Wrongly accused

jkdd77

bargepole wrote: »

Why? The OP was the driver on both occasions, and should say so, with evidence that it was two separate visits.

Trying to hide behind the technicalities of POFA is a pointless exercise, unless the keeper wasn't driving and can prove it.

You've often said, quite forcefully, that PoFA non-compliance is irrelevant unless the motorist can prove they weren't driving. I respectfully disagree.

As I'm sure you know, in the event of PoFA non-compliance, it is for the PPC to prove on the balance of probabilities, that the defendant was driving; the defendant does not need to prove anything. A defendant who wasn't driving ought to win in court in the event of PoFA non-compliance by making a statement to that effect backed by a statement of truth, since the PPC cannot prove otherwise.

Different judges take different attitudes to the question of driver identity in the case of PoFA non-applicability or non-compliance.

Where PoFA doesn't apply, some judges take the view that a failure to name the driver, combined with being the RK, is sufficient to show that the defendant was driving, but others tend to take the view that the claimant must provide hard evidence as to the driver on the day to prove their case to their required standard. Judges can ask the defendant directly who was driving, and this question, if asked, must be answered truthfully, but most do not do so.

I've seen a handful of cases on this forum and on Pepipoo where defendants have won on this ground alone, with the judge dismissing all other defence points, and commenting that the charge would have been enforceable but for the failure of the PPC to comply with PoFA and subsequent inability to prove, on the balance of probabilities, that the defendant was driving.

The PoFA requirements are simple, clear, cheap and easy for a PPC to comply with, and many judges, recognising this, are reluctant to bend over backwards to help a PPC who has failed to comply with them on a subsequent fishing expedition against a defendant who might or not be the right person to sue.

Indeed, "PoFA non-compliance" is normally, although not quite always, a winning argument at POPLA where a motorist has not admitted to being the driver, with POPLA normally recognising that, contrary to what you appear to suggest, it is for the PPC to prove that the RK was driving and not for the RK to prove that he/ she wasn't driving. On the other hand, POPLA appear to be more likely than courts to uphold "double-dip" charges.

If PPCs could just simply assume that the RK was driving unless he or she could conclusively prove otherwise, there would have been little need for RK liability in the first place.

Frankly, post Beavis, with many of the old defences (e.g.GPEoL) no longer working, and with so many judges, even circuit judges on appeal, thinking that it makes all PPC invoices enforceable in all circumstances, even where the signage is pathetic, I actually think that PoFA non-compliance combined with a non-admission of the identity of the driver is now one of the strongest remaining defence points, assuming the facts of the case are indeed such that PoFA non-compliance or non-applicability is clear, (as with railway car parks subject to byelaws).

Having said that, a defendant who was genuinely driving should, in the absence of other killer defence points, probably consider a settlement offer even facing a claim based on a non PoFA compliant invoice, since their chances of success are highly dependent on the attitude of the judge, and the costs associated with losing likely quite high.

In this case, the OP did not overstay and so has a immensely strong defence. Furthermore, he/ she is not (yet) facing a trip to court, but rather an appeal to POPLA, who routinely uphold appeals based solely on "RK liability not established" (and rarely uphold appeals based on 'double-dip cases), but, with PE, RK liability is likely to apply anyway.

If the PE invoice appears not to meet one or more of the specific statutory requirements set out in Schedule 4, albeit that this is relatively unlikely, then I would refer to the driver in the third person in the OP's letter denying liability with the intention of winning at POPLA on the "RK liability not established" point.

Otherwise, I would refer to the driver in the first person, provide a detailed timeline, and provide such supporting evidence as he/ she is able to in order to maximise his or her credibility in the likely court case to follow, given that PE rarely cancel invoices voluntarily.

bargepole

jkdd77 wrote: »

You've often said, quite forcefully, that PoFA non-compliance is irrelevant unless the motorist can prove they weren't driving. I respectfully disagree.

I should make it clear that my view on this is based on dozens of court appearances, and relates to court cases, not POPLA or IAS appeals which I don't get involved in.

Many Judges do not like 'technical' defences which say nothing about the actual facts of the parking event, and in the absence of a denial that the Defendant was driving, will assume on BoP that he/she was the driver.

Others will go by a strict application of POFA, and if the PPC has failed to comply, will dismiss the claim. The risk for defendants is that they will not know, until they walk into court, which type of Judge they will get.

The other issue is that if the D has other winning points, such as poor or unlit signage, a double dip, queues to exit the car park, machine issuing wrong ticket etc., it's going to be hard to argue those unless he can say he was actually there at the time.

Fruitcake

I agree that in some cases there is no harm in revealing the driver's identity, and in certain cases it is to the motorist's advantage, but I am of the opinion not revealing the driver's identity should be the default starting point until the poster understands what they are doing.

Too many people throw away the driver's identity when they shouldn't. Surely it is better to start from a keeper only stand point and then admit to being the driver if necessary once the facts have been established.

arrow256

Hi All - can I first state unequivocally that I was a genuine victim of double dipping by PE. I am 99% sure that I have had this charge cancelled by PE as a result of my appeal to the DVLA Data Sharing Directorate. No explanation of the cancellation of the charge by PE but the DVLA stated that PE had admitted a “camera fault” in their response to the Compliance Officer. If you have being wrongly accused I would recommend the DVLA as an option in dealing with the ticket.

Quentin

Until you get it confirmed in writing that they have cancelled the ticket continue with the appeal process.

Don't miss any deadlines.

And don't ignore the advice to edit your posts to remove details of who was driving