Highview parking County Court Claim SAR and Defense advice - reduced timeframe due to postal error!

KellfromHell

There is this WS (link 1 below) that aligns closely with this situation, is this still a relevant WS given legislation changes?

Link 1: https://forums.moneysavingexpert.com/discussion/5504705/scs-law-letter-before-claim-for-multiple-pcns-over-1000/p9 (5th comment from the top)

@Coupon-mad, @Le_Kirk, @Fruitcake, @Umkomaas, @Sebi_895

KellfromHell

@Coupon-mad , @Le_Kirk , @Fruitcake , @Umkomaas , @Sebi_895

Also, is it common to have a court letter to request my WS to be submitted md-November when my court date is in mid-March?

KeithP

KellfromHell said:

Also, is it common to have a court letter to request my WS to be submitted md-November when my court date is in mid-March?

It might not be common but if that's what the court has ordered then best comply.

Why does it matter whether it is common or not?

KellfromHell

KeithP said:

KellfromHell said:

Also, is it common to have a court letter to request my WS to be submitted md-November when my court date is in mid-March?

It might not be common but if that's what the court has ordered then best comply.

Why does it matter whether it is common or not?

Truthfully it doesn't matter but based upon other threads I have read, I had a sceptical thought that DBS attempting to get my WS early and this time crunch is adding a bit more stress to me than anticipated! 

Coupon-mad

Not if the letter comes from the court; that's just the way that Judge wants it (nothing to do with DCBLegal).

Yes every non-POFA Highview case except ONE* has been won in cases where the defendant may not have been (or was not) the driver.  It is an easy win and you should see a discontinuance next month, when DCBLegal see your evidence that there were other named drivers.


*one case was lost a few months back, due to a Judge deciding that the keeper was driving and the signs were clear enough.  Neither was true, but IIRC the defendant wasn't especially confident and may have come across as evasive.

KellfromHell

Coupon-mad said:

Not if the letter comes from the court; that's just the way that Judge wants it (nothing to do with DCBLegal).

Yes every non-POFA Highview case except ONE* has been won in cases where the defendant may not have been (or was not) the driver.  It is an easy win and you should see a discontinuance next month, when DCBLegal see your evidence that there were other named drivers.


*one case was lost a few months back, due to a Judge deciding that the keeper was driving and the signs were clear enough.  Neither was true, but IIRC the defendant wasn't especially confident and may have come across as evasive.

thank you, this is very helpful! If you have recommendations for any additional WS that argue just this point then I would be grateful the point to use @aphex007 template is great!

Coupon-mad

I don't have any links in my back pocket, but a search of Highview POFA witness statement will certainly find some.

Sebi_895

You can have what I wrote if you want...my WS has been filed with the court and served to my good friends at DCBL recently!

Non-Compliance with PoFA

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 (reference to Exhibit 02 - PoFA).

Para 9 (2) states

The notice must –

(f) 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.

(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;

they do not know the identity of the driver as per PoFA therefore the PCN is noncompliant.

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.

Coupon-mad

That's a good example.  Did you also have the authorities of Excel v Smith (appeal) and Excel v Lamoureux (you both should do!!).

Sebi_895

@Coupon-mad - I did that with your amazing help! And yes Excel v Smith (appeal) and Excel v Lamoureux was in my WS as well.