4 Year Old Claim Form!!!!

Coupon-mad

9 (2) f full wording (you have stopped short) of liability of the keeper. Not there, is it?

Don't use the word 'offences' because they are just contract breach allegations, no more.

If you attest that you have racked your brain and it is the Defendant's honest belief that these events were not cases when you were driving, then the Claimant - who, due to their own simplistic wording choice, has NEVER used the POFA 2012 Schedule 4 right to 'keeper liability' in the almost ten years since that option has been open to them - cannot hold this Defendant liable.  This is a matter of fact and law and there can be no 'law of agency' or presumption argument about keepers always being drivers.  If that were true - and it is not - then there would have been no reason for Parliament to bring in Schedule 4 as the quid pro quo for the industry when clamping was made illegal in 2012. 

4yearoldclaim

Coupon-mad said:

9 (2) f full wording (you have stopped short) of liability of the keeper. Not there, is it?

Don't use the word 'offences' because they are just contract breach allegations, no more.

If you attest that you have racked your brain and it is the Defendant's honest belief that these events were not cases when you were driving, then the Claimant - who, due to their own simplistic wording choice, has NEVER used the POFA 2012 Schedule 4 right to 'keeper liability' in the almost ten years since that option has been open to them - cannot hold this Defendant liable.  This is a matter of fact and law and there can be no 'law of agency' or presumption argument about keepers always being drivers.  If that were true - and it is not - then there would have been no reason for Parliament to bring in Schedule 4 as the quid pro quo for the industry when clamping was made illegal in 2012. 

Ahhh yes I missed that bit. Thank you.

Para 9 (2) f

(f)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,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

--------------------

It's all getting a bit confusing. So, technically they CAN hold the keeper liable if they warned the keeper of the fact AFTER 28 days of the NTK being given.

IMO this case is still null & void as para 4 (5) states:

"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)"

Now, I never received a NTK (perhaps the DVLA details were incorrect at the time, I don't know). As the keeper, I can be held liable if they followed the correct POFA procedures. The fact that they are attempting a double recovery is case and point that they are NOT acting in accordance with the law which prohibits this type of activity. 

I have evidence (google street view screenshot) of their signs which state £100 parking charge for non payment/overstaying free hours. Therefore, they cannot charge £170 per PCN as they believe are perfectly entitled to.

------------------

Sorry to drag this out but could you explain this in more layman terms lol.

If you attest that you have racked your brain and it is the Defendant's honest belief that these events were not cases when you were driving, then the Claimant - who, due to their own simplistic wording choice, has NEVER used the POFA 2012 Schedule 4 right to 'keeper liability' in the almost ten years since that option has been open to them - cannot hold this Defendant liable.  This is a matter of fact and law and there can be no 'law of agency' or presumption argument about keepers always being drivers.  If that were true - and it is not - then there would have been no reason for Parliament to bring in Schedule 4 as the quid pro quo for the industry when clamping was made illegal in 2012. 

"who, due to their own simplistic wording choice, has NEVER used the POFA 2012 Schedule 4 right to 'keeper liability' in the almost ten years since that option has been open to them"

What is this wording you speak of? I feel like I'm in a sticky situation as I don't have any NTK's to say their wording was off.

Cheers

Coupon-mad

So, technically they CAN hold the keeper liable if they warned the keeper of the fact AFTER 28 days of the NTK being given.

No.

Only if the NTK had the warning and other statutory wording on it AND was delivered by day 14, too.

AND ONLY if there was 'adequate notice' on prominent and transparent signage, of the parking charge AND if there was a breach of a 'relevant contract or relevant obligation' as clearly seen/known/agreed by the driver from those signs.

Group Nexus have never bothered with POFA wording or keeper liability because private parking is a licence to print money anyway and my guess is, they thought they'd never need it.

No-one saw the 'PPC World' gravy train derailed by a pandemic that stopped people going out or lingering at shops, nor did they see the Government and BSI taking such care and such time to listen to consumer voices.

You could see from the Select Committee supposed 'evidence' last month (statistical modelling and so-called statistics with little substance) plus predictable doomsday threats of 'carmageddon' that the industry still seem to think they can walk all over the legislation designed to curb the more greedy and rogue practices.

But the fact it's taken over 2 years to get this far shows they have not had everything go their way. 

 

4yearoldclaim

Ok ok, so due to the NTK not featuring the correct statutory wording AND the fact that I did not receive a NTK within 14 days means that it was not in fact POFA compliant? 

They should PROVE to me that they did in fact send an NTK within the required timeframe, with the correct statutory wording as the defendant challenges their legal basis to hold the keeper liable in this instance. 

Even if they came back with evidence a NTK was sent to the address the DVLA had at the time within 14 days, they can't get out of the fact that they neglected to use the legal/statutory wording as prescribed in POFA. So case won?

I do really hope this is it now haha.

Umkomaas

Even if they came back with evidence a NTK was sent to the address the DVLA had at the time within 14 days, they can't get out of the fact that they neglected to use the legal/statutory wording as prescribed in POFA.

They won't be able to. Have you sent a SAR, because that will elicit a copy of all documents they've sent you and to which address.

So case won?

Address that one to the Judge. You may have to talk/walk them through it step by step..We never second-guess a Judge.  His/her court, his/her decision. 

Redx

4yearoldclaim said:

Ok ok, so due to the NTK not featuring the correct statutory wording AND the fact that I did not receive a NTK within 14 days means that it was not in fact POFA compliant? 

They should PROVE to me that they did in fact send an NTK within the required timeframe, with the correct statutory wording as the defendant challenges their legal basis to hold the keeper liable in this instance. 

Even if they came back with evidence a NTK was sent to the address the DVLA had at the time within 14 days, they can't get out of the fact that they neglected to use the legal/statutory wording as prescribed in POFA. So case won?

I do really hope this is it now haha.

The fact that you did not receive the NTK within 14 days is not relevant , I did tell you that they don't have to prove receipt of the NTK , but that it was sent such that it would arrive within the statutory timeframe to comply with POFA , to the address listed on the DVLA database. You keep assuming that you have to actually receive it !

In simple terms , they should post it so that it arrives by or before the due date , but prompt action doesn't change the fact that they never use POFA compliant wording , meaning every box has to be ticked , including using the data supplied by the DVLA ( even if that data is incorrect )

The SAR reply will answer those POFA tick boxes , or more likely show that they failed miserably , simply because they have never complied

It will also show you the name and address they posted them to as well , plus issue dates , plus the omission of POFA warnings , this thread is similar to yours , so read it

https://forums.moneysavingexpert.com/discussion/6316663/dcb-legal-highview-parking-claim#latest

We recently had a case where the judge found for the claimant , even though the defendant was not the driver , simply because they could not explain POFA non compliance to the court , do not make it two !!

The claimant will argue that on the balance of probabilities , you were the driver , and try to persuade the judge of that

4yearoldclaim

Jenni_D said:

You don't have time to wait on a SAR to be serviced before you need to file your defence. Use the template defence from the NEWBIES and update it with your paragraphs 2 and 3 - show only your updates in a reply here for critique. (We don't need to review @Coupon-mad's homework, only yours).  

@Umkomaas @Redx

I was advised when initially posting that I wouldn't have time to wait for SAR so I never requested one.

Do you think I should call their bluff and essentially blag their NTK was not POFA compliant from the get-go even if I did not request a SAR?

I don't see how I could possibly know if their NTK was POFA compliant if I did not a) receive a NTK and b) request a SAR

Redx

Then you should have done so anyway , regardless of any timeframes , because you need to see their paperwork , which is causing you all this grief due to not seeing it

Of course you aver that it's not POFA compliant and put them to strict proof , goes without saying , especially because you do not have it ( so email a SAR today , only takes 5 minutes )

But you will know before the hearing , partly because you will have done the SAR , partly because both sides will exchange evidence at the WS stage a few weeks before the hearing , which won't be until next spring or summer anyway

4yearoldclaim

Ok will request one now. Then will have all the necessary documents prior to the hearing.

In my defence, I will state that it is not wholly compliant and put them to strict proof.

Given the claimant (CP Plus / Group Nexus), it's fair to assume that they haven't gotten their act together recently so it's more than reasonable to believe the NTK back in 2017 was most definitely not POFA compliant.

4yearoldclaim

Posting final (hopefully) version of defence for critique.

The four baselines of argument I will pursue will be:

1: Was not the driver at the time of the alleged offences.

2: No legal authority to seek 'damages' and add £70 per PCN which the courts have previously found to be punitive 

3: Non-compliant POFA due to the lack of statutory wording.

4: Clearly stating a falsehood on the POC such as 'liable as keeper'.

---------------------------------

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 Claimant is put to strict proof that it has sufficient proprietary interest in the land, or that it has the necessary authorisation from the landowner to issue parking charge notices, and to pursue payment by means of litigation.

6. 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. The Claimant has never used the provisions of Schedule 4 (paragraph 9) and can never rely on 'keeper liability' by the Claimant's own choice of business model.  In the event that the Claimant attempts to use or refer to the POFA 2012 in their witness statement or at a hearing - knowing as they do that, they do not comply with paragraph 9 of the Schedule - the Defendant will argue that the Dammerman test for unreasonable conduct has been reached and will seek full costs

7. Following on from [6] 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. 

8. 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.

--------------------------------------

Also heads up for any other newbies, the paragraph in the template beginning with:

 "The Claimant cannot be heard to base its charge on the Beavis case, then add damages for automated letter costs; not even if letters were issued by unregulated 'debt recovery' third parties"

There is a section where you MAY need to change the point number referenced. If you added multiple points as facts known to the defendant, will need to readjust the sequential order in which they are referenced.

Eg..."He was not taken by either party to Somerfield in point #11 above" - Changed point #5 to point #11 otherwise I would be referencing a completely different point/line of argument.

Hope this makes sense.