3 years between PCN and Court presence demanded

WhoDunnitDevil

Thanks, will do. Current intention is no WS but a skeleton which I will upload this evening. At least the latest draft.

I have not seen the PCN. Not in its original form or a copy of it at any point in the recent correspondence.

KeithP

But the Claimant clearly states they are not relying on POFA, so does it really matter what wording was on the PCN?

See here:

KeithP

WhoDunnitDevil wrote: »

Current intention is no WS...

Are you sure that's a good idea?

Not a tactic I've seen tried here before.

What is the Date of your hearing?

Umkomaas

Current intention is no WS

But aren't you required to submit a WS?

WhoDunnitDevil

This has all seemed to break the usual conventions. The judge ruled against me with no wording on the letter that was compulsory and for reasons which seem strange. I wrote a letter to the judge asking for a hearing which has been granted. The letter requesting my presence had no details of a schedule or information which I needed to provide. Such as a WS. Hence why I am going with a skeleton instead.

Hearing is on tuesday morning.

WhoDunnitDevil

Sorry everyone, the PCN was a part of the pack. I don't know how I missed/forgot that. I feel like this has made me forget my own name. It is now uploaded in the drive (below) as well as an edited version of the letter. Thanks to KeithB for spotting an error.

https://drive.google.com/open?id=1-p0ErjOJd8YzFphkY_eAGhGokd8Jgtfo

WhoDunnitDevil

I still think that the PCN covers very little of the requirements within POFA, but is that a misunderstanding on my part, that it is not supposed to, it is the following letter which must comply? Sorry if this is something I should have picked up from the POFA, I have re-read it numerous times but it is so hard to follow I am confusing myself.

Either way, as KeithB says, they have said that they do not rely on POFA so I must rebute their other points I think.

Happy to be corrected/guided on this!

WhoDunnitDevil

All,

Please see below my current Skeleton draft. If it helps I can drop a Word doc in the Googledrive, just shout if this is useful. There are some red sections I need to complete. Any recommendations on these are extremely welcome. Any general suggestions on content or layout also extremely welcome.

Summary
1. The Defendant received a letter on 27th March 2018 which alleges to a parking offence on 6th March 2015.
2. The Defendant was the registered keeper of the car at the time of the allegation.
a. The Defendant was not the driver at the time of the allegation.
b. The Defendant does allow other people to drive his car from time to time, including friends and family. These individuals have their own insurance, hence can drive any car with 3rd party cover.
c. The defendant thinks it is unreasonable to be expected to clearly remember a non-significant date from three years ago in detail.
d. The Defendant has reviewed his diary and calendar to look back three years to the date of the alleged offence and cannot see any specific reference or reminder as to who may have been driving the car at that time.
3. The Defendant has done more than is legally required to assist the Claimant.
4. The Defendant was not the driver of the car at the time of the alleged incident, only the registered owner and as such cannot be pursued without full compliance of The Protection Of Freedoms Act 2012.

Skeleton
1)
• As the claimant does not know the name and address of the driver at the time of the offence in question. In order to claim unpaid parking charges from the keeper, the Claimant must either:
• Assert why the Registered Keeper was the driver. Something which is untrue, hence there is no evidence of, or
• Comply with the POFA 2012
• By omitting compulsory wording, the Claimant has not complied with POFA 2012. The essence or assumed information within the notice is not enough to comply with POFA 2012, the wording must be adhered to exactly. Specifically the PCN does not adhere to the wording prescribed in the below sections of POFA 2012.
o Paragraph 9, Section 2, Subsection (e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper-
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver.
o Paragraph 9, Section 2, Subsection (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver.

2) Please see a list of the initials of individuals who have driven the Defendants car over the last 4 years. (Appendix 1).

3) Please see a screenshot of the defendants calender from the day in question. It offers no resolution on where the Defendant was at the time of the alleged incident. Please note this is a work calender, hence it is sparsely populated, this is the only thing the defendant can look back on to trigger any memory of the day in question. This illustrates the Defendants efforts in attempting to recollect events from a generic day of more than three years ago.

4) According to the Claimant’s witness statement, the Claimant seems to believe that they do not have to adhere to POFA 2012, the Defendant would like to respond to the notes in paragraph 53 to 57.
1. Reference paragraph 53. To be clear. The Claimant does need to rely on POFA 2012 if they are unsure on who the driver of the vehicle is; that is an absolute fact, as demonstrated in Excel Vs Lamoureux when the District Judge says: “Yes, helpfully, I do know that there is case law that says the keeper is not the driver and there is no such assumption, but helpfully, Mr Lamoureux has produced part of an extract. It is R (on the application of Duff) v Secretary of State for Transport [2015] EWHC 1605, but there is other case law to this effect. There is no reasonable presumption in law that the registered keeper of a vehicle is the driver. It is trite law. I do not even need to rely on R (on the application of Duff v Secretary of State for Transport). Everybody knows that you cannot assume that the keeper is the driver which is why most parking companies, such as Parking Eye, always rely on the Protection of Freedoms Act 2012 and the notice should comply”
2. Reference paragraph 54. Ignoring the fact that it is not a legal requirement, the Defendant could not have provided the details of the driver as he does not know who the driver was. The Defendant has stated that it was not him, and he does not know who it was. He has used the only tool at his disposal, his work diary, to ascertain what information he can from the time. It is unreasonable to assume that the Defendant should be able to remember specifics from such an otherwise non-consequential day, more than three years ago. It is similar to being asked to remember what you had for dinner on a specific day three years ago because someone ate the King’s food on that date, and because you can’t remember what you had, you are deemed to be guilty of culinary treason.
3. Reference paragraph 55 & 56. [Insert summary of case, refute etc.]
4. Reference paragraph 57. As stated above and in relation to appendix 1, there are several people who have driven the Defendants car over the last four years. Despite the Claimant’s assumption to the contrary, anybody who has fully comprehensive cover is usually allowed to drive any other car. The defendant does not have a long list of individuals registered to drive their vehicle, this is irrelevant to the fact that a number of individuals can and do drive the Defendants vehicle. Therefor it is clearly not “a simple process of elimination”.
5. Reference paragraph 63. [Insert summary of case, refute etc. Explain why it is distinguishable]
6. Reference paragraph 67.2. The Defendant wholly denies parking the vehicle at the Park in question on the Contravention Date.
7. Reference paragraph 69-73. [Advice on how to phrase this area much appreciated]

Appendix
1
1. Defendant
2. CP
3. MW
4. FW
5. RP
6. MO’S
7. SB



2
3. Entirety of the POPLA Annual Report 2015 by Henry Greenslade.
…
..
…

KeithP

Forgive me, but I'm getting a bit lost here.

Can I recap?

In March you received a Claim Form from the CCBC.

Filed a Defence in end of April.

In July a judge decided the was no Defence and the Claimant could ask for Judgment.

You then sought a set aside of that order.

<<<<<< b i g - g a p >>>>>>

25 October you tell us about a hearing.


It looks to me that the hearing on Tuesday is a Set Aside hearing.
If so, your Witness Statement should be one explaining why the Order made in July should be set aside - not a WS for the original case.

If I've got that right, and it's a big 'if', then you really do need a Witness Statement, a Draft Order and a skeleton Defence.

Maybe you need to do something like this poster did:

forums.moneysavingexpert.com/showthread.php?p=74830861#post74830861

I really must add a caveat - I am not a lawyer so perhaps you need to wait for the confirmation of others before following my suggestion.

WhoDunnitDevil

23/07/18 The Court struck out my Defence but failed to comment on how/why I should respond.
Advice on here was to write a letter very quickly, I did on 26/07/18 and asked for the Order to be set aside and a hearing date to be granted or for a short preliminary hearing to deal with the question of the POFA.
On 01/09/18 I received a Notice of Hearing for 30/10/18. No mention of what it would be about or for. (Meaning I requested 2 things, no mention of which this would be). The letter says nothing about a WS, timelines or anything much else really.