Advice on Witness Statement submission - Highview Parking Ltd/Group Nexus

Sebi_895

Title edited as previously was stating 'Advice on court defence submission' - that has well gone now, I'm at the WS stage.
Sorry, for the confusion.

Coupon-mad

Para 6:
remove the allegation of fraud (never, ever say that in small claim submissions) and remove the part in brackets that says the letters were signed 'SCS Law' because it's perfectly normal for a firm of solicitors to sign as the company name and not as an individual.  Nothing amiss about that!

Para 25
The (correct) allegation here that the keeper can't be held liable because the C has not complied with the POFA schedule 4 should be MUCH higher up and replace all the unnecessary stuff you have about the debt letters you got.  None of that is needed except perhaps as one paragraph bemoaning all the threatograms and varying sums of money demanded aggressively over the years.

However it's not about not identifying the creditor.  Remove that.  The real issue is that this is a non-POFA notice anyway, which is most clearly seen because if doesn't warn the keeper - at all - about keeper liability (para 9(2)f is missing).  There is no intention nor legal ability for that notice to hold a keeper liable and that's your main point.

Para 27
Is wrong because it wrongly says the wording prescribed in 9(2)f is in the notice.  100% it is NOT.

POFA schedule 4 needs to be an exhibit, to assist the judge.

Excel v Wilkinson is meant to be an exhibit in every single case.  See the example WS bundles by:

@Daiapolon2021

and

@aphex007

Sebi_895

@Coupon-mad - you are a legend!
I got myself muddled up and went all over the place; should have followed the principle for the WS (as per the Defence) and expanded it further. Massive thanks for setting me straight.
I'm in the process of realigning the WS as per your comments.

Re your comment POFA schedule 4 needs to be an exhibit – is that the whole of Schedule 4 to be added as an Exhibit?

Adding Excel v Wilkinson case as an exhibit as well means I may end up with a WS that’s very long, maybe bore the judge into submission!

Coupon-mad

Yes full copies of Sch4 (it's only a couple of pages?) and Excel v Wilkinson.

It will be large but you can merge the exhibit PDFs into one big PDF - with blank divider pages saying 'Exhibit 1, Exhibit 2' etc. to break it up - then add page numbers, then compress it so it meets email size allowances. 

Sebi_895

Thank you once again for the feedback. I have updated the WS.

Changes made -

·        Reduced the stuff about debt letters to two paras at beginning.

·        Claimaint not complying with PoFA now at Paras 7-10

·        Excel v Wilkinson detail now added at Para 31 & 42

·        New Paras added at 33, 42 & 43 as per WS from @Daiapolon2021 & @aphex007

·        Updated Conclusion with further PoFA argument.

The Page numbering is very draft at the moment as there are further exhibits to be added.

WS attached via link below along with the original Defence Letter.

WS_Redacted_29_Aug

https://www.dropbox.com/s/tecxglej1vbd75b/WS_Redacted_29_Aug.pdf?dl=0

Defence Letter

https://www.dropbox.com/s/ql41utykbovml28/Defence Letter against Claim_Redacted.pdf?dl=0

Just a note, there is typo in the WS from @Daiapolon2021 & @aphex007 .... it states 'Small Clams Track'. A basic search will find this, in case anyone is using the wording. Maybe that’s where this claim should end up!

Your guidance is appreciated. With thanks in anticipation

Coupon-mad

That's good.

I think, to para 8 you should add how the NTK is easily identified to be non-POFA.

The easiest way to do that (because 'jobbing solicitor' Judges will not do any research into this nor likely know this unless they've looked at it before) is is to point out that paragraph 9(2)f  - the vital warning to the keeper that they will become liable - is omitted.  Other parts of Schedule 4 para 9 are also missing and Highview have never tried to use keeper liability provisions.

The law is what YOU take into the hearing and what you voice, so don't presume a Judge will be on the same page as you that this is non-POFA.  I mean, to people like us on this forum it is CLEARLY non-POFA but not to a lay person or a part-time Judge!  Expect to have to take the Judge to the law and walk them through para 9(2)f, if this hearing goes ahead and Highview don't discontinue when they see you were not driving!  They still might...and should!

I also think you need to explain early in this statement, how you are sure that you were not the driver.

A Judge wants to be sure about this and not just have a bare denial plus 'I can't remember as it was years ago'.  Clearly you can recall enough to know it wasn't you so you need to say how you know that.  Were you working, were you never one to shop there, but others in the family did, etc?  We actually had someone lose in court v Highview - even though they were not driving and could not be held liable in law!  The Judge assumed they were driving as the evidence on this was vague.  Don't be vague.

Also remove the phrase "I strongly believe that" (...the NTK is non-POFA).  No.  It IS NON-POFA.  As a fact.

I think you should also quote Henry Greenslade's sentence where the states that, unlike with a Police NIP, there is no obligation upon a keeper to name the driver. 

Sebi_895

Evening!
I've made updates and added more weight to Para 7 that the NTK is not PoFA compliant.

>>>>  7.     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 XX).

 

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 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.  <<<<

Re the statement on the driver: I don't know how I can prove that I was not the driver apart from the Retail Park has stores that I would not use except for B&Q (but they were shut at that time) so I wouldn't want to say that. If I can't categorically prove that I was not driving then should I not be turning this on them to prove who the driver was as they can't hold the keeper liable?
I understand this maybe classed as vague but I'm uncertain what to say. 

In my Defence, I wrote

"It is admitted that the Defendant was the registered keeper of the vehicle in question but liability is denied. The identity of the driver at the material time is unknown to the Defendant. The Defendant was not the driver of the vehicle in question and is unable to recall who was driving on that unremarkable day over 4 years ago."

Should I go back to this statement??

Coupon-mad

Reiterate that you were not the driver and will give oral evidence confirming this fact. 

 If I can't categorically prove that I was not driving then should I not be turning this on them to prove who the driver was as they can't hold the keeper liable?

Yes. The burden is theirs.

Their fault and their active choice, by never using the POFA.  It's lazy parking management, probably because they can't be sure they can serve NTKs by day 14, so a decade ago when the law came in (Oct 2012) they and a few others in the industry opted not to bother with the POFA and to stick with the 'old regime' of driver liability only. Now they have started to sue people the Claimant is no doubt hoping courts & consumers can't notice the difference.

You need the following exhibits (court transcripts in full) from the Parking Prankster's case law pages:

Excel v Smith (appeal)

Excel v Lamoureux

...which both dealt with 'non-POFA' NTKs and the first transcript is persuasive because it was on appeal to a higher Circuit Judge.

Sebi_895

@Coupon-mad I want to thank you for taking me through the minefield that is Parking Law. You have given me some amazing insight and I could not have contemplated doing this without your guidance.

I've made a few amendments...Para 3 now reads as per below (running from the original Defence Statement)
I've also added a new para to to reference Excel vs Smith and Excel vs Lamoureux as per your guidance (the latter being an amazing read I need to add!) to shore up my argument that they cannot hold the registered keeper liable on a non-PoFA PCN.
Once your critique is completed, I will add an updated WS via Dropbox. With thanks in anticipation
 

3.     As stated in my defence, the date in question is unremarkable and I am unable to recall who was driving on that day over 4 years ago. I am the registered keeper of the vehicle in question in this case, however, I was not the driver of the vehicle at that specific time and am willing to give oral evidence stating this fact. I do not know the identity of the driver and charge liability cannot be transferred from the driver to the registered keeper on a non-compliant PoFA PCN.

8.     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.

In the recent Court of Appeal case Excel vs Smith (Exhibit XX) where the identity of the person who was actually driving the vehicle was not known, Excel raised proceedings against the registered keeper. 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.”

Whilst it is known that another case that was struck out on the same basis; Excel v Lamoureux (Exhibit XX); the parking company 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.”

Coupon-mad

Court of Appeal 

Not Court of Appeal.  That's far higher.

It was just an appeal to a Circuit Judge, but that is higher than a county court decision of first instance.  Name the Circuit Judge and Court in your blurb (HHJ Smith, sitting at Manchester County Court) to make your Judge more interested in reading it, and use the word 'persuasive' about that case because it overturned a mistake by a Deputy District Judge.  That will hopefully make your Judge not want to make that mistake!

Also use the full names and citation: Excel Parking Services v Smith (appeal) 08/06/2017 C0DP9C4E

Same with Excel v Lamoureux - give the Claim number. By the way, the Defendant was our own ticket fighter, @Lamilad who has been known to lay rep for people in court, as I have done too.  I think both of us have 100% win rate (but we haven't done a huge number of cases in person in court, so it's small numbers but a nice stat).  He knew his stuff and the transcript does make great reading!

Can you append a copy of your insurance document from the time?

That is good additional evidence that on the balance of probabilities it WAS NOT YOU!  That is, assuming it named more than one driver that year?  You could redact the first name(s) of the named drivers, and state that you have no wish to inflict a 'second bite at the cherry' attempt against the family member(s) who were other named drivers at the time - just in case this Claimant makes another presumption about who was driving and tries again against your family/partner.  But you know it was not you driving because (because why...you should say what makes you so sure).