Highview/DCB legal claim form defence help

1505grandad

An observation:-

Para 24  -  "The PCN for the alleged offence on 14th October 2019 was issued on 29th October 2019,...."

I wonder why therefore you state:-

Para 19  -  "The relevant BPA Approved Operator Scheme Code of Practice from 2015 (‘BPA Code’) states that........."

I believe that if a pcn was issued in 2019 then BPA CoP version 7 dated January 2018 is the relevant CoP.

Coupon-mad

ItDoBeLikeThat said:

Also, is it at all possible to send a witness statement by email? The letter requesting it only described dropping it off or sending by post. 

Yes - unless your number of pages and exhibits add up to over 50, which many local courts will refuse to print.

Most of our WS bundles are well over that and I think yours will be.

- Change license (Americanism!) to licence.

- in para 24 you say POFA 9(f) but that's wrong; the keeper liability warning is in 9(2)f.

- you need to add Excel v Smith and Excel v Lamoureux as exhibits. Search the forum!

- you'll need the POFA schedule 4 as an Exhibit, to assist a lazy Judge to come to the right conclusion: that you can't be liable.

This'll be well over 50 pages, but you need the above because some Judges presume any old NTK is capable of keeper liability.

The law is what the parties submit and take into the hearing and you can't assume a Judge will know much about the POFA.

ItDoBeLikeThat

Thanks so much for going through it all.

I don't think I refer to Excel v Smith or Lamoureux at all in my WS. Would you still recommend adding them?

Coupon-mad

Yes, that's what I meant.  It's why I said 'search the forum' which saves us telling you what to put.

ItDoBeLikeThat

Just made the changes that were suggested. I've incldued the points about Excel v Smith or Lamoureux in points 26, 27, and 28. I was able to find a good example for them I think. 

https://www.dropbox.com/s/li8m1apmuqo27xm/WitnessStatement.pdf?dl=0

Coupon-mad

I'd remove the lower half of para 25 'Not only...' onwards) because it's not on point.

I'd say more about Excel v Smith in 27. Maybe a good snappy quote from the transcript about how a keeper can't be held liable in a non POFA case, and name the Circuit Judge (HHJ Smith) who has more clout than the DJ in Lamoureux which was only county court level.

1505grandad

A heads-up:-

If you look at the titles of the Court docs you are exhibiting the correct spelling is "Judgment"  -  i.e. there is no middle "e" as you have stated in your "contents".

Just checking  -  Para 29  -  "I suggest that a penalty of £85 constitutes ‘Consequences which are out of all proportion to any legitimate interests’ of the claimant, distinguished from the charge levied in the Beavis case (Ex5)"

Does that suggest your pcn was for £85 or was yours for a different sum?

Also would it be a good idea to highlight the particular paras relevant in your PoFA exhibit to make it obvious/easier for the Judge?

ItDoBeLikeThat

1505grandad said:

A heads-up:-

If you look at the titles of the Court docs you are exhibiting the correct spelling is "Judgment"  -  i.e. there is no middle "e" as you have stated in your "contents".

Wow. Didn't realise this is a legal thing.

Just checking  -  Para 29  -  "I suggest that a penalty of £85 constitutes ‘Consequences which are out of all proportion to any legitimate interests’ of the claimant, distinguished from the charge levied in the Beavis case (Ex5)"

Does that suggest your pcn was for £85 or was yours for a different sum?

Just realised what I wrote there as the Beavis PCN was £85, same as my one. Is something like this more appropriate?

29. In the Parking Eye vs Beavis case, ParkingEye overcame the possibility of their £85 charge being dismissed as punitive, however the Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. This 'unique' case met a commercial justification test, given the location and clear signs (Ex XX) with the parking charge in the largest/boldest text. Rather than causing other parking charges to be automatically justified, the Beavis case facts (in particular, the brief, conspicuous yellow & black warning signs) set a high bar.

ItDoBeLikeThat

Coupon-mad said:

I'd remove the lower half of para 25 'Not only...' onwards) because it's not on point.

I'd say more about Excel v Smith in 27. Maybe a good snappy quote from the transcript about how a keeper can't be held liable in a non POFA case, and name the Circuit Judge (HHJ Smith) who has more clout than the DJ in Lamoureux which was only county court level.

Failed to find a snappy quote but did come up with something.

27. Yet another piece of case law that establishes that the keeper cannot be presumed to be the driver without PoFA is Excel v Smith (Appeal) (Ex 8) which had initially been decided wrongly by a District Judge, before being re-heard on appeal by a Circuit Judge. His Honour Judge Smith describes section 4 of PoFA as a ‘real remedy’ which allows parking companies ‘to take proceeding against a registered keeper of a vehicle in circumstances where the identity of the driver is not known’. However, Excel’s failure to comply with PoFA (just like the claimant’s) and the identity of the driver not being known resulted in the appeal being allowed and the claims dismissed. His Honour Judge Smith noted the main reason being the existence of this ‘remedy’ and Excel’s own decision to not comply with it.

Coupon-mad

That's perfect.