Help please - CCJ & Debt Recovery – from unknown Parking fine

Coupon-mad

Yes.

Lots of people choose not to be on the public register anyway. So it's not what constitutes a soft trace.

Jack5656

I have been reading the Telephone Hearings thread and have some questions please:

As this is a 'set aside' hearing application do I just talk the judge through my WS at the hearing, or do I need some kind of additional script/defence prepared - or is that only needed for a 2nd hearing?

Which brings me on to my main concern - as I can prove I was NOT the driver, would the judge just dismiss the case so there is no 2nd hearing needed? That makes total logical sense to me, but I have read on another set aside thread that the judge only considered the set aside and was not willing to discuss anything more thus requiring a 2nd hearing. This to me would be a huge waste of the court's time when I have shown I was not the driver at time and date of the offence!

From our earlier conversation it seems CEL are unlikely to start over by sending PCN to correct address to pursue the actual driver? Also should I name the driver if asked?

Coupon-mad

It will be the end of the matter if the claim is dismissed for want of service, so familarise yoursrlf with the case law to support the argunent that the court can't resurrect a 'dead' claim.

The Judge probably won't know.  It's likely that this 'dead claim' assertion is a new argument they've never heard before, hence why you need the authorities to support it.

Each Judge is different - the deputies tend to be local solicitors who do it part time. Hence why you need to lead them to the right conclusion based on law.

If you get a narrow minded Judge or one who laps up every word of the PPC's legal rep, they might bark at you that the parking firm used the DVLA address so why are you saying service was improper?

That's when you point to the BPA CoP and DLUHC new statutory CoP which both say checks must be done (the Govt one spells it out better but it's nothing new).

DVLA car registered addresses are NOT provided as a definitive address for service of court claims and indeed are often not the right address, for all sorts of reasons.  The DVLA address data is only provided so the PPC can invite the keeper to name the driver and serve a notice by post.

That's it.  The only data purpose. To serve a court claim is a step further and a whole new data use; and there must be more checks, if the claimant has 'reason to believe' the person can't be reached at that address (e.g. from time that has passed and/or silence to pre-action letters).

You only need a defence if the Judge doesn't agree that the bar in CPR 13.2 is met and instead considers your fallback position of CPR 13.3, a discretionary set aside.

Jack5656

I have to admit I don't fully understood CPR 13.2 - I need a lay man's explanation lol!

But let's say I had the set aside as discretionary, and needed to show I had a real prospect of successfully defending the claim - I think I have a great chance as I can prove I was not the driver - but do those with experience of the courts agree with my assessment - wil the judge think so as well?

Coupon-mad

Yes but only if the PCN was non-POFA.

Signage is always far more important in defences.  CEL bury the £100 in tiny print.

Jack5656

Well the PCN has a line on it saying 'This Notice is delivered under Schedule 4 of the Protection of Freedoms Act 2012...'

So where does that leave me? I assume with judge thinking I don't have a great chance to defend as RK unless I name the driver?

I should also point out that CEL no longer control the car park where this happened over 4 years ago so I don't think I can access the signage anymore.

KeithP

Jack5656 said:

Well the PCN has a line on it saying 'This Notice is delivered under Schedule 4 of the Protection of Freedoms Act 2012...'.

Well they would say that , wouldn't they?

Have you checked?
Does the Notice to Keeper comply with Schedule 4 of the Protection of Freedoms Act 2012 to such an extent that any driver's liability can be transferred to the keeper?

Jack5656

KeithP said:

Does the Notice to Keeper comply with Schedule 4 of the Protection of Freedoms Act 2012 to such an extent that any driver's liability can be transferred to the keeper?

How can I tell please? Here is the redacted notice...

Coupon-mad

Show us the back as well, but not being the driver was never your defence.

Defences are about unclear signage usually, and the keeper does not have to name the driver.

At the hearing, if the Judge doesn't dismiss the claim, you'd be saying you have a very strong defence and the case should be heard, but you need to see the evidence (not just the claim form). You were not the driver but believe the signs were the usual small print seen on CEL signage in other cases, and you've not seen any evidence of any breach of any prominent contract, by the driver.

Thus you have good prospects of defending the claim but haven't seen any evidence, so if the Judge orders them to send you the claim form (only) ask that they also be ordered to furnish you with 'further and better particulars' and photo evidence and to clarify if they believe they complied with the POFA (put the burden back on them)..

Jack5656

Coupon-mad said:

Show us the back as well, but not being the driver was never your defence.

On the SAR there is only one more page for the original PCN and that only shows 2 more close up photos of the car and the only wording on page is:

PCN:4xxxxxxx
Vehicle Registration:xxxxxxx
Date of Violation:xx/xx/2018
Site:xxxxcar park locationxxx

So my arguement would be that under the schedule 4 of the POFA 2012: Point 8 (4)

The notice must be given by:
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period

I would argue this NTK was never sent to a current address - but I also take your point about signage - but I never saw the signage and it no longer exists on that site so yes I would then need to ask for evidence of the signage to assess whether the driver was properly notified - is that the approach?