(BRITANNIA PARKING) DCB Legal turned Claim Form

WontPayAPenny

Also, in my email to these guys (using the robust template), shall I state that I am the keeper (obviously the truth) but state that I WAS NOT the driver (not so much the truth)? Will it bite me in the bum when it comes to writing a Witness Statement.  I have not admitted that I am the driver at any stage so far.
It was not POFA compliant

WontPayAPenny

Guys, the time has come. AoS was filed five days after the issue date, so it should give me till the end of the 29/7 if I am not mistaken. My defence, using the amazing template, is nearly complete. If I am not mistaken, I should reserve the “fleshy, storytelling points” for the witness statement, and hammer legislation down in this defence (at least the bits they haven’t complied with), while directly referencing the listed PoCs?

Also, as it’s so long ago, I can’t recall whether or not I was the driver . There are two other people insured on this car, I cannot say for certain who the driver was.  

Shall I mention these two points, one of them, or neither?

Fruitcake

If you genuinely can't recall who was driving, for the very valid reasons you mentioned above, then do include it in your defence. However, if the NTKs were PoFA compliant, then the keeper can still be held liable.

Coupon-mad

That's dated over a month ago.

You need to respond to the allegation: 'failed to make a valid payment' in your paragraph 3.  Don't play games pretending you don't know who was driving.  Don't do that to yourself.

KeithP

With a Claim Issue Date of 24th June, and having filed an Acknowledgment of Service in a timely manner, you have, as you say, until 4pm on Monday 29th July 2024 to file a Defence.

That's just four days away but plenty of time to produce a Defence.

To create a Defence, and then file a Defence by email, look at the second post in the NEWBIES thread.

Don't miss the deadline for filing a Defence.

Do not try and file a Defence via the MoneyClaimOnline website. Once an Acknowledgment of Service has been filed, the MCOL website should be treated as 'read only'.

WontPayAPenny

Fruitcake said:

If you genuinely can't recall who was driving, for the very valid reasons you mentioned above, then do include it in your defence. However, if the NTKs were PoFA compliant, then the keeper can still be held liable.

Certainly were not PoFA compliant; they were the main points in my appeal for all 3 of them at Internal Appeals and POPLA.


“The PCN is not compliant with PoFA 2012 Schedule 4 Paragraph 9 (2)(e), as in the Notice to Keeper, although the operator invites me to either pay or nominate the driver’s name and address of service (thereby complying with (i) and (ii)), they do not STATE anywhere in their Notice that they (the creditor/operator) do not know the name or curent address of service for the driver. This omission/false implication of compliance to the Protection of Freedoms Act 2012, therefore, invalidates keeper liability.”

^ This was one of 3 points made to POPLA, who obviously wouldn’t take any point as a reasonable answer. This non-PoFA compliance was the same for all 3 of the PCNS. Hey, I’d say it’s a valid reason; there are two keys for the motor, and 3 people insured on it. Those dates are not significant enough to me for me to confidently say that I was the driver. However, I certainly am (unashamedly) the keeper.

Coupon-mad said:

That's dated over a month ago.

You need to respond to the allegation: 'failed to make a valid payment' in your paragraph 3.  Don't play games pretending you don't know who was driving.  Don't do that to yourself.

As a genuine question, why not do that? There is a reason I have not named the driver, right? 

If I am to answer that allegation, I wouldn’t be sure what reason they would be suggesting that I allegedly “failed to make the payment as the driver of the vehicle”. Not only can I not recall who the driver was on any of the three days listed, I cannot wholeheartedly explain the alleged actions of, potentially, other drivers and as to why they may have failed to make what Britannia Parking deems “valid payment”. I can positively say that I always attempt to make valid payments, so the allegation that on three occasions that I was a non contract-fulfilling driver seems a bit bizarre to me. 

^Something along these lines? Or is this more for the WS?

WontPayAPenny

The facts known to the Defendant:

2. The facts in this defence come from the Defendant's own knowledge and honest belief.  Conversely, the Claimant sets out a cut-and-paste incoherent and sparse statement of case. The POC appear to be in breach of CPR 16.4, 16PD3 and 16PD7, and fail to "state all facts necessary for the purpose of formulating a complete cause of action". The Defendant is unable, on the basis of the POC, to understand with certainty what case, allegation(s) and what heads of cost are being pursued, making it difficult to respond. However, the vehicle is recognised and it is admitted that the Defendant was the registered keeper. The Defendant is not certain of who the driver is due to the length of time that has passed.

3.  The Defendant cannot genuinely ascertain why it is alleged that the driver failed to make a valid payment on these dates. Not only can the Defendant not recall who was driving, the allegation that the driver had failed to make a “valid” payment on 3 separate dates is not one that the Defendant can concur with.

Is this sufficient if in addressing the POC that pursues me as the driver. I cannot outright deny in this, as I must maintain the fact that the driver is unknown, by both themselves and I (CCTV can’t be revealed, right?). It was stated that if the POC is not addressed, it’ll be assumed that I am liable.

Gr1pr

The basics are that its a pay to park car park, the signage created a contract with the driver on the day by conduct, the driver reads the signs and pays, the parking company provided the parking for the duration paid for 

The POC state that the driver failed to make payment so is in breach of the parking contract, as defined by the terms and conditions on the signs, regardless of who was driving. This means that the parking company has not identified a valid payment for each date that can be attributed to the VRM details their ANPR cameras captured on entry and exit 

Nothing to do with CCTV, its not alleged and its not a factor 

If Britannia fully complied with POFA then as keeper they may have you over a barrel, but without complying with POFA they are pursuing you on the reasonable assumption that you may well be the driver, especially if there is no denial and no proof that you were not the driver 

The claim will then revolve around the balance of probability. ( Not actual proof. ) That on balance the court needs to be more sure than not that you are the likely driver, so 51% sure would settle it.  Known as OTBOP , on the balance of probability , MORE SURE THAN NOT being the test in absence of an actual admission or complete denial 

One defence point would be proof of payment on each occasion, even if the incorrect VRM was used, or a typo for example 

What you concur with, or not, isnt really addressing the POC , Failure to make payment 

Either payment was made, or it wasn't, that is the core issue here, the who was driving aspect is a legal distraction to the process, but wouldn't be a factor if Britannia had fully complied with POFA 

At this moment, it would appear that they would assume that you were the driver, due to no truthful statement categorically denying it, leaving the true POC to be dealt with, Failure to pay 

In court, you could be asked if you were the driver, under oath, the answer or lack of clarity could prejudice you

You could be asked why no drivers details were provided on each occasion, which the PCN would have asked for 

You could also be asked about the proof of payments, or lack of , to which no information has been provided 

If your honesty in court is brought into question, you won't like any consequences , especially for unreasonable behaviour, or perjury, if proven 

LDast

A judge will make a decision based on facts alone. The claimant must decide whether they are pursuing the defendant as the driver or the keeper under PoFA. There is no “balance of probability” involved. The judge can ask any question they like of either the claimant or the defendant.

There is no obligation for the defendant to admit to being the driver. If asked, the defendant can simply state that they would rather not answer the question as the burden of proof is on the claimant. The judge will make a decision on the facts.

There is enough persuasive precedent out there to put the question of whether the defendant must admit to being the driver when the obligation is on the claimant to prove their case. 

Coupon-mad

There is no “balance of probability” involved.

Oh yes there is!

I've been before several county court judges and in my experience, I disagree with that stance.  Don't do it to yourself, OP. Unless...

...There is not a reason to withhold who was driving unless all 3 PCNs were 'non-PoFA' worded.  Britannia sometimes do issue non-POFA PCNs which cannot hold keepers liable but we can't guess, because just as often they issue POFA ones (about 50-50 pot luck from what I've seen). Did you keep the NTKs?

If you insist in this stance you will likely be asked by the Judge or legal rep if you were driving.  It can get very uncomfortable.

Better to admit to driving and say what happened. How come 'valid' payment wasn't made, 3 times?  Was an app used that defaulted to the wrong car or something?

Or was the driver merely there a few minutes collecting or dropping off a passenger?