(BRITANNIA PARKING) DCB Legal turned Claim Form

WontPayAPenny

LDast said:

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. 

This was my logic in regards to approaching the situation. Surely, the burden of proof lies on the claimant to prove. Yes, on 3 separate occasions a valid payment was not made for the VRN in question. The liability for this break in the contract lies on the driver. It now must be determined who the driver was to be able to pursue on this basis.

If the claimant cannot prove that the driver was me, the keeper, then they can pursue me as the keeper of the vehicle, provided that the PCNs were compliant with PoFA (they were not, so this is fine).

Gr1pr said:

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 

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 

If I was asked as to whether or not I was the driver, I would say that I can’t recall. The judge must understand (I will express my concern for this to him if it shall come to it) that it is possible to perjure yourself both ways; I could deny being the driver, and I could enthusiastically admit that I am the driver, but if I do not remember, then how can a lack of outright denial mean that it can be safely assumed that I am the driver.

Drivers details were not provided on each occasion, because (like I had told BP on their appeals) that I would not state who the driver was when the PCN asked for it since it was my right to do so and that this decision was fuelled by the anger that I had held for their laid back approach, evident in their sloppy contract writing.

Gr1pr

Whilst I can agree with you if it was a Popla appeal, different parameters can make a difference in court, and the issues about OTBOP , MORE SURE THAN NOT  arguments can certainly apply, as can unreasonable behaviour 

The main consensus on this forum was summed up by member Bargepole over 3 years ago , a summation that many agree with 

https://forums.moneysavingexpert.com/discussion/6301728/driver-not-driver-undue-reliance-on-pofa-in-court-defences

But its your court case so conduct it how you wish, but don't be surprised if we disagree, that happens on forums, if you ask for advice, you might not like the replies , the choice is yours to make, not ours 

As its a multiple PCN claim, expect it to go all the way through to a hearing, so please let us know the outcome, in detail, warts and all , maybe we will learn something, whichever way it goes

WontPayAPenny

Coupon-mad said:

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?

If it’s 50/50 pot luck, then I must be lucky. I scanned and kept them all, just in case, thank goodness. All 3 were copy-and-paste with this wording. Again, it does not comply with 9 (2) (e) “STATE that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper” etc. 

The second para under the PoFA heading is compliant with (f) to warn the keeper about the consequences if the driver’s name and address is unknown after 28 days. It is not already known to the keeper that the driver’s details are unknown to the creditor. 

From the way the 1st para, 2nd sentence under PoFA Heading is written “If you were not the driver of the vehicle at the time”, it seems as though the creditor is trying to work off the presumption that the recipient of the letter (keeper) IS the driver. This is the compliant 9 (2) (e) (ii) part to invite the keeper to name the driver. But it is obvious that this hasn’t been complied with.

If I admit who was driving, this stance gets weak, The driver forgot on 3 occasions to remember to pay by phone within the day, with a PCN giving him a kick up the backside to remember to pay by phone only after the second one (yes silly i know). 

If I get asked who was driving, I was a student last year who was recieving results to decide what uni to go to during the month in question. A year has passed since, with me finishing my first year of university; a lot has happened, just like a year in many people’s lives. I cannot recall concretely as to who on 5/8, 12/8, and 26/8 drove this car into this car park. It has been a year, and finding difficulty recalling such an insignificant group of events, on insignificant dates mustn’t be THAT outrageously unheard of.

I actually tried to find a single card transaction, photo, video or message that would corroborate my lack of presence at at least one of these events, but to no avail. 

WontPayAPenny

And, is it worth stating in para 2 or 3 my reasoning for not being able to recall, or is this one for the witness statement.

When DCB Legal cancel 99%, is the 1% when the driver is admitted? I can’t see that not using 3 non-PoFA NtKs would be a massive waste

Coupon-mad

Thing is they are only arguably non-POFA on a fairly tenuous technicality.  They are intended to be POFA NTKs and a Judge may well take them to be sufficient to hold you liable.

Talking about getting lucky:

I helped a friend last year with eight Britannia PCNs and ALL of them were inexplicably their 'non-POFA' NTK versions, so all were knocked down like feathers on appeal.

Yours isn't that cut & dried.

DCB Legal are less likely to discontinue a multi-PCN case but it's not unheard of.

Good luck - I've stated my view earlier, which matches bargepole's warning thread. We've both been lay reps in court and if you were driving, we urge you to say so.

WontPayAPenny

Coupon-mad said:

Thing is they are only arguably non-POFA on a fairly tenuous technicality.  They are intended to be POFA NTKs and a Judge may well take them to be sufficient to hold you liable.

Talking about getting lucky:

I helped a friend last year with eight Britannia PCNs and ALL of them were inexplicably their 'non-POFA' NTK versions, so all were knocked down like feathers on appeal.

Yours isn't that cut & dried.

DCB Legal are less likely to discontinue a multi-PCN case but it's not unheard of.

Good luck - I've stated my view earlier, which matches bargepole's warning thread. We've both been lay reps in court and if you were driving, we urge you to say so.

Oh goodness, I do appreciate the frankness. Almost all BP PCNs I have received are non-PoFA compliant, but vary in how they are non-compliant. I am determined to win on this technicality, as not only is it clear cut to me (omitting this statement changes the whole tone of the PCN), but if these companies are not held to the strict legislation put to them, then it undermines the very institutions we rely on to enforce fairness in policy and procedure.

What benefit do I gain at this point by admitting? Can’t I still argue that the signs are not visible etc.?

Do I mention in my para 3 that in all cases, POPLA considered that there was insufficient evidence to pursue me as the driver?

LDast

I think some of you should have another read of VCS v Edward where the defendant did not admit to being the driver and did not deny being the driver. The whole point rested on the claimant having to prove their allegation, not for the defendant to be cross examined by the claimant or the judge. 

The only issue here will be whether the judge accepts that the PCN is fully compliant with all the requirements of PoFA. If the judge agrees, the defendant is likely to win. If the judge disagrees, the this is all academic. 

A reread of VCS v Edward details should be considered: https://www.dropbox.com/scl/fi/yvxek3kfwtb3qent3lj6y/VCS-Limited-v-Ian-Mark-Edward-H0KF6C9C.pdf?rlkey=niecohfdtj1n1ysh5prbsp52p&dl=0

Gr1pr

Reading through the thread there is nothing mentioned between submitting the Popla appeal and the debt collectors letters, no Popla appeal , no Popla comments, no outcomes etc 

If Popla upheld your appeals, based on the not compliant POFA aspects, plus driver not revealed, then Britannia should have cancelled the PCNs 

If Popla sided with Britannia, then you have not shown that decision or the 3 decisions so far 

You were told early doors that Britannia would sue you, UNLESS the PCNs were cancelled at some point 

POFA 2012 is not mandatory, parking companies will always assume that the keeper was also the driver, they always have done, its always been that case unless the keeper is adamant that they were not the driver, like Bargepole stated over 3 years ago 

I suggest that you share a redacted copy of a so far not shown POPLA decision before asking about its inclusion 

No landowner authority and poor signage should ALWAYS be in any Popla appeal and in any private parking court case, so are probably already mentioned in the template defence 

Please note that at this moment in time it's an unregulated industry , ask yourself why the MPs spent 3 years getting a law onto the statute book and have now spent over 5 years trying to implement it 

Coupon-mad

LDast said:

I think some of you should have another read of VCS v Edward where the defendant did not admit to being the driver and did not deny being the driver. The whole point rested on the claimant having to prove their allegation, not for the defendant to be cross examined by the claimant or the judge. 

The only issue here will be whether the judge accepts that the PCN is fully compliant with all the requirements of PoFA. If the judge agrees, the defendant is likely to win. If the judge disagrees, the this is all academic. 

A reread of VCS v Edward details should be considered: https://www.dropbox.com/scl/fi/yvxek3kfwtb3qent3lj6y/VCS-Limited-v-Ian-Mark-Edward-H0KF6C9C.pdf?rlkey=niecohfdtj1n1ysh5prbsp52p&dl=0

I agree that VCS v Edward is a great case to use if the OP really wants to hang their hat on the POFA, but in Edward (at least at the appeal) it seems he wasn't in court to be cross-examined.

The OP will be. I am worried that they'll be in danger of getting tripped up by clever questions about why they didn't pay to park.  A Judge might focus on that, be impressed by the POPLA decisions against the Defendant, determine that the NTKs are POFA compliant and wonder why the OP has continued to dispute the case.

WontPayAPenny

Gr1pr said:

Reading through the thread there is nothing mentioned between submitting the Popla appeal and the debt collectors letters, no Popla outcomes etc 

If Popla upheld your appeals, based on the not compliant POFA aspects, plus driver not revealed, then Britannia should have cancelled the PCNs 

If Popla sided with Britannia, then you have not shown that decision or the 3 decisions so far 

You were told early doors that Britannia would sue you, UNLESS the PCNs were cancelled at some point 

POFA 2012 is not mandatory, parking companies will always assume that the keeper was also the driver, they always have done, its always been that case unless the keeper is adamant that they were not the driver, like Bargepole stated over 3 years ago 

I suggest that you share a redacted copy of a POPLA decision 

No landowner authority and poor signage should ALWAYS be in any Popla appeal and in any private parking court case, so are probably already mentioned in the template defence 

Please note that at this moment in time it's an unregulated industry , ask yourself why the MPs spent 3 years getting a law onto the statute book and have now spent over 5 years trying to implement it 

Haha POPLA should’ve upheld my appeals but why would they? 2 out of the 3 were completed by the same guy within minutes of each other, and a word for word copy of the rationale in both cases. So much for “on an individual case by case basis”.

What do you mean that PoFA 2012 is not mandatory? It’s legislation, and if mere inference to legislation is compliant, why are PCNs templated such that (when compliant), it uses Sch 9 Ad Verbatim?


When assessing an appeal POPLA considers if the parking operator has issued the parking charge notice correctly and if the driver has complied with the terms and conditions for the use of the car park. After reviewing the evidence provided by both parties, I am not satisfied that the appellant has been identified as the driver of the vehicle in question at the time of the relevant parking event. The operator is therefore pursuing the appellant as the Registered Keeper of the vehicle in this instance. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. Having reviewed the evidence provided by the operator, I am satisfied that the Notice to Keeper is compliant with the requirements of PoFA 2012. Therefore, the operator is able to transfer the liability onto the keeper. The appellant has commented on the PCN not mentioning that the parking operator do not know the name and address of the driver, and therefore does not comply with PoFA 2012. However. upon reviewing the PCN, I can see that it states, “You are advised that if, after 28 days from the date given (which is presumed to ne the second working day after the Date Issued), the parking charge has not neen paid in full and we do not know noth the name and current address of the driver.” I am satisfied that this wording states that the parking operator do not know the name and address of the driver, and therefore the PCN does comply with PoFA 2012. The British Parking Association (BPA) has a Code of Practice which set the standards its parking operators need to comply with. Section 7.1 of the BPA Code of Practice outlines that parking operators must have written authorisation from the landowner or their agent, to manage the land in question. This can come in the form of a witness statement under Section 23.16B of the BPA Code of Practice or a full contract. In this case the parking operator has provided a witness statement. I note the appellant has responded to the parking operator’s evidence and commented on it not having any date on it. However, POPLA works on the balance of probability, and the fact that there are signs still in the car park, and the parking operator is issuing PCNs via automatic number plate recognition (ANPR) cameras then I am satisfied the parking operator still has authority to manage the land. Therefore, the appellant’s comments have no effect on my decision. Section 19.3 of the BPA Code of Practice says parking operators need to have signs that clearly set out the terms. In this case the parking operator’s evidence shows the car park is reasonably small and has 19 signs placed at the entrance and throughout the site detailing the terms and conditions. The appellant has provided photographic evidence from the site to demonstrate there are no signs at the site. However, upon reviewing the appellant’s evidence I can clearly see multiple signs throughout the site that are all easily visible throughout the car park. The appellant has commented on the signs the parking operator has provided being old and therefore not relevant. However, the signs the appellant has provided are dated  XX October 2023 which is just under two months after the parking event. Based on this I am satisfied the signage is still within the car park. I am satisfied from the evidence provided that the signage at the site meets the requirements of the BPA Code of Practice and that the appellant vehicle had sufficient opportunity to familiarise themselves with the terms and conditions. The signage is clear that the site is a tariff car park, and if a motorist fails to comply with the terms and conditions then a PCN will be issued. The evidence provided by the parking operator shows the driver was on the site for five hours and XX minutes, and there was no payment against their full, correct vehicle registration number. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. POPLA cannot allow an appeal if a contract was formed, and the motorist did not keep to the parking conditions. I note the appellant has responded to the parking operator’s evidence and commented on several comments made by the parking operator and the way the evidence has been provided. However, POPLA cannot dictate to a parking operator on what information it provides or how it is provided. I acknowledge the appellant has commented on the parking operator providing information for three appeals within the same document. However, as the appellant is aware POPLA assess each appeal on its own individual basis. Therefore, whether the parking operator has provided evidence for another PCN or not in the evidence pack has no effect on my decision. After considering the evidence from both parties, the driver failed to make a valid payment and therefore did not comply with the terms and conditions of the site. As such, I am satisfied the PCN has been issued correctly and I must refuse the appeal.

Not to mention his lack of proofreading, the wording that he considers compliant with 9 (2) (e) is actually only compliant with 9 (2) (f). This just states the consequence of not knowing the driver and details.

If the parking companies will always assume the keeper is the driver, it would be a bit silly to do so; you would be disregarding the fact that anyone (more likely to be someone insured on the car) could have been driving, as they do not know circumstances from just 2 pictures.

Hence why legislation requiring that they STATE that they do not know who the driver must exist, if you see where I’m coming from