4 Year Old Claim Form!!!!

4yearoldclaim

@Redx have removed this section now. Do you think I can easily defend this based solely on:

1. Was not the driver of the vehicle and do not know who was.

2. POC state "Defendant is liable as keeper or driver' - They have failed to identify a cause of action

3. Double recovery / adding £60 damages or penalty to the original £100 PCN charge. 

4. Notice to keeper was not PoFA compliant due to wording 'liable as keeper'

Ready to send this defence in - please advise if you spot anything that needs correcting beforehand

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 and any breach of terms is also denied. The identity of the driver(s) at the material time is unknown to the Defendant, who was not the only insured driver of the vehicle in question and is unable to recall who was or was not driving on two occasions, across two days over 4 years ago. 

3. The Defendant was issued with a Claim Form by DCB Legal acting on behalf of the Claimant CP Plus Ltd, trading as Groupnexus for a Total amount of £561.96 (inclusive of £50 Court Fee & £50 Legal representative's costs). Through research the Defendant has come to understand that this relates to two separate PCNs that were issued against the Defendant’s vehicle XXXX XXX over 4 years ago on 21/08/2017 at MOTO Medway East and on 28/08/2017 at ROADCHEF Clacket Lane North.

4. ​​The Particulars of Claim state that the Defendant “was the registered keeper and/or the driver of the vehicle(s)” These assertions indicate that the Claimant has failed to identify a Cause of Action, and is simply offering a menu of choices. As such, the Claim fails to comply with Civil Procedure Rule 16.4, or with Civil Practice Direction 16, paras. 7.3 to 7.5. Further, the particulars of the claim do not meet the requirements of Practice Direction 16 7.5 as there is nothing which specifies how the terms were breached.

5. The Defendant believes that the Notice to Keeper was not PoFA compliant and therefore incapable of holding the keeper liable with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012 ('PoFA'), Schedule 4.

6. Following on from [5] where it is noted that the Claimant has elected not to comply with the 'keeper liability' requirements set out in PoFA, Claimant has included a clear falsehood in their 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 Groupnexus or CP Plus Ltd claim because this parking firm, same as Highview Parking Limited, 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 £461.96. The Defendant has excluded the £50 Court Fee & £50 Legal representative's costs from the Total amount for the purposes of this defence point. 

8. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) Lead Adjudicator and barrister, Henry Michael Greenslade, clarified that with regards to keeper liability, “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).

 Rest of template as follows....

Redx

If you were definitely not the driver , then 2 should say so , no ambiguity

Redx

4yearoldclaim said:

Redx said:

In 4) , the claimant does not have to prove that the defendant received the letters !

The claimant is under strict proof that they posted them to the correct name and address listed on the DVLA database at the time and within any applicable timescales or laws ! If they did , the letters are deemed to have arrived 2 days later

So it is that aspect that they need to prove , issue , not receipt !

9. The Defendant was only made aware of these PCNs in early August 2021 after receiving a letter of claim from DCB Legal, dated 26 July 2021. This was the first and only correspondence that the Defendant has received relating to these two PCNs. The Defendant has no recollection of receiving a Notice to Keeper PCN or any other communication relating to these PCNs prior to August 2021. The Defendant does not recall receiving the previous PCN letters  and puts the Claimant to strict proof by providing evidence that they correctly issued them using lawfully obtained DVLA details.



Changed from asking evidence of delivery to evidence of issue re notice to keeper/other comms before letter of claim/claim form.

If you were to use the above , I made some corrections ! 🤔🤔

Coupon-mad

It's not enough to just talk about POFA if you were driving. If you were not driving, then that defence point is nailed on but ONLY if you know how to explain it to a Judge.

4yearoldclaim

Redx said:

If you were definitely not the driver , then 2 should say so , no ambiguity

I cannot recal whether I was the driver or not at the time. Initially, I believed this/these PCNs were related to the time I had travelled to a festival and on the way back I decided to pull over and have a nap (taking a break due to tiredness).

However, after cross-referencing the dates of the festival, it cannot be the same journey / instance I had assumed as the festival I attended took place weeks prior. I have no recollection of visiting these services on these particular days, thus why I state I was not the only insured driver on this vehicle at the time and I have no recollection of visiting. No members of my family have any recollection of stopping at these services in my car either.

Redx

4yearoldclaim said:

Redx said:

If you were definitely not the driver , then 2 should say so , no ambiguity

I cannot recal whether I was the driver or not at the time. Initially, I believed this/these PCNs were related to the time I had travelled to a festival and on the way back I decided to pull over and have a nap (taking a break due to tiredness).

However, after cross-referencing the dates of the festival, it cannot be the same journey / instance I had assumed as the festival I attended took place weeks prior. I have no recollection of visiting these services on these particular days, thus why I state I was not the only insured driver on this vehicle at the time and I have no recollection of visiting. No members of my family have any recollection of stopping at these services in my car either.

But in a reply today you stated that you were not the driver , hence my reply. Not knowing if you were or not is not the same legal statement. You said , categorically , above , was not the driver and do not know who was !

4yearoldclaim

Coupon-mad said:

It's not enough to just talk about POFA if you were driving. If you were not driving, then that defence point is nailed on but ONLY if you know how to explain it to a Judge.

To my knowledge I was not driving. Multiple members or my family were insured and had access to my vehicle at the time.

From what I understand, the right to make a keeper liable only applies if certain conditions are met. Can I call on the claimant to prove / evidence they did meet all conditions of the POFA?

For example, "The maximum sum that may be recovered from the keeper under keeper liability is the amount specified on the notice to keeper"

- Am I right to interpret this to say they CANNOT add additional charges? So, if the PCN amount is £100, they legally cannot recover any MORE than this amount specified on the NTK (which I never received).

-Then I would explain to the judge that the 2x £170 sums they are attempting to recover (total £340 stated on the letter of claim, / total amount claimed £461.96 (excluding additional £50 court fee & £50 legal representative's costs) is in fact unlawful as they are attempting to claim additional £70 per PCN under 'damages' which they are not legally entitled to do. In direct contravention of schedule 4 of Recovery of unpaid parking charges.

SCHEDULE 4 - https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/paragraph/4/enacted/data.xht?view=snippet&wrap=true

"The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified)."

Coupon-mad

Technically right but you've missed the far more obvious wording omissions from para 9 (e.g. the really crashingly clear omission of 9(2)f, for one...you have no idea how many newbies don't see it and we keep having to point that out!) that would make even the most clueless Judge realise that the is a non-POFA PCN.

Non-POFA PCNs are allowed but cannot hold anyone but a known driver liable.  So you need to be crystal clear on that fact of law and these facts:

To my knowledge I was not driving. Multiple members or my family were insured and had access to my vehicle at the time.

Redx

As above , you made that crystal clear in that last reply but failed to nail that point in paragraph 2 , so add it and adjust 2 accordingly. If you are willing to tell us that fact , then tell the court too

4yearoldclaim

Coupon-mad said:

Technically right but you've missed the far more obvious wording omissions from para 9 (e.g. the really crashingly clear omission of 9(2)f, for one...you have no idea how many newbies don't see it and we keep having to point that out!) that would make even the most clueless Judge realise that the is a non-POFA PCN.

Non-POFA PCNs are allowed but cannot hold anyone but a known driver liable.  So you need to be crystal clear on that fact of law and these facts:

To my knowledge I was not driving. Multiple members or my family were insured and had access to my vehicle at the time.

Ok for the sake of absolute crystal clear understanding, I was not the driver at the time of the alleged offences. Other family members have access to my vehicle and were insured on it at the time. - CASE CLOSED on this point. No uncertainty and & ambiguity. 

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Para 9 (1) states: A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.

Para 9 (2) states: the notice must -

warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

Ok, I think I see what you're saying. The notice must warn me that the amount has not been paid in full. And since I never received a notice, this makes this a non POFA compliant PCN. So as the keeper of the vehicle I cannot be held liable as I was not the driver in these instances.

Let me know if I'm onto the right track or have gone way off!

Cheers
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