DCB/NEXUS Parking Charge @ Strensham Services Small Claims intiial letter/defence

Coupon-mad

The Defendant was also the driver at the time.

Ooer, why would anyone put that?  CP Plus don't use the POFA and can't hold a registered keeper liable!

peterkgb1

Coupon-mad said:

The Defendant was also the driver at the time.

Ooer, why would anyone put that?  CP Plus don't use the POFA and can't hold a registered keeper liable!

The template seems to suggest if you know you were the driver (I do), to state that here

Redx

peterkgb1 said:

Coupon-mad said:

The Defendant was also the driver at the time.

Ooer, why would anyone put that?  CP Plus don't use the POFA and can't hold a registered keeper liable!

The template seems to suggest if you know you were the driver (I do), to state that here

Omit it , keep POFA in play , let them take it to the wire , it's for them to infer or prove

peterkgb1

Redx said:

peterkgb1 said:

Coupon-mad said:

The Defendant was also the driver at the time.

Ooer, why would anyone put that?  CP Plus don't use the POFA and can't hold a registered keeper liable!

The template seems to suggest if you know you were the driver (I do), to state that here

Omit it , keep POFA in play , let them take it to the wire , it's for them to infer or prove

so does that mean, I just stick to the template and add nothing else to it.  We overstayed the time as we fell asleep in the car park, but if I say that, then I admit who the driver was.  Thanks

Redx

Don't admit any of that , not unless asked in the hearing , if the court hearing happens

2) becomes registered keeper but liability is denied

Make Nexus prove their case , only bring out facts like the above when put on the spot , in court , never volunteer information that assists the claimant , but never lie either

peterkgb1

So from what I can gather so far, using the template off this site, my section 2 and 3 look like this for my defence:

The facts as known to the Defendant:

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.  

3. There was insufficient signage

The car park in question has no clear signage to explain what the relevant parking restrictions are - whilst driving into the service station, the details on the signs are are too small to read whilst moving and then at many parking spots, it is not possible to see either the sign or the detail of the sign.  This means no contract can be formed with the landowner and all tickets are issued illegally.


does this seem good to go?  Many thanks

peterkgb1

Coupon-mad said:

Nope, you haven't looked at any other CP Plus defences, there are shedloads and they all talk about the POFA and why the keeper can't be held liable.    There are loads of Group Nexus threads about Highview or CP Plus,  Copy one.

We've been rather busy drafting our detailed comments to the Government consultation as all posters here must do, and sharpish.  Please tell us you know about these other two threads (below) and have done both required urgent tasks?

I really hope you have done the Government Consultation and objected absolutely to ANY debt recovery fake 'costs' being added on top of a parking charge (of course) and told them what you think of them increasing charges to £130 instead of £100...which is already extortionate.

You have 5 days to do the consultation.  Please, please, do and do it by email so you attach evidence.  Spread the word, is closes within days, next week!

Also, I hope you've also registered for the Group Action, against the DVLA (open to anyone with a PCN since 2018?).  Gotta be in it to win it!  Nothing to lose, and it's genuine.

Read the threads about those important matters, they both need doing, right now, this week. 

No links, they are both current threads, easy to find and very important, and in your interests to do both. 

yes, I've done consultation and plan to register for group action.  Looking up CP Plus defences.  Don't know if I'm being particularly stupid, but the search facility throughs up such a broad arrow of links, it's really difficult to find the successful defences

peterkgb1

I hope I'm getting there!  This is what I have as my 2 & 3.  Do i have anything incorrect or missing something.  Thanks for all the help.  I've got these from other posted defences on the forum that I'm finding.

2.       It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied.  

3. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, 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.'

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Coupon-mad

I this think you’ve copied all that from a POPLA Appeal, not a defence. That is much too long.

Search for Highview defence POFA and look for one of the dozens done around May.  There are more of them than CP PLUS defences as a lot are being cancelled by MOTO.

peterkgb1

Coupon-mad said:

I this think you’ve copied all that from a POPLA Appeal, not a defence. That is much too long.

Search for Highview defence POFA and look for one of the dozens done around May.  There are more of them than CP PLUS defences as a lot are being cancelled by MOTO.

Thanks have done that and now have this:

2. It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the Defendant. The Defendant was not the only potential driver of the vehicle in question and is unable to recall who was or was not driving on an unremarkable day nearly 3 years ago.

3. The Defendant believes that the Notice to Keeper was not compliant with the Protection of Freedoms Act 2012 ('PoFA'), and therefore incapable of holding the keeper liable with the ‘keeper liability’ requirements set out in the PoFA, Schedule 4.Following on from [4] where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in the PoFA, Claimant has included a clear falsehood in their Particulars of Claim (‘POC’) which were signed under a statement of truth by the Claimant's legal representative who should know (as the Claimant undoubtedly does) that it is untrue to state that the Defendant is 'liable as keeper'.  This can never be the case with a CP Plus Limited claim because this parking firm, same as any Group Nexus company, have never used the POFA 2012 wording, of their own volition.  Not only does the POC include this misleading untruth, but the Claimant has also added an unidentified sum in false 'damages' to enhance the claims.  So sparse is their statement of case, that the Claimant has failed to even state any facts about the alleged breach or the amount of the parking charge that was on the signage, because it cannot have been over £100. Which then leads to the question, how does the Claimant arrive at the Amount Claimed for a Total of £190.07. The Defendant has excluded the £35 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point.