DVLA - Freedom of Information Request FOIR3988, where to get a copy?

Coupon-mad

Normally it just says on the front in the last paragraph, that they are assuming the keeper was the driver, which is the opposite of how Schedule 4 of the POFA works. Not a POFA NTK usually!

mar_88

It seems to explain keepers liability as per POFA - I will stand corrected if not, thoughts?

Castle

mar_88 said:

It seems to explain keepers liability as per POFA - I will stand corrected if not, thoughts?

Read the last paragraph starting "Please be warned"; and, compare it with the actual required wording of Para 9(2)(f).

Coupon-mad

'Day after the issue date' is misleading and legally incorrect. Easy game of 'spot the difference'.

mar_88

Ok I see, the rule states "after the period of 28 days beginning with the day after that on which the notice is given" and the NTK references the Issue date instead - Is that enough for this notice to be non-compliant? And probably need to add the IPC Code paragraph reference. Thank you!

So as per Schedule 3 of the IPC Code of Practice: "Where a Parking Charge remains unpaid 28 days after a Notice to Keeper has been served, further correspondence may be sent to the Motorist to pursue the unpaid Parking Charge. Where Parking Charges are pursued against the keeper of the vehicle using the liability created by Schedule 4 of POFA the operator must ensure compliance with all relevant sections."

Is it necessary that the picture of signage on side be provided in the NTK? According to IPC: 

"If parking enforcement takes place outside of daylight hours you should ensure thatsigns are illuminated or there is sufficient other lighting. Appropriate illumination canbe achieved in a variety of ways for example:1. ensuring sufficient ambient lighting;2. using reflective material on signage;3. positioning signs where headlights are likely to illuminate them."

Only thing I've got are A4 printed copies of the sign from the solicitor. 

KeithP

mar_88 said:

Only thing I've got are A4 printed copies of the sign from the solicitor. 

Are those photographs of the actual signs onsite, or are they just pictures of artwork that is supposed to represent what a sign might look like?

mar_88

KeithP said:

mar_88 said:

Only thing I've got are A4 printed copies of the sign from the solicitor. 

Are those photographs of the actual signs onsite, or are they just pictures of artwork that is supposed to represent what a sign might look like?

Artwork, not photographs. They've sent a map with the location and size of each type of signs on site (airport, it is a "stopped in a no stopping area" for 39 seconds) , but it does not mark where the infraction took place.

Coupon-mad

"Is it necessary that the picture of signage on side be provided in the NTK?"

No.

mar_88

Coupon-mad said:

"Is it necessary that the picture of signage on side be provided in the NTK?"

No.

I'll focus on POFA compliance, then. 

This is what I've got now: 

ORDER DISMISSING THE CLAIM

17. The Notice To Keeper (NTK) issued by the Claimant on XX XXX 2019 does not comply with the

wording specified under paragraph 9(2)(f) of Schedule 4 of Protection of Freedoms Act 2012 (POFA)

which defines the start of the 28 days period as the day the notice is given, and not the date the notice

is issued (posted) as per the NTK wording (Exhibit XX) . The date the notice is presumed given is

specified under paragraph 9(6) as ”the second working day after the day on which it is posted; and

for this purpose ’working day’ means any day other than a Saturday, Sunday or a public holiday in

England and Wales”. Therefore, the conditions that must be met for purposes of paragraph 4 (Right

to claim unpaid parking charges from keeper of vehicle) in 6(1)(b) are not met.

18. Furthermore, the conditions set by the IPC Code Of Practice to be met by the Claimant in order to

be entitled to pursue the unpaid Parking Charge against the keeper of the vehicle are specified under

Schedule 3: ”Where a Parking Charge remains unpaid 28 days after a Notice to Keeper has been

served, further correspondence may be sent to the Motorist to pursue the unpaid Parking Charge.

Where Parking Charges are pursued against the keeper of the vehicle using the liability created by

Schedule 4 of POFA the operator must ensure compliance with all relevant sections”.

19. The vital matter of ’keeper liability’ regarding the law when parking on private land was confirmed

by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015

in the Annual Report where he stated:

“There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver.

Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice

issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted

that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution

where details of the driver of a vehicle must be supplied when requested by the police, pursuant to

Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to

name the driver. [...] If... POFA 2012 Schedule 4 is... not complied with then keeper liability does

not generally pass.” (Exhibit XX)

20. It is neither admitted nor denied that the Defendant was the driver of the vehicle at the time the

alleged incident took place. It is now 2 years and 7 months since the material date. The Particulars

of Claim set out no positive case regarding the identity of the driver. As a consequence, the Claimant

is not legally entitled to assume keeper’s liability and thus the claim should be struck out.

21. Given that more than 4 months has passed from issue of proceedings and service of the claim was

defective (i.e. it was never served) the Defendant submits that this particular claim is dead and the

period for service cannot be extended by this application process. The Defendant had no details of this

claim until XX xxxx 2022, therefore, if the Claimant believes there is a cause of action then the correct

procedure would be to file a claim afresh and to the right address, after furnishing the Defendant with

the information required under the pre-action protocol for debt claims, issued this time to the correct

address for service for this Defendant, which is known.

22. There are several authorities for this, including the judgment in Boxwood Leisure Ltd v Gleeson

Construction Services Ltd & Anor [2021] EWHC 947 (TCC), which is a reminder of the strictness of

the requirements of CPR 7.6 and how difficult it is to use other parts of the Civil Procedure Rules to

rectify a failure to serve the claim form within the requisite period: “A claimant is not entitled to rely

on the wide, general powers under CPR 3.10 or CPR 3.9 to circumvent the specific conditions set out

in CPR 7.6(3) for extending the period for service of a claim form”.

23. In Michael Vinos v Marks & Spencer plc [2001] 3 All ER 784 the Court of Appeal considered whether

any extension of time should be granted under CPR 7.6 in circumstances where the defendant had

been notified of the issue of a claim form but the claim form had not been served within four months

as required by CPR 7.5 and the application was made after expiry of that period. The court refused

to grant relief on the basis that it did not have power to do so.

24. As the Claimant have not provided evidence that they have applied for an extension of the period of

service in line with CPR 7.6, the claim must be dismissed.

Castle

mar_88 said:

KeithP said:

mar_88 said:

Only thing I've got are A4 printed copies of the sign from the solicitor. 

Are those photographs of the actual signs onsite, or are they just pictures of artwork that is supposed to represent what a sign might look like?

Artwork, not photographs. They've sent a map with the location and size of each type of signs on site (airport, it is a "stopped in a no stopping area" for 39 seconds) , but it does not mark where the infraction took place.

Airports are subject to Byelaws; so, no POFA.