Acknowledge LBC or give correct driver details?

Coupon-mad

Not much of a POC is it?!

misterman

Not sure, I've never seen one before lol! Anything in there that's particularly deficient? Thanks

Coupon-mad

Well I guess it's basic but probbaly OK to start a claim. But they haven't even bothered to mention the car reg and why they hold you liable - it reads as though they have assumed all these defendants they are suing were the driver. Even in your case (and in most) where they have failed to establish registered keeper liability because their NTKs were hopelessly late and non-compliant.

-have I missed any other points worth making?
-given point 1, is point 3 worth making? ie the RK was not the driver, so why argue the amount claimed is unfair, as any amount would be unfair given the RK is being pursued, not the driver

I think you should spell out the the NTK was not compliant for several reasons and was too late under law (POFA 2012) for any registered keeper liability to have been established. As they have failed in this regard and you have informed their solicitor prior to court action being commenced, who the driver was, the claim should be struck out as it is against the wrong person.

Assume the judge will not be up to speed with POFA (still quite new and specialised areas of law).

You should add all sorts of things such as the signage was not BPA compliant, and point 3 (not a genuine pre-estimate of loss) certainly as well... if you extend the words a bit to state that the charge therefore breaches the BPA code of practice, is not recoverable according to OFT advice to this Claimant's Trade Body, the BPA Ltd, and is clearly an unenforceable penalty created to make a profit under the guise of 'breach of terms'.

zzzLazyDaisy

I agree this defence certainly needs tightening up.

I don't have time right now to make detailed comments but I will be back later this evening. In the meantime hopefully the regulars will comment further.

The important issues are:

Registered keeper has already discharged liability
non-compliance with POFA (late service of PCN)
No authority to issue proceedings (put them to strict proof and require them to provide an full copy of the contract with the landowner authorising them to act as agents in bringing these proceedings
No genuine pre-estimate of loss

(Then go on to raise all the issues that a normal defence would raise - this is because you are required to show that you have a reasonable defence *if* the claimant has the right defendant).

The point about the solicitor is a side issue. It won't get the case struck out and isn't part of your defence. You can and should raise this matter with the SRA, and you can and should write to the parking company about this and threaten them with costs. But at the moment none of that matters - it is the defence that needs to take priority.

hth

Daisy

Daisy

Coupon-mad

The poster dpc036 has posted some damning pictures of the signage on site if you were both at the same car park.

https://forums.moneysavingexpert.com/discussion/4779806

He is also currently working on his defence this week and has looked at Jimmy Shand's case too, which is linked there and has his defence draft. Should all of use to you.

misterman

thanks for the advice, I will draft a skeleton defence this evening & tomorrow. Im away from home from Sunday so will need to submit it by Saturday. Thanks for the link to dpc036's thread, the PCN(NW) sign is exactly the same but from a different car park.

Regarding PoFA, the PCN was not issued late, but PCN(NW) and GBP have continued to pursue the RK after the driver was named. So I presume this is still a breach of PoFA.

Coupon-mad

Certainly a breach of POFA and should be a slam-dunk winning defence point. You should ask for the case to be struck out at the outset because the (now defunct) solicitors have already been informed that this is not the right defendant, and were given the right name and address, which discharged any liability for you as registered keeper, under POFA 2012.

zzzLazyDaisy

Here is something to get you started:

In the Northampton County Court
[name of PPC] -v- [name of Defendant]
Case number xxxx

DEFENCE

The defendant denies the claimant claim in full.

In particularly:

1 The claimant has no cause of action against the defendant:
a)The claimant relies upon the provisions of Schedule 4 of the Protection of Freedoms Act 2012 (POFA) in seeking to enforce the charge which is the subject of these proceedings against the defendant in his capacity of registered keeper of the vehicle
b) Scedule 4, para 5(b) POFA provides that the claimant may only enforce the charge against the Registered Keeper if it does not know the name of the driver and a current address for service of the driver
c) By a letter dated xxxx the defendant informed the claimant and its solicitor, GPB solicitors, of the name and address of the driver as he was entitled to do under POFA, thus discharging all liability as registered keeper (copy letters attached). The defendant received no reply from either the claimant or its solicitor
d) On [xxdatexx] the claimant issued county court proceedings against the defendant
e) On [xxdatexx] the defendant again wrote to the claimant and its then solicitor to complain about its conduct in issuing proceedings against the defendant as registered keeper notwithstanding the fact that it knows the identity of the driver, and inviting the claimant to withdraw the court action (copy letters attached). The defendant received no reply from either the claimant or its solicitor.
f) On [xxdatexx] GPB solicitors were closed down by the Solicitors Regulation Authority (SRA) http://www.sra.org.uk/consumers/solicitor-check/solicitor-check/560888.page
g) On [xxdatexx] the solicitor named on the court papers as 'Roy George' also had his licence to practice suspended by the SRA [insert here link for this].

It is therefore the defendant's case that the claimant has no cause of action against the defendant and the defendant respectfully requests the court to list this matter for a Preliminary Hearing to consider the defendant's application to strike out the claimant's claim on this basis.

2 The claimant has no legal standing (locus standi) to pursue court action against the defendant
a) The claimant has neither claimed nor shown any proprietorial interest in the land in question
b) The claimant is a member of the British Parking Association (BPA) and must comply with the BPA Code of Practice which expressly provides, at paragraph 7, that if the claimant does not own the land it must have a written agreement with the landowner or its agent with specific content which includes authority from the landowner to pursue outstanding parking charges through the courts if necessary
c) If the defendant is liable under POFA as the registered keeper (which is not admitted) then it is the defendant's case that the claimant has no authority to act as agent on behalf of the landowner in pursuing these proceedings and the claimant is put to strict proof of the same

It is therefore the defendant's case that the claimant has no legal standing to bring these proceedings against the defendant and the defendant respectfully requests the court to list this matter for a Preliminary Hearing to consider the defendant's application to strike out the claimant's claim on this basis.

3 Further and in any event if the court finds against the defendant in respect of the applications to strike out listed at paragraphs 1 & 2 above, the defendant disputes the claimant's claim in full for the following reasons:

a) GPEOL
b) Signage

etc etc


As has already been pointed out, you should assume that the judge knows nothing about POFA, genuine pre-estimate of loss, etc, and be prepared to spell these issues out. It is not necessary to go into detailed argument in the defence - which is only intended to show the court that there is a case to be heard - but you will need to prepare a full written argument setting out your case for each point, before the hearing (if it gets that far).

Also, if Boy George signed his name to the court papers after his licence to practice was suspended, you should copy the papers to the SRA and ask them to investigate your complaint of holding himself out as a solicitor when in fact he no longer holds a valid practising certificate having been suspended fro practising by the SRA on [xxdatexx]

See here for how to report a solicitor to the SRA

http://www.sra.org.uk/consumers/problems/report-solicitor.page#how-report-sra

misterman

Quick question: does POFA require the RK to name the driver within 28 days of the NTK being received? And if the driver is named outside of this period but before court action is initiated, can the RK be pursued? I've read some conflicting information!

Coupon-mad

misterman wrote: »

Quick question: does POFA require the RK to name the driver within 28 days of the NTK being received? And if the driver is named outside of this period but before court action is initiated, can the RK be pursued? I've read some conflicting information!

No POFA 2012 does NOT require the driver to be named within 28 days. The RK cannot be pursued if the driver is identified before court action commences.

A lot of PPCs would argue otherwise but if you read schedule 4 it's there in black & white. There is a 28 day thing among that section but that's specifically where hire/lease firms are given 28 days to send the name of the hirer/driver (but even then they wouldn't be liable if they sent it late because POFA 2012 says a rk can only be pursued in court when the driver has not been ID'd).