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

pomegranate45

Umkomaas said:

There seems to be a burning assumption on your part that this will actually end up in a court hearing (physical or virtual), but there are plenty of examples where, when Defendants go through all the motions of defending their case rather than rolling over and coughing up, many PPCs, including VCS, discontinue near to a hearing date. 

As @KeithP said earlier, depends how good you are at poker!

But wouldn't my best bet at having this case be discontinued and never end up in a courtroom be to play the non-compliance with POFA card?

But if I do this, I could apparently end up in contempt of court (when the judge asks me who the driver was). I basically have no other defence, therefore the courtroom is the place will inevitably end.

I would love nothing more than this to NOT go to court!

Coupon-mad

Ok, where you are going wrong is you put 'I was not the driver'.

At this stage, yes you can hedge this (not say who was driving) and still use the POFA if you want, and yes you would hope they might discontinue later on.

If you read other Highview defences, you will see people DON'T say 'I was not the driver'.

What you DON'T do is lie, and what you DON'T do is hang your hat on one point. Hence the template defence is used.  Just copy another recent Highview defence that uses the template defence and in points 3 onwards, talks about the POFA and Henry Greenslade but doesn't add 'I was not the driver'.

KeithP

pomegranate45 said:

Coupon-mad said:

What was the alleged breach? Overstay at a retail park? Were the signs clear so you knew you were in breach?

The signage is clear...

Most unusual. You sure about that?

Johnersh

Some presumptions here. 

You can avoid naming the driver and ask them to prove it, that's fair game. But that will unravel in a hearing if it got there, simply because you'll be asked directly.

Factually, isn't there a case to say the signs and markings aren't that clear if it took you a week to work out where you were supposed to be? 

pomegranate45

Johnersh said:

Some presumptions here. 

You can avoid naming the driver and ask them to prove it, that's fair game. But that will unravel in a hearing if it got there, simply because you'll be asked directly.

Factually, isn't there a case to say the signs and markings aren't that clear if it took you a week to work out where you were supposed to be? 

I see what you mean about the signs and markings. What happened was the driver noticed a sign within the gym itself (a week or two later) stating not to use the carparks outside; that the carpark for the gym was round the other side of the building with a different entrance/exit. 

The driver could still use it as a defence and just be completely honest - 'the driver presumed the car park was for the use of gym-goers as it is situated directly outside the gym', but that would be essentially admitting fault which could leave the driver open to more tickets from the other occasions.

At this point I'm leaning towards the main defence being the POFA non-compliance without making any comment on who the driver was/wasn't/could've been, let them take it to a hearing if need by, and let them ask who was driving.

Or should the driver take the chance and be completely honest?

What do you think?

Coupon-mad

Driver should be honest but NOT say you assumed anything. It's as Johnersh says.  Unclear signs in the car park you were in.

pomegranate45

Coupon-mad said:

Driver should be honest but NOT say you assumed anything. It os as Johnersh says.  Unclear signs in the car park you were in.

Thanks. I know you're be sick of hearing me say this but surely the unclear signage argument undermines the POFA non-compliance argument; i.e. the defendant is admitting to being the driver and didn't see the signs.

Or should I word the defence along the lines of "after receiving the NTK, the defendant visited the site relevant to the PCN and has found the signage relating to parking permits to be completely inadequate and obscured etc..."

That way I could potentially use the inadequate signage argument without admitting to being the driver.

Is this the best way to do it?

Fruitcake

My car has five seats. I can sit in four of them and still not be the driver, yet still know where the driver went, what they did, and see much of what they saw.

I can also go back to a location, on foot, or driving, and see for myself what the driver would or wouldn't have seen for myself on the first occassion.

pomegranate45

Fruitcake said:

My car has five seats. I can sit in four of them and still not be the driver, yet still know where the driver went, what they did, and see much of what they saw.

I can also go back to a location, on foot, or driving, and see for myself what the driver would or wouldn't have seen for myself on the first occassion.

Okay thanks, so I should word it exactly like this then?:

"After receiving the NTK, the defendant visited the site relevant to the PCN and has found the signage relating to parking permits to be completely inadequate and obscured etc..."

Umkomaas

pomegranate45 said:

Fruitcake said:

My car has five seats. I can sit in four of them and still not be the driver, yet still know where the driver went, what they did, and see much of what they saw.

I can also go back to a location, on foot, or driving, and see for myself what the driver would or wouldn't have seen for myself on the first occassion.

Okay thanks, so I should word it exactly like this then?:

"After receiving the NTK, the defendant visited the site relevant to the PCN and has found the signage relating to parking permits to be completely inadequate and obscured etc..."

You might need to more tightly define/quantify what you mean by 'completely inadequate'.