driver 'unknown' on defence but now identified - what to write on witness statement?

dexion7

In my defence (I am the keeper) I stated that the driver was unknown. I now know who the driver was (not me) but can't think of a way to provide any evidence which doesn't identify the driver.

Since I'm retired and have little need to leave the house most days (or even use the old van in question at all) and I didn't use a credit card or do anything of note other than probably watch the TV on the day concerned, I can't think of a way to provide any evidence to show that I wasn't the driver. The van's insurance has me as the only named person and on the odd occasion in question the driver was simply driving it third party only using his own insurance. 

I'm now at the stage of producing a witness statement for the forthcoming telephone hearing but unsure of what to write in the witness statement regarding the driver.

The parking event was 5 years ago and the parking company's documents are not pofa compliant so their only option is to hold me, the keeper, responsible.

Any advice appreciated.

KeithP

dexion7 said:

...the parking company's documents are not pofa compliant so their only option is to hold me, the keeper, responsible.

I don't understand that bit.
If the 'parking company's documents' are not POFA compliant to an extent where they can transfer any driver's liability to the keeper, then only a known driver can be held responsible.

In other words, a keeper cannot possibly be held liable if their documents are not POFA compliant.

They can of course assume that the keeper was the driver and proceed on that basis. 

Which parking company?

dexion7

sorry if I wasn't clear, they are proceeding on the assumption that the keeper was the driver.

the claimant is CP Plus T/A Nexus Group and the particulars of claim state "The driver agreed to pay within 28 days but did not. Defendant is liable as the driver or keeper"

Le_Kirk

dexion7 said:

sorry if I wasn't clear, they are proceeding on the assumption that the keeper was the driver.

the claimant is CP Plus T/A Nexus Group and the particulars of claim state "The driver agreed to pay within 28 days but did not. Defendant is liable as the driver or keeper"

That is always on the signs and is a non-starter in a defence.  What did you put in your defence?  Your witness statement is in support of your defence and should provide a back-up to it with evidence, although, as you say, in your case, you don't have any evidence.  It is the claimant's job to prove their case not yours to disprove it.  If you appear to the judge as an honest defendant and can truthfully state, when asked, that you weren't driving, it is up to the judge to decide on the balance of probabilities.

Coupon-mad

Can you say that after considering the photos provided (or whatever has made you realise) you can state as fact - and are prepared to swear on oath - that it was not you driving.

You invite the court to dismiss this claim because the Claimant, by their own admission, and as is clear from the vague wording in the Notice to keeper, has not attempted to use the POFA 2012 keeper liability provisions in Schedule 4 and cannot plead it.  

They have merely assumed the keeper might have been the driver. This lax and unprofessional parking business model of not bothering to use the law (because it imposes deadlines and mandated wording) and just throwing mud at a keeper and hoping it sticks, has already been thrown out on appeal in Excel v Smith (exhibit xx).

Further, it was stated as long ago as 2015, in the official POPLA Annual Report (exhibit xx) by parking expert Barrister and POPLA & PATAS Lead Adjudicator Henry Greenslade, that parking firm BPA members must 'never' suggest that a keeper is liable outside of the POFA.

This has also been repeated by the Government in the February 2022 new statutory Code of Practice, paragraph xx (exhibit xx) that the keeper must not be assumed to be the driver.  This is not a position supported by any law, rule or doctrine relating to consumer contracts and neither does the law of agency apply to a keeper whose car is used by family members too.

dexion7

thanks coupon - that all looks really helpful!

D_P_Dance

they are proceeding on the assumption that the keeper was the driver.

They may struggle, read this and complain to your MP

https://www.parkingcowboys.co.uk/elliot-vs-loake/

dexion7

Coupon-mad said:

This has also been repeated by the Government in the February 2022 new statutory Code of Practice, paragraph xx (exhibit xx) that the keeper must not be assumed to be the driver.  This is not a position supported by any law, rule or doctrine relating to consumer contracts and neither does the law of agency apply to a keeper whose car is used by family members too.

Thanks for your help. I've read through the Feb 2022 Code of Practice but can't locate any reference to that part - I wonder if you could give me paragraph etc. info?

Coupon-mad

I"m afraid I don't know without reading through it. I know it is there. We very much encourage posters to read things very closely and find stuff themselves as it's a skill needed for court stage.

1505grandad

keeper must not be assumed to be the driver

A hint as to how this can be researched:-

Open the new CoP:-

https://www.gov.uk/government/publications/private-parking-code-of-practice/private-parking-code-of-practice#contents

When doc opened use control + F and type in the box an applicable word  -  perhaps "keeper"

This should bring up 21 items in the box  -  scroll through until you will eventually see:-

8.1.3 The parking operator must ensure that the notice of parking charge does not invite or require the recipient to provide a stamped addressed envelope as a prerequisite for their appeal.

Whilst the provisions of Schedule 4 of the Protection of Freedoms Act 2012 allow parking operators to issue a notice of parking charge to a vehicle keeper or vehicle-hire firm, operators must not when issuing or pursuing a notice of parking charge presume that the keeper of a vehicle was the driver at the time of that vehicle breaching conditions leading to issue of a notice of parking charge.

dexion7

many thanks !