Received Notification Of Instruction from Elms Legal - what now? Please help!

pomegranate45

Someone lost in court v Highview a few months ago, despite not being the driver. Highview never use the POFA but still won because litigation is a lottery.  They got a bad Judge and were tongue-tied about explaining the POFA non-compliance, against a legal rep who had all the patter.

Thank you for taking the time to respond. To be honest, this is all quite disheartening. 

I think the basis of my misunderstanding is that I was under the impression that the Protection Of Freedoms Act is a part of UK legislation that cannot simply be ignored by the parking companies... the idea that these companies simply choose not to recognize UK legislation in their pursuits is what I find baffling.

And when you said the defendant was 'tongue-tied about explaining the POFA non-compliance' to the judge, I  presumed it was the judge's obligation to know the law and legislation that they are dealing with and so it should not have to be explained to them in the first place. It should be a simple open and closed case in the defendant's favour.

Maybe I'm still failing to understand how all of this works, but this is how I'm reading it.

D_P_Dance

think tht you are overthinking this.  PPCs go to court with some hopeless cases in the the  sure knowledge that some victims have not done their homework.  

Trainerman

pomegranate45 said:

Someone lost in court v Highview a few months ago, despite not being the driver. Highview never use the POFA but still won because litigation is a lottery.  They got a bad Judge and were tongue-tied about explaining the POFA non-compliance, against a legal rep who had all the patter.

Thank you for taking the time to respond. To be honest, this is all quite disheartening. 

I think the basis of my misunderstanding is that I was under the impression that the Protection Of Freedoms Act is a part of UK legislation that cannot simply be ignored by the parking companies... the idea that these companies simply choose not to recognize UK legislation in their pursuits is what I find baffling.

And when you said the defendant was 'tongue-tied about explaining the POFA non-compliance' to the judge, I  presumed it was the judge's obligation to know the law and legislation that they are dealing with and so it should not have to be explained to them in the first place. It should be a simple open and closed case in the defendant's favour.

Maybe I'm still failing to understand how all of this works, but this is how I'm reading it.

Yes, no and maybe. Look, the PoFA 2012 helps a lot in some situations but if you are going to defend on that basis you need to understand it. You can't just put words on a piece of paper and think job done. In the case quoted, it seems the defendant could not explain what he/she was relying on.

Knowledge is power. Listen to the regulars here, read and understand and you will be all right

pomegranate45

Yes, no and maybe. Look, the PoFA 2012 helps a lot in some situations but if you are going to defend on that basis you need to understand it. You can't just put words on a piece of paper and think job done. In the case quoted, it seems the defendant could not explain what he/she was relying on.

Knowledge is power. Listen to the regulars here, read and understand and you will be all right

Thanks for your comment...

I'm sorry but words on a piece of paper is all that I've got to rely on. This is my defense in its entirety:

As stipulated in POFA 2012, the parking company had 14 working days to send out and have me, the Keeper of the vehicle, receive the PCN. It took them 62 days to do this. Therefore, in accordance to POFA 2012, the debt owed cannot be transferred to me, the Keeper of the vehicle, and must be collected from the Driver of the vehicle. I was not the driver, and I am under no obligation to state who the driver was.

That's it. That's everything I've got. Any thoughts would be much appreciated...

pomegranate45

D_P_Dance said:

think tht you are overthinking this.  PPCs go to court with some hopeless cases in the the  sure knowledge that some victims have not done their homework.  

Hi, I understand that I'm coming across like that, I'm just baffled at the idea that these companies can be 'non-POFA'. How can they be 'non-POFA' when POFA is part of UK legislation? That's the missing piece of the jigsaw puzzle I'm trying to find. 

Trainerman

pomegranate45 said:

D_P_Dance said:

think tht you are overthinking this.  PPCs go to court with some hopeless cases in the the  sure knowledge that some victims have not done their homework.  

Hi, I understand that I'm coming across like that, I'm just baffled at the idea that these companies can be 'non-POFA'. How can they be 'non-POFA' when POFA is part of UK legislation? That's the missing piece of the jigsaw puzzle I'm trying to find. 

You said it yourself. They failed to notify the keeper in the time allowed by PoFA. So the PCN is not PoFA compliant and they can not transfer liability to keeper. There are other hoops that they need jump through, but that would seem to be your defence

KeithP

pomegranate45 said:

D_P_Dance said:

think tht you are overthinking this.  PPCs go to court with some hopeless cases in the the  sure knowledge that some victims have not done their homework.  

Hi, I understand that I'm coming across like that, I'm just baffled at the idea that these companies can be 'non-POFA'. How can they be 'non-POFA' when POFA is part of UK legislation? That's the missing piece of the jigsaw puzzle I'm trying to find. 

The missing piece of that particular jigsaw is easy to find.

Obviously the driver is responsible for parking the vehicle. There's no disputing that. The parking company can chase the driver but unless they can actually get the name of the driver from somewhere or convince a court that the keeper was driving, their case fails. That's the situation without POFA.

Now, they can if they wish, use the facilities of POFA to transfer any driver's liability to the keeper. In most cases they can get the keeper's details from the DVLA. But if they don't bother to follow all the rules that allow them to transfer the driver's liability to the keeper - like sending the Notice to Keeper within the specified time limit - then their case against the keeper is bound to fail.

Following from that, it can be seen that the parking company can choose not to rely on POFA to transfer the driver's liability to the keeper - by for example not bothering to stick to the time limits - but instead relying on being able to convince a court that the person whose name they do have - the Registered Keeper - was actually driving at the time.

pomegranate45

The parking company can chase the driver but unless they can actually get the name of the driver from somewhere or convince a court that the keeper was driving, their case fails. That's the situation without POFA.

Right, it's finally clicked.

Sorry to keep boring you all with this but let me explain my naivety:

I thought that prior to POFA 2012 these companies had no legal right to pursue any debt what-so-ever. I now see how stupid that was of me to think.

I thought that POFA was new legislation that allowed these companies, for the first time, to pursue charges/invoices against people who parked on private land.

I now understand that these companies had that right all along, and that the introduction of POFA actually gave them EXTRA rights, such as passing debts from Driver to Keeper etc., as long as they comply with the rules stated in POFA.

The basis of me ignoring the letters was that I believed that by not complying with POFA, any pursuit to recover debt from me was technically illegal, and therefore they would/could never pursue in to court.

Thank you all for your patience and explanations, and please take solace in the fact that I'm feeling quite embarrassed right now.

Coupon-mad

No worries but you will defend it if you get a claim, yes?  We have a template defence and your bit about the NTK being non-POFA slots in nicely. @pomegranate45

For examples of how that looks in a court defence, have a look at 2 or 3 Highview defences done in the past week (March 2022 new template defence cases).  Several here to browse and Highview are the ones to look at as they are always non-POFA.

And don't be disheartened that I told you just ONE person here managed to lose a non-POFA case last year.  It was only one person (we won hundreds last year - 99% win rate) and it was surprising, but must have been because they were not well prepared enough and got a rookie Judge.

And when you said the defendant was 'tongue-tied about explaining the POFA non-compliance' to the judge, I  presumed it was the judge's obligation to know the law and legislation that they are dealing with and so it should not have to be explained to them in the first place. 

I am afraid the Judge does usually expect the Defendant to explain it unless they are experienced in the POFA Schedule 4.  Not all Judges are, because they have to be a 'jack of all trades' and court is mainly for more important stuff like family cases and real debts. Judges are busy people - often solicitors who hear court cases part time - but willing to listen to both sides. So they will usually expect you (at a hearing) to take them to the schedule and point out the omissions.

pomegranate45

Coupon-mad said:

No worries but you will defend it if you get a claim, yes?  We have a template defence and your bit about the NTK being non-POFA slots in nicely. @pomegranate45

Understood. Yes I absolutely will defend if I get a claim. Thank you for taking the time to explain these things to me, I can't stress enough how much I appreciate it.