3 years between PCN and Court presence demanded

Coupon-mad

You then sought a set aside of that order.

No, the D followed my suggestion of writing to the Judge objecting to the strike out decision and explaining why they did have a defence and asking for a preliminary hearing. This is 30 minute hearing so seems to be the prelim hearing.

No set aside was needed, the Judge appears to want to hear the main points and this must concentrate on the POFA IMHO, because that was the main thrust of why the Judge had fallen into error to strike out a registered keeper's defence against a PCN that can't hold that person liable.

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?

So this was a PCN on the windscreen (a 'Notice to Driver' as defined in the POFA) which must be followed by a fully compliantly-worded NTK (that Final Demand, which has absolutely NOTHING from para 8 of the POFA in it to warn of keeper liability). Therefore, there can be NO keeper liability.

So, they have failed the requirements of Schedule 4 and there is no lawful assumption that a keeper 'was/must have been' the driver (POPLA Lead Adjudicator/Parking law expert barrister Henry Greenslade's article comes in here).

So, they cannot hold the registered keeper liable AT ALL, and cases like the Appeal in Excel v Smith, show that as a fact and any Judge deciding that a keeper can be held liable outwith the POFA, falls into error. And Excel is a sister company to VCS and both are owned by Simon Renshaw Smith, and so the Claimant knows very well that they CANNOT use the law of agency (CPS v AJH Films) either. Kicked into the long grass by the persuasive on the lower courts, Excel v Smith appeal case (make sure your Judge KNOWS this is an appeal (Senior Circuit Judge level) decision.

And they know from cases like Excel v Lamoureux that a non-POFA NTK is completely fatal to their case, and they admit it's non POFA in their WS!!

You need to be totally confident at explaining that.

I think a skeleton argument IS the best thing to file & serve with evidence now, given that you have never been told to provide a WS, yet you need a 'crib sheet' for court (and the skelly will be your crib sheet) and it assists the court too, and it will be emailed to the other side too - by Sunday I'd suggest - so they can't say they didn't know your defence points.

KeithP

Coupon-mad wrote: »

KeithP wrote: »

You then sought a set aside of that order.

No, the D followed my suggestion of writing to the Judge objecting to the strike out decision and explaining why they did have a defence and asking for a preliminary hearing. This is 30 minute hearing so seems to be the prelim hearing.

No set aside was needed, the Judge appears to want to hear the main points and this must concentrate on the POFA IMHO, because that was the main thrust of why the Judge had fallen into error to strike out a registered keeper's defence against a PCN that can't hold that person liable.

Excuse me...

In post #67 you suggested that the Order be set aside:

Coupon-mad wrote: »

If it were me I would write to the Judge by name saying you received the order which was made without a hearing, and are alarmed that it's been summarily adjudged, in view of the complete defence a registered keeper will have under Schedule 4 of the POFA 2012 (which was expounded in some detail in the defence), you ask the court to set aside the order in that basis, and to provide a hearing date.

In post #73 the OP tells us that he sent a letter to the judge which contained:

I therefore ask the court to set aside the order...

I maintain that my short summary in post #110...

KeithP wrote: »

You then sought a set aside of that order.

...is correct.

WhoDunnitDevil

I can't see post numbers right now as I am on my phone, but it was my Las post, and contained a summary of the time line so far. Pertinent part copied below, my letter asked for two different things. The response from the court isn't clear as to which they are granting.

Quote.....
"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."

Coupon-mad

KeithP wrote: »

Excuse me...

In post #67 you suggested that the Order be set aside:

In post #73 the OP tells us that he sent a letter to the judge which contained:

I maintain that my short summary in post #110...
...is correct.

Yes, sorry, but there was no formal set aside application or fee. Just a letter saying 'oi you slipped into error here, why not provide a hearing?'

The response from the court isn't clear as to which they are granting.

I agree but 30 mins tells me it's a prelim hearing (yes effectively the Judge will muse about whether you have a case to 'set aside' the strike out). The Judge wants to hear your argument, and so he/she should! The case should NEVER have been struck out.

But from your point of view, you need to be completely confident about the POFA issue as per my post last night. Do not expect the Judge to help you or know about that individual schedule of law.

Assume the Judge has never seen a keeper argue 'no keeper liability' before and just thinks all defendants are drivers.

Walk the Judge through it, take 3 copies of everything (POFA, Henry Greenslade, and Excel case transcripts x 3) and point out that the Claimant has ADMITTED they can't hold a keeper liable, so the Claim should be struck out and you should be refunded your loss of leave/earnings and costs for attending a doomed case where you are NOT the liable party in law and cannot be assumed to be.

In 30 minutes I would think that's all that will be covered and you SHOULD IMHO be able to win at this hearing.

WhoDunnitDevil

Hi guys, Is there any succinct way to explain why Beavis is not relevant here and can't be used as a blanket for all PCN cases please?

Umkomaas

WhoDunnitDevil wrote: »

Hi guys, Is there any succinct way to explain why Beavis is not relevant here and can't be used as a blanket for all PCN cases please?

Try a forum search on keywords 'Beavis distinguished' or 'Beavis not relevant' or similar - you create some keywords to interrogate the forum.

HOW TO USE THE FORUM SEARCH FUNCTION:

Hit your 'Back' button to get back to the forum thread list. On the bar just above the threads you'll see the 'Search' function. Click on the 'Advanced Search' button and on the following page place your keyword(s) in the 'Search By Keyword(s)' and make sure the 'Show Results As' button (at the foot of the window) is changed from 'Threads' to 'Posts'.

WhoDunnitDevil

Hi guys,
I think this is the final version apart from the red wording which I will amend after following Umkomaas advice on Beavis. (Thanks)

Any advice is very welcome. Does it sounds ok? Am I referring to the correct areas? Have I omitted anything critical?

I think it reads much better now; more smooth and with less irrelevant content. I have removed some of the wording, specifically from Section 4 of the POFA as this is included in the Appendix.




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.
3. The Defendant was not the driver at the time of the allegation.
4. As the Defendant was not the driver of the car at the time of the alleged incident, the only way the Claimant can pursue the Defendant as the registered keeper of the vehicle is with full compliance of The Protection of Freedoms Act (POFA) 2012.
5. The Claimant states that they do not rely on the POFA and their non-compliance is clear.
6. The case - Excel Parking Services Limited Vs Smith, decided upon by Senior Judge Smith, shows as a fact that the Claimant cannot hold a registered keeper liable at all without POFA 201 compliance.
7. By openly not following POFA 2012, the Claimant has no right to hold a keeper as liable, as such the Defendant is not liable in law and the claim should be struck out.
8. The Defendant would like, if possible, to please be refunded for expenses incurred whilst defending this false claim.

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:
a) Assert why the Registered Keeper was the driver. Or
b) Comply with the POFA 2012
2) The Defendant was not the driver at the time, hence (a) is not possible to achieve.
3) We are therefore questioning the Claimants ability to achieve (b). By omitting compulsory wording, the Claimant has not complied with POFA 2012. The Claimant actively says that they do not comply with or rely upon POFA 2012, in which the wording must be adhered to exactly. Specifically, the PCN does not adhere to the wording prescribed in the below sections of POFA 2012. (Not an exhaustive list, but the most obvious omissions).
a) Paragraph 9, Section 2, Subsection (e).
b) Paragraph 9, Section 2, Subsection (f).
4) The Claimant cannot ignore POFA 2012 and assume the keeper was the driver at any given time. The onus is on the Claimant to prove this, or they simply must follow POFA 2012, any other course of action is not legal. As demonstrated in the case - Excel Parking Services Limited Vs Smith (Appendix 5) in which Senior Judge Smith over-ruled an earlier ruling which allowed an assumed contract to be formed between a non-driving keeper and a parking enforcement agency.
Similarly, we see more evidence in the case - Excel Vs Lamoureux (both 1 and 2, Appendix 6 & appendix 7) 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”
Finally, we have more evidence of the necessity of compliance with POFA 2012 in the Parking on Private Land Appeals (POPLA) annual report 2015 (appendix 8) where Henry Greenslade clearly states on page 13 that there is no assumption that a vehicle’s registered keeper is also a driver, and that a keeper has no legal obligation to name the driver:
“However keeper information is obtained, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. Any evidence in this regard may therefore be highly relevant.”
5) Whilst the non-compliance with POPLA should be enough evidence for the Claim to be struck out. For completeness, the Defence would like to respond to the Claimants allegations within their Witness Statement. 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.
a. Reference paragraph 53. Non-compliance with POFA 2012 has been addressed above in detail. It is not an option to comply with POFA 2012, it is compulsory.
b. Reference paragraph 54. The Defendant could not have provided the details of the driver as he does not know who the driver was. He has used the only tool at his disposal, his work diary, (Appendix 2) 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, non-eventful day three years ago.
c. Reference paragraph 55 & 56. It is not permissible for the Claimant to ignore POFA 2012. As explained and justified above and referenced against other cases.
d. Reference paragraph 57.
a. There are several people who have driven the Defendants car over the last four years (Appendix 1). Despite the Claimant’s assumption to the contrary, anybody who has fully comprehensive insurance 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” as the Claimant suggests.
b. Please see a screenshot of the defendant’s diary from the day in question (Appendix 2). It offers no resolution on where the Defendant was at the time of the alleged incident. Please note this is a diary used for work appointments only, 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
e. Reference paragraph 63. The case in question is wholly distinguishable from the Beavis case because in the Beavis case the Defendant was driving the vehicle. The Defendant in this case is the keeper of the vehicle and not the driver, this makes the Beavis case non-comparable.
f. Reference paragraph 67.2. The Defendant wholly denies parking the vehicle at the Park in question on the Contravention Date.

Appendix
1) List of the initials of individuals who have driven the Defendants car over the last 4 years.
2) Defendants diary from the day in question.
3) Schedule 4 of the Protection of Freedoms Act (POFA) 2012
4) POPLA annual report 2015
5) Excel Vs Smith
6) Excel Vs Lamoureux (1)
7) Excel Vs Lamoureux (2)

Coupon-mad

Looks good. Get it emailed to the other side (in full, maybe more than one email so they are not large) and take a copy into the local court in the morning, or if you can't print it all out and get a friend/relative to hand deliver it. Put it in a ring binder or plastic wallet in order, with everything numbered, and secure, and with the claim number at the top and the date/time of the hearing, so the court clerks don't sit on it in the ''to do pile''.

If the Judge thinks you can be held liable they need their head examining, and/or you would have an appeal case like Mr Smith had to go through (he posted on pepipoo forum, lost due to a clueless Judge who didn't understand that keepers cannot be held liable outwith the POFA, then appealed and won and used his costs to pay for a transcript, to help people like you).

The only thing I would add is, when you talk about Excel v Smith, make sure you say this was a case heard on Appeal due to the previous County Court Judge falling into error by assuming that a keeper who was not driving could be held liable outwith the POFA, which clearly they cannot.

If you spell it out I hope your Judge will find it hard to step outside this fact!

Also, I am sure in your original defence you also had the two safety nets of:

1. 'no contract/the signs must have been unclear' and

2. 'the parking firm has not shown authority flowing from the landowner, or a compelling legitimate interest in charging an unconscionable sum that overrides the rights and interests of the consumer, and so this case can be fully distinguished from the Beavis case' (or words to that effect).

I'd be surprised if the Judge wants to hear more and order a full hearing to go through all the evidence but if they do and ask you what your other defence points are (because they couldn't be bothered to read your defence) they are those two things.

Oh, last thing - look at COSTS SCHEDULES in the NEWBIES thread and throw one together so you can hand it over when the Judge finds in your favour and says 'anything else?'. YES, your costs! Take proof of income too, wage slip etc.

WhoDunnitDevil

Thanks for that advice, I will do all those things. I can see only the wording on Beavis that I pretty much had in my defence. So I think I'll switch that back in. I was hoping for something succinct but it appears succinct on a complex case isn't possible!

Coupon-mad

This person's point 5v is quite succinct:

https://forums.moneysavingexpert.com/discussion/5907035/court-claim-from-pcm-gladstone

HTH