Free Traffic Legal Advice

What a farce. I would reply along similar lines to your previous response. As they're instructing a different law firm, who presumably won't be aware of the case history, I'd be minded to include an opening paragraph about this, pointing out that this is the second Letter of Claim you have received in respect of the same parking charge, the file previously having been closed by BW Legal on Smart's instruction. I would ask as a preliminary question why, having previously closed the case, Smart have elected to proceed again despite no new information coming to light.

Feel free to show us a draft first.

• Your Letter Before Claim contains insufficient detail of the claim and fails to provide copies of the evidence your client places reliance upon. It is therefore in breach of the Pre-Action Protocol for Debt Claims.
  I am the registered keeper of the vehicle. I am not obliged to identify the driver and decline to do so. There is no legal presumption in law that the keeper of a vehicle was its driver on any given occasion. Your client cannot pursue me as driver, as per VCS v Edward (2023) [H0KF6C9C].
  
• If your client is seeking to rely on Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) to hold me liable as keeper, they are unable to do so. The Notice to Keeper (NtK) was issued on Wednesday 8th February 2023, relating to an alleged contravention on Sunday 22nd January 2023. According to paragraph 9(5) of Schedule 4, the NtK must be “given” to the keeper within 14 days. Paragraph 9(6) deems the date of “giving” to be two working days after posting, which in this case would be Friday 10th February 2023 — 19 days after the event. Your client is therefore out of time to claim keeper liability under PoFA.
  
• As such, your client cannot pursue me as either the driver or the keeper. To issue a claim in these circumstances would constitute an abuse of process, and I will defend it vigorously. If proceedings are issued, I will also seek costs for unreasonable conduct under CPR 27.14(2)(g).
  
• Furthermore, your letter fails to comply with the requirements of the Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2), as well as the Practice Direction – Pre-Action Conduct (paragraphs 6(a) and 6(c)). Accordingly, this is a formal request under both instruments for the following information/documents:
  
  1. An explanation of the cause of action
  2. Whether you are pursuing me as driver or keeper
  3. Whether you are relying on the provisions of Schedule 4 of PoFA 2012
  4. The details of the claim: how long the vehicle was parked, how the amount claimed was calculated
  5. If for contractual breach: the date of the alleged agreement, the parties to it, and a copy of the alleged contract
  6. Photographic evidence showing the vehicle parked in breach of the alleged contract
  7. If for trespass, provide details
  8. A copy of the contract with the landowner authorising enforcement, as required by the BPA/IPC Code of Practice
  9. A site plan showing where signage is displayed
  10. Photographs of the signage (showing size, font, positioning, and height) as they were on the date of alleged contravention
  11. Full details of the original charge, and any interest or additional costs
  12. Clarification of the £70 ‘debt recovery’ fee: is this net or inclusive of VAT? If the latter, why is the consumer being charged the operator’s VAT?
  13. For the £100 principal charge: is this pleaded as consideration for parking or as damages? Please clarify.
  

Please show us that letter. DO NOT redact any signatures or the name of the person that signed it.

Grounds that might get the PCN cancelled by Premier Park, nothing obvious, PCN was issued in the POFA time frame and on the face of it you breached the Ts & Cs of the car park. Other might spot something I've missed, was the signage clear etc. (although it was obviously clear enough for you knowing you needed to pay).

You'll get told that entry and exit times don't equate to parking time but as the whole industry is based on that premiss it's a pretty weak argument. You'll probably also be told the PCN isn't fully complaint with all the requirements of POFA as they don't appear to have used the exact wording that the keeper is invited to pay the charge. Also a very flimsy defence which won't win you an appeal with the parking company an is unlikely to win at POPLA.

The usual advice on here in most cases is not about a winning argument (you'll be offered all sorts of very legal sounding defence points which won't generally win appeals), it's about doing enough to run the clock down and hope they don't actually proceed to court. It usually works, not because it has merit but because the PPCs can't afford to take everyone to court so give up. You will need to be prepared to appeal to POPLA, withstand the deluge of debt collectors letters and eventually submit a defence when the court claim is raised. If you do that they will probably drop the case before they need to pay the court fee.