the relevant vehicle if the conditions set out in paragraphs 5, 6, 11 and 12 are satisfied.
The creditor is not obliged to pursue unpaid parking charges through this scheme and may seek to do so through other means but they may not use the scheme provided for here to secure double recovery of unpaid parking charges (paragraph 4(6)), nor will they have the right to pursue the keeper, as opposed to the driver, of the vehicle where they have sufficient details of the driver’s identity.
The right to reclaim unpaid parking charges from the vehicle keeper does not apply in cases where the vehicle has been stolen before it was parked, (paragraphs 4(2) to (3)), or in certain circumstances where the vehicle in question was a hire vehicle (paragraph 4(7)). The creditor may not make a claim against the keeper of a vehicle for more than the amount of the unpaid parking related charges as they stood when the notice to the driver was issued (paragraph 4(5)).
12. That Note 221 makes two relevant points, namely; that the registered keeper cannot be pursued when driver details have been provided and that the creditor (Claimant) cannot make a claim against the keeper for more than the amount of the unpaid charges at the time the NtK was actually issued.
13. That the Claimant therefore appears to be ignoring the requirements of the legislation on which they appear to be reliant since their 'claim' is more than double the amount which the legislation says can be recovered.
14. That I believe that I have never contravened any of the terms or conditions at the specified location in the manner which the POC loosely suggests.
15. That liability for the Claim is therefore denied.
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Is there a reason none of these points mention that the defendant was not the registered keeper? This seems like a very salient point, but as far as I can tell, neither the original defence nor this revised one make mention of it.
It isn't the defendant's job to get the Claimant's claim in order, but it is their job to respond to each of the claims made. One of those claims is that the Defendant was the registered keeper. -
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Defence point 8 does cover this.
But we are trying to avoid a situation where the Claimant realises their mistake and attempts to pursue the OP as the driver. -
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Thank you for your help, I will submit all those points
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