PCN Claim from 2020

Mrscompliant

Here is the second part of my witness statement

What should i include for the third part?

Non Compliance with PoFA

1. I believe 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 (Exhibit 01). 

Para 9 (2) states

The notice must -

1. Warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given-

This is not stated on the PCN. The PCN states:

"If payment is not received within 28 days, an initial debt recovery charge of £40.00 will be incurred"

The wording on the PCN is not as per PoFA, therefore is non-compliant.

1. the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full and
2. The creditor does not know both the name of the driver and a current address for service for the driver,
3. 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 remains unpaid;

They do not know the identity of the driver as per PoFA therefore the PCN is non-compliant.

As the Notice to Keeper is not PoFA 2012 compliant, the charge liability cannot transfer from the driver to the registered keeper because the Notice to Keeper does not warn the keeper that, if after a period of 28 days, Highview Parking Ltd. has the right to claim unpaid parking charges as specified under sub-paragraph 9 (2) (f) of the Protection of Freedoms Act 2012. Highview Parking Ltd. (now Nexus DPO Ranger) (or their legal team, DCB Legal Limited) need to pursue the driver for the charge, not the registered keeper. The parking industry was certainly not left powerless by PoFA 2012 and could have - under certain circumstances - used that law to hold the keeper liable, however, those circumstances have not been met.

1. Through further research, I have found that the Claimant, Highview Parking Limited is a parking firm which has chosen never to use 'keeper liability' wording (Paragraph 9 of Schedule 4) and whilst that is allowable by the DVLA, the registered keeper's data is only supplied for the limited purpose of a parking firm trying to ascertain who was driving. The driver is the only liable party with a 'non-POFA' PCN like this one and the Claimant has no lawful business issuing claims to registered keepers with no evidence whatsoever of a driver's identity.
2. It is important to note similar cases where ‘non-PoFA’ PCNs were discussed and the case struck out due to the parking company failing to comply with PoFA 2012 and attempting to hold the registered keeper liable as opposed to the driver.
3. In the recent appeal case to the Circuit Judge; Excel Parking Services v Smith (Appeal) 08/06/2017 C0DP9C4E (Exhibit 02) HHJ Smith sitting at Manchester County Court overturned a mistake made by the Deputy District Judge from the original case, where the identity of the person who was actually driving the vehicle was not known, being persuaded to rule as such that the registered keeper could not be held liable. The case was dismissed.

“There is, of course, a specific regime within the Protection of Freedoms Act 2012, Schedule 4, to allow a parking company in precisely these circumstances to take proceedings against a registered keeper of a vehicle in circumstances where the identity of the driver is not known. Excel did not choose to take such proceedings and instead rely today on the general law of agency.”

1. Whilst it is known that another case that was struck out on the same basis; Excel Parking Services v Lamoureux C3DP56Q5 judgment (No keeper liability) (Exhibit 03); District Judge Skalskyj-Reynolds at Skipton County Court ruled against the parking company for issuing a non-PoFA’ PCN, that could not hold the registered keeper of the vehicle liable;

“So unfortunately, I think the claim against Mr Lamoureux is totally misconceived because it has no evidence that he is the driver and it seems to be relying on some assumption that the registered keeper is the driver because it is not seeking to rely on the Protection of Freedoms Act 2012 or keeper liability.”

1. The Parking and Traffic Appeals Service (PATAS) and Parking on Private Land Appeals (POPLA) lead adjudicator and expert parking law 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. Operators should never suggest anything of the sort”

“...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.”

“...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.”

as quoted from the POPLA Annual Report 2015, Page 13 (Exhibit 04)

1. As 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 Highview Parking 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 of how they arrive at the Amount Demanded: a total of £xxx.XX.

Coupon-mad

You need that first bit to quote 9(2)f and point out that there is no statutory warning of 'keeper liability'.  It is deliberately omitted by some parking firms (to avoid the tight timeline constraints in the Act) and this is de facto a non-POFA Notice, regardless of the date on it.  

I am very glad you have Lamoureux and the appeal case of Smith; the latter being persuasive on the county court so don't let your Judge (if you get to a hearing) dismiss it as just another county court level case.  Lamoureux was, but Smith is not.  So Smith is the authority!

1505grandad

Just checking  -  is this correct?  -  " Highview Parking Ltd. (now Nexus DPO Ranger)......."

Mrscompliant

You need that first bit to quote 9(2)f and point out that there is no statutory warning of 'keeper liability'.  It is deliberately omitted by some parking firms (to avoid the tight timeline constraints in the Act) and this is de facto a non-POFA Notice, regardless of the date on it.  

I am very glad you have Lamoureux and the appeal case of Smith; the latter being persuasive on the county court so don't let your Judge (if you get to a hearing) dismiss it as just another county court level case.  Lamoureux was, but Smith is not.  So Smith is the authority!

Sorry could you help me with the wording, i mostly copied this WS from others. Also I already have a hearing

1505grandad said:

Just checking  -  is this correct?  -  " Highview Parking Ltd. (now Nexus DPO Ranger)......."

Yes that is correct

Here is my final draft:

https://www.dropbox.com/s/flxk1hu26uexnpz/Witness Statement for Redacted.pdf?dl=0

1505grandad

I was particularly querying the "DPO":- 

https://cloud.google.com/customers/groupnexus

"That’s where GroupNexus comes in.

Formed in 2018 through the merger of parking management companies Ranger Services, Highview Parking, and CP Plus, GroupNexus manages more than 1,200 parking sites across the UK and Spain."

Coupon-mad

" Highview Parking Ltd. (now Nexus DPO Ranger)......."

Yes that is correct.

No it isn't.

Mrscompliant

Coupon-mad said:

" Highview Parking Ltd. (now Nexus DPO Ranger)......."

Yes that is correct.

No it isn't.

Isn’t it? When i did my SAR, i got it through Group Nexus.

____________________________

Is my WS good to send after adding the exhibits?

Le_Kirk

It is just GroupNexus,  that is what we are trying to say, no DPO or Ranger!

Mrscompliant

Here is my final draft:

https://www.dropbox.com/s/flxk1hu26uexnpz/Witness Statement for Redacted.pdf?dl=0

Please can someone have a look at my WS so i can send it off. Thanks

Le_Kirk

Are you going to finish the table of contents/index pointing the judge to your exhibits?