Horizon Parking Notice

Redx

The first postal PCN was the NTK , a postal Notice To the Keeper , which in their case won't comply with POFA

Coupon-mad

Please crack on tonight and get that easy WS and evidence put together.  You have the links from me.

Julie22

Oh thank you thank you so very much it is making much more sense now - we will crack on now.  I am so sorry I did not understand earlier.  I so appreciate your help with all of this.

soolin

Old thread re opened at merged as requested 

Julie22

Ws started - would you mind taking a look and see if anything else needed please.
Is more detail needed re pofa non compliance please? Do I have to point out how they did not comply pleaae? 
many thanks - link below
https://drive.google.com/file/d/1jEpsGbU_OBgOl5f_Vx933Zr1ZDy3pyIh/view?usp=sharing

Coupon-mad

The only way a WS like that could work, is if she crosses her fingers and tells the court that she is unable to attend the hearing and relies upon the court considering her lack of liability as registered keeper, as set out in her defence and witness statement, and makes a decision on the papers.

Hmmm...thinking about this, she might have to do it that way because her only defence point is that she isn't liable.  She has NOTHING ELSE in the defence so she is stuck with that position and might be best saying she cannot attend and asking for a decision on the fact of law of the lack of POFA compliance (the NTK being served too late AND not including the POFA wording set out in Schedule 4 of the POFA, para 9(2)F about liability transferring to the keeper. 

Such a shame.   You were here in 2020 and it could have been defended properly.  We have an easy to adapt (in half an hour!) template defence here that would have given her everything she needed, and would have given her a better defence than that.

She was advised by parking fines limited.

That was unnecessary and is a shame.   

You were posting here in 2020 and it could have been defended properly for free with our help.  

We would have given her everything she needed, and would have given her a better defence than that.  And she could have attended the phone hearing and talked as a witness about what happened...

...but in this case, I think she shouldn't attend the hearing but she MUST tell the court that or she will get clattered for costs and being unreasonable.  It's OK if you tell the court you can't attend, in good time..  

And I think she should state in her email when she files and serves this WS and evidence (email to the local court and the solicitor at the same time) that she cannot attend due to the fact she has a young baby and a prior appointment that day that can't be changed.

I would add something at the start of that WS to explain that she is the registered keeper but has seen no evidence as to who was driving, and that there were multiple possible drivers in the family who might have used that car park on an otherwise unremarkable date back in 2019.  This was after all, nearly 2 and a half years ago and before she had her baby, so not a time that is at the forefront of a new mother's mind.   She can say that the Claimant's evidence is sparse but she has done enough research to learn that, in the absence of any evidence of who was driving, a registered keeper cannot be held liable by this parking firm.  

This Claimant, like a handful of other BPA AOS member firms, have never used the 'keeper liability' law (Schedule 4 of the POFA) in wording - in particular, paragraph 9 and especially omitting wording about keeper liability (para 9(2)f of Schedule 4) - nor insofar as the 14 day deadline to serve a Notice to Keeper.  This was a non-POFA Notice and would have required evidence of the driver as the party to the alleged contract, and yet there is none and the Claimant seems to be hoping that the Defendant and the court won't know the difference with their Notice to Keeper. This firm has shown themselves to be content, over the years, to merely pursue known drivers and cannot just sue registered keepers years later, just because the keeper has not responded.  

She will also need to append Henry Greenslade's words from the POPLA Annual Report 2015 that show that she had no obligation to respond to a non-POFA NTK that arrived months after the date they claim the car overstayed, and nor can parking firms presume that a keeper was driving, when family members also drove that vehicle.  And nor is there any failure by a person in not naming the driver because there is no such obligation in law relating to private land (the POFA 0212 having stopped short of making that an obligation because the power they were giving to clamping firms was concerning enough):

Add this:

The vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:-
Understanding keeper liability

“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

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. [...] If {POFA 2012 Schedule 4} is not complied with then keeper liability does not generally pass.''

And here is the exhibit to add that confirms this:

https://assets.ctfassets.net/jsycjdw1p8kq/1BbHkInc8M97VAxJjjasLe/b6ac462cf8916a04597fa65628a53726/popla_annualreport_2015.pdf

If she has an email copy of the car insurance from 2019 that shows more then one driver, then append that as well as evidence that she is telling the truth, and cover the FIRST NAMES of the named drivers to protect them from being pursued (unlikely).

Julie22

I cannot thank you enough for all this information - such a shame she didn't continue with this last year as you say.  It has been a bit of a year for her and this has been worrying her so much she has buried her head in the sand I think.  We will get onto all our points asap.  Thank you again

Julie22

Thank you again so much coupon-mad we so appreciate all your help especially as we should have taken your help last year.

If you do have a moment would you mind checking out the ws and email links below please to make sure we are on the right track before we complete names and claim nos etc to send off?
Struggling to get the 2015 annual report into the document  - would the link be enough please?  Will keep persevering!

Also do I need to tell the solicitor in the email I send them I will not be attending please or just send them the witness statement?

Thank you again so very much

https://drive.google.com/file/d/1jEpsGbU_OBgOl5f_Vx933Zr1ZDy3pyIh/view?usp=sharing

https://docs.google.com/document/d/1Hyb2luMhgVICMXSgICkyZpXvwSys3nOi8cvImTcgIU0/edit?usp=sharing

Coupon-mad

Struggling to get the 2015 annual report into the document  - would the link be enough please?  Will keep persevering!

Try just a screenshot of the 2 pages that talk about 'Keeper liability' and/or try a free PDF merger tool online - very easy to merge two PDFs but make sure she has electronically signed and dated the WS and that all the pages are numbered on the word document, before you 'close' it as a PDF!

Also do I need to tell the solicitor in the email I send them I will not be attending please or just send them the witness statement?

Send ONE email from the Defendant (not you, you are not a party to this case) to both the local court and the Claimant at the same time. 

When emailing the local court (address easy to find online, usually starts 'hearings@' but if not, phone the court and ask for the right email) cc in the parking firm's solicitors and herself, so she can see that it is 'sent' (as it will also come to her).

And yes, in that single email,  just ask the court and Claimant to note that she cannot attend the hearing due to a pressing appointment that day involving her baby, and that she asks the court to hear the case based upon her papers and take due regard of everything in her defence and witness statement so that justice is properly done in her absence.

That WS looks as good as a keeper could write, based on the very sparse defence.

Julie22

Thank you thank you so very much for all your help.  Will get it submitted asap.  The time and effort your put into this forum to help us and other people is outstanding and we are so grateful to you for this.