A PCN at claim stage with a Contract Hire Vehicle advice sought/few Q's

Redx

VCS have never complied with POFA, so there is no doubt in my mind that their NTK will have failed POFA , so you put them to strict proof of compliance if they are alleging they complied, but they usually state that they are not using POFA but are saying the peobability is that the keeper and driver are one and the same person

if the contract was live at the time of the issue , then you can still questions its terms and conditions under contract law, it may not be fit for purpose if it hasnt changed to adapt to the IPC CoP , or the CRA 2015 etc

SophS

Redx wrote: »

...so you put them to strict proof of compliance if they are alleging they complied

No, the NTK doesn't mention PoFA. But the VCS witness statement does say the following word for word exactly as written below.

"32. The Claimant further relies upon Schedule 4 of the Protection of Freedoms Act 2012 and contends that they can hold the Defendant liable for the PCN under the said enactment. The relevant clause is;

4 (1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle...
...5 1 (b)...if they are unable to take steps to enforce that requirement against the driver because the creditor does not know both the name of the drive and a current address for the service for the driver..."


And it ended at that.

When I post my final draft WS in #34 above I asked for any comments on the following pars

12. None of the documents set out in paragraph 13: 2 (a) (b) or (c) of POFA 2012 were ever provided to the Claimant by the vehicle hire firm XX Automotive - who are also the registered keepers of the vehicle (Exhibit 3).

13. Had the Claimant indeed received the above mentioned documents, the Claimant was required to send a copy of those documents to the Defendant within 21 days after receiving them as set out in paragraph 14 (2) and (3) of POFA 2012 of the above exhibit. Again, the Claimant failed to do this.

14. As XX Automotive failed to provide the Claimant, VCS, with copies of the documentation as set out Par 13 of POFA above, they failed to discharge any liability they had as keeper of the vehicle under POFA and as such, XX Automotive are the party liable under the provisions set out for any charges brought by the Claimant.

but nothing so far so im not sure if they are strong points.

In post #1, I stated I am the hirer/leasee of a contract hire vehicle.
The NTK was sent to the contract hire co and they in turn photocopied it and sent it to me.
At the same time they gave VCS my details in a simple letter signed "maintenance administration" (I got a copy of that too).

Coupon-mad

Whose Facebook group? Not Tony Taylor, ex-PPC employee?

Please ignore what the person on FB said.

Everything we've posted to you here is correct and worth using. Stick with us!

I've explained that the 2012 contract is obviously out of date and cannot be 'current' and nor can it have just rolled over year on year with no changes, for more then one reason...including the Oct 2012 new law and the fact VCS are not in the BPA either.

The contract and the signs would have had to have been changed quite significantly after Oct 2012 AND there can't be anything in the contract allowing VCS to hold hirers liable, because pre-POFA, that potential right (hirer liability) didn't exist.

Your points are strong that VCS failed to properly transfer liability and their WS is a template, and they can't rely on the POFA or hirer liability as long as you know how to explain this to the Judge.

SophS

Ok, I’ll word it along your lines in front of the judge when it’s my turn to speak.
I hope the judge will allow it because they weren’t exact as this in the defence or WS having just came to light....(although both the liability argument & the authority to bring charges were).

The Facebook group is called Private Parking Court Defence Group which members can only join once they’re at court stage, it’s a private group.

Coupon-mad

Stop using it. Neither any parking appeals firm nor Facebook is worth using.
This forum is what you need. Have you searched for hearing tips so you are ready?

Redx

Too many cooks !!

I have been coming here for 7 years and I know who I would be listening to

SophS

I’ll search Hearing Tips, thank you.

Just out of interest, the WS from VCS mentioned that they didn’t get my defence, I wasn’t aware I was supposed to send it to them. I thought it was to be emailed to CCBC only.
Will this be detrimental to my hearing?

On a completely separate note, this featured in local news today. https://www.thestar.co.uk/news/traffic-and-travel/judge-throws-out-fines-issued-notorious-sheffield-car-park-1378720

KeithP

SophS wrote: »

Just out of interest, the WS from VCS mentioned that they didn’t get my defence, I wasn’t aware I was supposed to send it to them. I thought it was to be emailed to CCBC only.

You did right. It is the CCBC's job to send a copy of your Defence to the Claimant.

Didn't the CCBC write to you telling you that they had sent your Defence to the Claimant?

But you may consider it prudent to email a copy of your Defence to the Claimant, if only to avoid the hearing being adjourned on the day.

Coupon-mad

We had VCS say the same thing on another thread, and I drafted a sarky reply telling them they had because it was served via MCOL.

I can't find it now but you could reply with a copy and tell them to look down the back of the sofa next time, as clearly it's not just court claims they keeper losing.

SophS

Update:
Hearing was this morning and there were around 6 VCS claims being heard at 10am. I was second to be heard and went in with District Judge Hickingbottom and a Miss Jackson for the claimant.
I can't remember the firm she represented but ill try to relay what happened this morning.

VCS rep didn't have my defence and tried to get a default judgement against me off the bat, however the judge did have a copy and questioned why VCS hadn't asked for a copy from court or from myself. They also seemed to have lost the back page of my WS. They had nothing other than the WS that VCS had prepared.

However, I lost. So I guess you win some and lose some.

It came down to one point, the judge not believing that I didn't know who the driver was, not accepting that any number of people could have driven on the alleged day and not liking my argument that I wasn't obligated to name the driver. I quoted POFA and Harry Greenslade to try and explain myself but it didn't really help.

She agressively questioned why I didn't respond to the NTK in naming the driver if I wasn't the driver. She asked, many times who the driver was and why I wouldn't name them. I tried explain that there were a number of adults who could have driven and that although I had given the keys to one of them it could have been any. She asked me to name that person, I replied that establishing who the driver was laid with the claimant and that I wasn't under any legal obligation to name them nor did I want them to be pursued by the claimant.

Although my responses were quiet and calm, this back and forth really threw me off the skeleton that I had prepared and the judge moved on to the claimants response to this, in which they determined that since I'm the hirer I must be the driver.

So the judge agreed. I didn't get the chance to mention non compliance of POFA to hold me liable or the pre POFA outdated contract, I tried but the judge said she'd already made up her mind and determined that I was the driver.

I then tried to explain that the parking site in question has both visitor and permit spaces and that the evidence presented by the claimant does not show the vehicle to be parked in a prohibited space. This also was dismissed, she accepted that if VCS say you were parked illegally then you were parked illegally, then she moved on to the additional charges of the claim.

She didn't allow the additional debt recovery charges not because I stated abuse of process/CPR44.3 or PoFa 4: 5 but simply because the claimant did not have the relevant costing document with her.

In the end the charge stand and I must pay the £100 plus fixed costs so about £150 in total.