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

KellfromHell

Coupon-mad said:

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 said:

@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.

Thank you both, I will be adding this to my WS and adapting accordingly

KellfromHell

Sebi_895 said:

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.

Thanks @Sebi_95, do you have a redacted version of the one you have filed that you are willing to share?

Coupon-mad

Is it not on his/her thread (click on the username)?

Sebi_895

@KellfromHell link below if you didn't find it in my thread.

Witness Statement (redacted)
https://www.dropbox.com/s/x4amnny750rcpt6/Witness Statement_Redacted.pdf?dl=0

Hope it helps.

KellfromHell

Sebi_895 said:

@KellfromHell link below if you didn't find it in my thread.

Witness Statement (redacted)
https://www.dropbox.com/s/x4amnny750rcpt6/Witness Statement_Redacted.pdf?dl=0

Hope it helps.

Coupon-mad said:

Is it not on his/her thread (click on the username)?

thank you both, I did manage to find it and I like how robust yours is @Sebi_895!

KellfromHell

I'm nearly done drafting my WS and I would like to share it with you.I was wondering @Sebi_895, how did you redact yours? It looks very clean

Sebi_895

Nothing major, just used the highlighter in the Adobe pdf tool, properties set to black. I do re-pdf the doc again so it comes out cleaner as you say.

KellfromHell

Sebi_895 said:

@KellfromHell link below if you didn't find it in my thread.

Witness Statement (redacted)
https://www.dropbox.com/s/x4amnny750rcpt6/Witness Statement_Redacted.pdf?dl=0

Hope it helps.

Just noticed that in Para 21, line 2, the exhibit should be Exhibit 09a instead of 09b

Sebi_895

Well spotted but I don't really care anymore as I received a discontinuance this morning. So keep up the pressure and carry on playing the game!

KellfromHell

ah fantastic, congratulations @Sebi_895! I hope you get your costs