Help with a CCJ Set Aside please?

Coupon-mad

But I don't understand how CP Plus can choose not use POFA? 

Because they can use the 'old rules' and send a Notice that can only hold a driver liable, and where they just ask the keeper who was driving and invite the keeper to pay/appeal.  But they can't hold the keeper liable.

They are allowed to do this because the BPA and DVLA say they can...

where would I go to get an authoritative statement saying that the claim should be struck out because of it? I assume I should sit this center of my draft defence.

Any other CP Plus or HIghview defence!  Already done a hundred times this year.

Search the forum, there is standard wording most commonly seen in Highview threads (same stable - Group Nexus).  Never use the POFA..

1505grandad

Also, in the NEWBIES there is this:-

"Want to dig deeper? Check the compliance of your Notice to Keeper, if the PPC is citing 'keeper liability' under the POFA. Here's a link to Schedule 4 of POFA 2012 which applies in England/Wales only (look for the words shown in paragraph 8 if it's a 'windscreen ticket followed by a NTK', or the words in paragraph 9 if it's a postal PCN only):

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Mars28

Thanks very much. Been routing around the forum and think I've got the relevant paragraphs to put in my defence, and will refer to the expectation of a non-POFA compliant NTK/PCN in my WS. Though I suppose I'll only be able to describe the non-compliances once DCBL have sent me the PCNs as part of the SAR.

Thanks again for all your help. I plan to pay for the N244 first thing tomorrow and then double check my WS, DO and N244 before submitting that later on. There's a lot to take in and my mind gets muddled when I've been doing it for too long into the night!

Thanks again,

Mars28

Sorry for keeping on asking for help, but just wanted to get views on the paragraph below which I have included in my WS in support of CPR 13.3, just in case a judge didn't agree with my arguments for 13.2.

Still trying to find the evidence of me not being in the area on the date in question, it's surprisingly hard to look up 2 year old iMessages, so trawling through work e-mails for some proof before I enter a 'denial' as being the driver. If I can't find it in next couple of hours then I'll remove para 2 below and submit it separately if I find it.

Additionally, CPR 13.3 also applies as there are very good reasons to set aside this claim:

1. The claim includes an exaggerated, disproportionate and indeed, false 'debt recovery' sum.  In fact, no debt recovery occurred nor cost the claimant any money whatsoever, in addition to the original parking charge.  The Government has described the false fixed 'fee' of £70 as 'designed to extort money from motorists' in the new statutory Code of Practice this February, and has banned it.

2. If I can find proof today - paragraph denying being the driver. If not, save for Defence (and possibly a supplementary WS?)

3.  The Defendant is still waiting details of the Parking Charge Notice (PCN) and Notice To Keeper (NTK), but the Defendant, as the registered keeper of the vehicle in question notes that they cannot be held liable due to the Claimant not complying, of their own volition, with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012 ('PoFA'), Schedule 4.

4. In the Particulars of Claim (POC) it is stated that the Defendant is liable as the driver or keeper, but the Claimant has failed to provide any evidence that Defendant was also the driver. The Defendant cannot be held liable for the charges as the keeper of the vehicle, which has previously been clarified by the Parking and Traffic Appeals Service (‘PATAS’) and Parking on Private Land Appeals (‘POPLA’) Lead Adjudicator and barrister, Henry Michael Greenslade. He clarified that, with regards to keeper liability: 

1. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).

Le_Kirk

Your point 1 is included in the standard defence but I don't think it is a good reason for having it set-aside.  If you cannot get it set aside by CPR13.2, the CPR13.3 is for any other reason and the defendant has a realistic chance of defending the original claim.  That is why you include a draft defence.

Mars28

Ok thanks.

I was not planning on submitting a Draft Defence until my SAR came back in a week or two, or maybe I miss-understood what Coupon-mad advise previously? So I thought I would just include a few points to make the case now that there are some Defence points to make, but in full expectation that there will be more once the SAR is returned. I might break it out into a stand alone Draft Defence then.

On the same note - I've dug out time and geo-located photos which prove I wasn't in the country at the time of the PCN. I suspect I have e-mails corroborating this also - will check once the kids have had dinner. Sounds like this might be my silver bullet when it comes to the Defence stage though!

Coupon-mad

Perfect!  You don't need to PROVE that you were not driving anyway.  You don't have to meet any burden of proof.  Your account and honest belief is enough but that evidence is even better.

Yes, you understand it correctly: you do not need to submit a written defence yet, but the fact you were not driving means there was never a cause of action against you because CP Plus never use the POFA 2012 (except in windscreen PCN cases which are as rare as hen's teeth).

Mars28

Great thanks. I'll update my WS to state that I deny being the driver and therefore the there was never a cause of action against me due to CP Plus not being compliant with POFA 2012 and get get submitted.

I then need to get my head properly around what that actually means and evidence of it. I understand (I think) that the PCNs they issued do not meet the requirements set out in POFA's schedule 4, and therefore they had no right to take it to court for enforcement against the keeper, as clarified by Henry Greenslade.

Coupon-mad

Yep.  They don't try to hold the keeper liable.  No 9(2)f warning about keeper liability appears.

Mars28

Thanks, keep tweeking my WS - need to just commit. Final version of the likely defence paragraph, but I'll develop it into a Written Defence next.

1. Additionally, CPR 13.3 also applies. I am still awaiting additional information from the Claimant before I can draft my outline defence, but I believe there are already very good reasons to set aside this claim:

1. I was not the driver. CP Plus Ltd has chosen to serve a claim against me as the keeper, despite knowing they have not complied with the ‘keeper liability’ requirements for theParking Charge Notice (PCN) and Notice to Keeper (NTK), as set out in the Protection of Freedoms Act 2012 (POFA), Schedule 4.

2. As the claimant did not meet the POFA requirements, therefore there was never any legal authority to recover any unpaid parking charges from me as the keeper of the vehicle. (Ref: Paragraph 4, 6 and 9).

3. The Particulars of Claim (POC) state that the Defendant is liable as the driver or keeper. I don’t believe this is true as CP Plus do not abide by POFA 2012 requirements, by their own volition, and therefore the keeper, me, cannot be held liable for the charges.

4. This was previously clarified by the Parking and Traffic Appeals Service (‘PATAS’) and Parking on Private Land Appeals (‘POPLA’) Lead Adjudicator and barrister, Henry Michael Greenslade. With regards to keeper liability: 

1. “There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver and the operators should never suggest anything of the sort” (POPLA report 2015).