Readers’ emails: Is the Protection of Freedoms Act retrospective?
From: David
Subject: Small Claims CourtHi,
I have recently received a County Court summons from Civil Enforcement Limited (“CEL”). It relates to a supermarket parking ticket in July 2012 for overstaying by 10 minutes their 2 hr allowed time. Although I am the registered owner, I was not driving the car on that day as I was at work. I have informed CEL, and the other debt collecting company they used, of this, including a letter from my employer confirming I was at work. I have issued a defence to state therefore that they have no contract with me upon which to sue me. My understanding is that the relevant section of the Protection of Freedoms Act 2012 came into effect around October 2012 – this was soem 2 to 3 months after the alleged offence. I have therefore never provided details of who was driving on that date.
Also, at the beginning of this year, CEL wrote to me saying they were assigning 87.5% of the debt to another company, and they would not be involved in that again. The Court papers do not refer to this assignment, nor how their claim is made up, therefore in my defence I have raised the point that their claim is very confusing, as is their habit of assigning the debt to other parties and then writing to me again.
What I would like to know is:
1. is the relevant section of the Protection of Freedoms Act 2012 retrospective – ie should I be giving the name of the driver?
2. What is the chance of the Court finding in my favour – i.e. that as I was not driving I have no contract and therefore can not be liable for any charge?
3. Is there anything else I should do?
Hi David, in answer to your questions:
1. No, the Protection of Freedoms Act is not retrospective – it only applies to tickets issued from October 2012, and it only applies if the parking company meets the requirements set out in the Act. Early on, many did not, for example by issuing tickets that do not have the requisite information.
2. The small claims court works on the priciple of ‘balance of probabilities’, as opposed to ‘beyond reasonable doubt’ (as in criminal law). So, if you have evidence that shows you weren’t driver, and CEL cannot refute this, then on the balance of probabilities you would not have been driving. Since the alleged contract was between the driver and CEL, and keeper liability did not apply, then you should have a very strong case. However, the small claims court is a bit of a lottery, so you can never be absolutely certain of anything.
3. If you file a strong defence against CEL, they more often than not back down a couple of days before the case (see Prankster’s post). So, you need to make sure you file a strong defence. There’s free help out there on the forums, so I would suggest you make use of it (either by reading up, or posting yourself).
Best of luck and let us know how you get on!