Help me with POFA compliance

energy1x

Please can I ask for some help with POFA.

I've had a good look at the sticky on here as well as the forum at pepipoo but feel I can't get a proper answer without my question and explaining.

Got a PCN last year which is at county court stage. Stupidly, I totally ignored everything from the PPC and binned the initial paperwork like the original ticket on the car and notice to keeper.

I did keep the correspondence from DRP and then gladstones solicitors and absolutely everything since.

But I'm stuck on POFA. I wasn't the driver.

In the absence of the notice to keeper document I can't try to check its compliance with the provisions! The only one I think I can get the PPC on is that the sum they now demand is higher than the original demanded. (It's now double they;re claiming in court) I've got no proof of this though, apart from the signs the PPC took a photo of and are using against me.

Is there any way POFA can still apply to my case? I've already submitted a defence stating POFA doesn't apply based on the inflated charges and therefore liability falls to the driver who is the resident and can defend based on the lease rights to parking.

Hope one of you helpful guys can help, I'm stressing here as POFA is such a huge part to these claims and if it DOES apply in my case because I stupidly didn't name the driver early enough then obviously it will be harder to defend as it will be me based on just signs etc.

Coupon-mad

But I'm stuck on POFA. I wasn't the driver (I want to say who was though) but it is too late now because of the above? I'd like to admit who was the driver as they have more rights than me to defend the claim with (they're named on lease for the residential car park and they were driving).

You are too late to name the driver at court claim stage to transfer liability. But not too late to ask the driver to supply a witness statement (WS) later on and to ask them to produce their lease and come to court with you, as a witness, to help win the case.

So you can use all of the above in your defence, the Jopson case, the lease, all the usual stuff in any residential PCN defence on here (and we see loads of good ones, all won). And you can say who was driving; you just can't transfer liability.

In the absence of the notice to keeper document I can't try to check its compliance with the provisions!

You can send a SAR to the parking firm and ask for all information held about you and the car, the event, the signs, the PCN, the NTK, all of it:

https://bmpa.zendesk.com/hc/en-us/articles/206890469-6-Subject-Access-Requests-Easy-

Or you can wait till exchange of WS a couple of weeks before the hearing. The NTK will have to be included then, with the bundle of drivel from Gladstones, prior to the hearing.

Or you can tell us which PPC this is and we might recall whether they are known not to use the POFA.

energy1x

You are too late to name the driver at court claim stage to transfer liability. But not too late to ask the driver to supply a witness statement (WS) later on and to ask them to produce their lease and come to court with you, as a witness, to help win the case.

So you can use all of the above in your defence, the Jopson case, the lease, all the usual stuff in any residential PCN defence on here (and we see loads of good ones, all won). And you can say who was driving; you just can't transfer liability.

OK. So if I do that as you suggest, how is that any different than if I was to transfer liability to the driver? How is it different defending as keeper or defending as keeper but having transferred liability to driver (if this was done in time)? I guess it just means POFA does not apply so makes the PPC look a bit silly?

Has anyone before me had the same issue like this or anything similar? I'm sure others must have binned lots of the stuff that gets sent

Also, the fact about the amount being demanded still doesn't get me out of POFA? I have stated in my defence that POFA doesn't apply due to different amounts but that is incorrect?

Coupon-mad

OK. So if I do that as you suggest, how is that any different than if I was to transfer liability to the driver? How is it different defending as keeper or defending as keeper but having transferred liability to driver (if this was done in time)? I guess it just means POFA does not apply so makes the PPC look a bit silly?

If you had transferred liability to the named driver before proceedings, the driver would have been the defendant and the POFA would not be in play. In fact as keeper, you have more of a defence because you can also point out any issues about the Notice to Keeper, when you actually see it, which can wipe out the claim entirely! A driver doesn't have that luxury, can't use the POFA at all. You can also use the driver's lease and his WS to show he had primacy of contract (Jopson case, PACE v Noor, Link v Parkinson, etc., maybe use Saeed v Plustrade too).

Depends what the lease says?

Has anyone before me had the same issue like this or anything similar? I'm sure others must have binned lots of the stuff that gets sent

All the time. But we still win every time at the moment, every defence coached by this forum and seen through to help with the WS stage too, has won.

Also, the fact about the amount being demanded still doesn't get me out of POFA? I have stated in my defence that POFA doesn't apply due to different amounts but that is incorrect?

Not really quite right, no, but you can say the POFA applies a ceiling to the amount that can be recovered from a registered keeper, no added random costs (except court fees of £50 if you lost). No randomly added 'costs' as they have probably shovelled on!

To show that as keeper you are not liable, you would need to show that Schedule 4 had not been complied with (mainly that's all about the NTK, also a bit about the signs = must have been 'adequate notice' of the parking charge).

We can help more if you tell us which PPC this is. No need to hide, they will see your defence soon enough.

energy1x

Is there any point of me to mention anything about POFA in my witness statement and skeleton argument now? Other than not being able to add random costs?

If I won't see the notice to keeper until the claimant provides their witness statement/bundle, how do I respond to this? Will it just be orally in the hearing itself or can I hit back in a skeleton argument submitted a few days before the hearing

Coupon-mad

Did you not try the obvious?

Put:

ukcpm Notice to keeper

into Google and click 'images'! Find one from the same time...you then have the wording.

energy1x

That's a good idea, thanks. Good to have a second opinion on this.

Would that be submittable for my witness statement though? A notice to keeper that was issued to someone else but at the same time? Even if I find the wording does indeed fail, I expect at some point it does, how does this change anything for me now

Coupon-mad

You wouldn't be submitting someone else's NTK. You would be saying something like:

The claimant has not complied with the Practice Direction and failed to send me any details of the contract; I have seen no photos of the alleged signage, no copies of letters purportedly sent at the time, regarding an alleged event which happened a year ago where I was not even the driver. I do not have any such letters or a PCN and I was not the driver, who was an authorised resident (his witness statement and a copy of his lease accompany this Witness Statement as proof of his primacy of contract).*

The burden remains with the Claimant to prove their case and the duty was theirs to furnish me, the registered keeper, not with demands for money but full particulars and evidence at an early stage, prior to any claim this year. Without any such information, as a registered keeper of a car when I was not the driver, I am placed at a huge disadvantage and there appears to be a want of any cause of action, and a lack of any evidence.

This makes my Witness Statement position almost impossible, given the Claimant has not provided their Witness Statement and Evidence to me yet either. The sparse Particulars on the claim form are indicative of a typical robo-claim from this industry, designed to intimidate litigants in person like myself, with no experience of the court process, into just paying an inflated three figure sum, for fear of being dragged to a hearing where it is almost impossible to make an informed decision or defence statement at all.

I will state that I believe the signs used by UKCPM were incapable of forming a contract and sporadically placed, with any reference to £100 penalty buried in wordy small print, on signs that cannot disregard the existing rights of residents and cannot re-offer parking at more onerous terms than was already granted/agreed under the driver's lease. I will also state that I believe that they cannot hold me liable as registered keeper, not just due to inadequate notice of any parking charge and a lack of any valid 'relevant contract or obligation' with the driver, but also because any Notice to Keeper issued was not compliant with Schedule 4 of the Protection of Freedoms Act 2012. I put the Claimant to strict proof of these matters and will have to wait until at or close to the hearing, for me to be able to see their evidence for the first time.




*you will need to read some decent defence/Witness Statement wording from residential cases, about primacy of contract and the fact that the managing agent at the flats/residences cannot override your friend's rights under his lease (or tenancy?). This will be key to your case and we need to know what the lease or AST says, please.

energy1x

Thanks for that text, I'll include it in my witness statement.

I've seen other posters have said they submitted a 'preliminary matters' document to the court several days before their hearing, is this the same or separate from a skeleton argument?

Fruitcake

energy1x wrote: »

Thanks for that text, I'll include it in my witness statement.

The driver's lease states that they can park in any available space that is not allocated. The space parked in was a communal one, although the PPC/management company have incorrectly labelled it as a visitor space.

I've seen other posters have said they submitted a 'preliminary matters' document to the court several days before their hearing, is this the same or separate from a skeleton argument? I'd like to hit the PPC with everything possible but not sure how preliminary matters differs from skeleton argument and therefore what to include in it.

Also, I've seen other posters have complained directly to the management company/landowner etc, I take it that as I am now liable due to not sorting the POFA issues out above, that I can't write to the landowner?

Of course you can complain to the landowner and MA. Don't expect too much though. The MA may get a kick back from the parking scammers, and in all the cases we have seen, they think they are and the PPC are in the right.
The landowner however may not even know about the scam.

Coupon-mad

The driver's lease states that they can park in any available space that is not allocated. The space parked in was a communal one, although the PPC/management company have incorrectly labelled it as a visitor space.

Is the driver a tenant or an owner with leasehold title?

What evidence can you show the court, that this space is 'incorrectly labelled' as a visitors space?