Driver / Not Driver: Undue Reliance on POFA in Court Defences

bargepole

I've seen many threads on this forum, where people use paras. 2 and 3 of the template defence to simply state that the driver has not been identified, and that the Claimant has not complied with POFA, therefore cannot be held liable as keeper. 

In my view, this approach is completely WRONG. The particulars of claim from most PPCs will say ''The Defendant was the registered keeper and/or driver of the vehicle on the material date(s)'', or words to that effect. They don't know who was driving at that stage, but in most cases, the Defendant does.

If the Defendant WAS NOT the driver:

Then the D may have a valid Defence on that point, IF it can be shown that Notice To Keeper (NTK) was not compliant with either sections 8 or 9 of POFA, and/or wasn't served within the statutory time limits. But it needs more than a bare denial. The D should state whether they were a passenger in the vehicle, or were at a completely different location at the time. They should also state that the driver was insured to drive the vehicle, but there is no legal obligation to name that person.

If the NTK is compliant with the legislation, then the D can be held liable as keeper, and will have to look for other points of defence, such as inadequate signage, grace periods, and so on.

If the Defendant WAS the driver:

If that's the case, then all arguments about POFA are out of the window. Paras 2 and 3 of the Defence need to state the FACTS of the parking event - anyone with legal training will confirm that the golden rule is, first establish the facts, then apply the law to the facts. This is the approach that most Judges will take, and if it's not clear from the defence who was driving, the Judge may well ask ''Were you driving the vehicle on this date?''. Lying may result in a finding of Contempt of Court, far more serious than any parking claim.

Following on from the defence, the D will need to file a Witness Statement, written in the first person. This is where you expand on your main points of defence, with evidence to support your arguments. These will carry far more weight if you have confirmed that you were driving, and can give a first-hand account of what signage was present, or the pay machine was faulty, or your lease terms in residential cases, or whatever the basis of your defence is.

D_P_Dance

 but in most cases, the Defendant does.

Not necessarily.  If my wife drives somewhere. after she is out of eyesight I have no idea who is driving.  Other than that, I agree.

Le_Kirk

Good advice @bargepole and this why the regulars don't suggest that posters claim not to be the driver if they were, as it only takes a simple question from a judge asking "were you the driver on the day?"  Often drivers will say they weren't and then go on to make the mistake of stating they "revisited the site in order to get pictures of signage".  Now they may have been a passenger in which case they can revisit but it would/could look to a judge that they are trying to hide the truth.  There is nothing wrong (in my opinion) with saying they made a visit to the car park for research purposes after the keeper received the PCN but it is far better to say this only when they are definitely NOT the driver.  As you say, if they can prove they were elsewhere on the day, there is no room for doubt and the balance of probabilities swings heavily in favour of the non-driving keeper/defendant..

D_P_Dance

Sometimes one genuinely cannot remember who was driving  When we drove to and from Spain my wife and I would change seats  several times. :

hullensien

in my case when TNC applied to DVLA they stated “driver” had not responded within 14 days - should they not have stated keeper?

Jenni_D

hullensien said:

in my case when TNC applied to DVLA they stated “driver” had not responded within 14 days - should they not have stated keeper?

No, as they may be claiming a windscreen PCN was affixed to the vehicle. But that opens up another POFA non-compliance on timescales.

However, this is not the thread to discuss such matters.

FrankCannon

D_P_Dance said:

Sometimes one genuinely cannot remember who was driving  When we drove to and from Spain my wife and I would change seats  several times. :

...... not while the Bentley was moving, I hope.

Le_Kirk

D_P_Dance said:

Sometimes one genuinely cannot remember who was driving  When we drove to and from Spain my wife and I would change seats  several times. :

Why, didn't you like the seats you had?