(BRITANNIA PARKING) DCB Legal turned Claim Form

WontPayAPenny

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

Thank you so much for this. Should this go in WS or Defence? If in defence, in para 2 or 3, or a separate para?

LDast

It depends whether the defendant is being sued as the driver or the keeper. If the PoC don’t define which, then state in the defence that the claimant has not specified and that the court should order the claimant to specify which.

if the defendant is unable to properly defend based on sparse or inadequate PoC then say so and use a short defence with a draft order forcing the claimant to comply with CPR 16.4(1)(a). 

WontPayAPenny

 LDast said:

It depends whether the defendant is being sued as the driver or the keeper. If the PoC don’t define which, then state in the defence that the claimant has not specified and that the court should order the claimant to specify which.

if the defendant is unable to properly defend based on sparse or inadequate PoC then say so and use a short defence with a draft order forcing the claimant to comply with CPR 16.4(1)(a). 

In my claim form that i posted earlier, I’m being pursued as the driver and as the keeper in the alternative. Is me being pursued as the driver when I can’t recall who the driver was, nor am I obligated to name who it likely may be, be sufficient for me not being able to properly defend.

How can someone give a reason as to why 3 payments weren’t made by a driver for a VRN if they can’t recall who the driver was?

Coupon-mad

It is the Claimant's case to prove. Not your burden. The D could suggest that:

- it could have been a case of a broken machine or non-functioning app

- or poor signage, not clear that this was P&D

- could have been a typo in the VRM (or wrong car on the app) like I already posted earlier in your thread over the weekend

WontPayAPenny

Coupon-mad said:

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.

If questioned about POPLA, I have continued to dispute because, bar their point of not being able to ascertain who the driver was, I disagree that their partial compliance with PoFA can surmount to full compliance, purely based on inference. I also questioned their credibility when the same person adjudicated two of my cases, within 5 mins of each other, with word for word spelling mistakes included; it was evident that the paragraph was copied and pasted, and led me to believe that my case was not adjudicated individually and fairly and (on a case by case basis).

How do I introduce this in my defence? Submitting in the next hourish so that I make 4pm

LDast

Attach an order to the defence requiring the claimant to amend the Particulars as they are in breach of the CPRs and PDs.

https://www.dropbox.com/scl/fi/gkv600e5h7bgsuswkan0l/short-defence-order.pdf?rlkey=cce8wmu56zwhtikoo9eq3ciyu&dl=0

That draft order would need to be amended if you are using the template long defence. Nothing to stop you drafting an order as long as you refer to it in your defence, preferable as a preliminary matter and hope that the allocating judge reads and agrees. 

WontPayAPenny

LDast said:

Attach an order to the defence requiring the claimant to amend the Particulars as they are in breach of the CPRs and PDs.

https://www.dropbox.com/scl/fi/gkv600e5h7bgsuswkan0l/short-defence-order.pdf?rlkey=cce8wmu56zwhtikoo9eq3ciyu&dl=0

That draft order would need to be amended if you are using the template long defence. Nothing to stop you drafting an order as long as you refer to it in your defence, preferable as a preliminary matter and hope that the allocating judge reads and agrees. 

Do I appendage this at the bottom, and edit to suit. Or Attach as a seperate pdf?

Gr1pr

The fact is that parliament did not impose POFA 2012 as requiring it in all cases, it's a law that a claimant may choose to comply with, as in the Beavis case, or they can choose not to use it at all, like VCS , Excel, APCOA and numerous others choose to do in their own cases, including VCS versus Edward etc , so not mandatory and not even used or mentioned in many PCNs 

I don't need to justify that its not mandatory, because none of it was, or is, its optional for those who wish to use it, on relevant land only. ! Its main usage in private parking cases is imposing keeper liability on relevant land, so allowing transfer of liability from the driver to the keeper 

POPLA decided their decisions in the same way that coupon mad alluded to earlier, especially because this is Britannia and not VCS, not Excel, not APCOA 

Bear in mind that POFA doesn't even apply in Scotland yet, but people in Scotland still get chased for private PCNs, especially multiple PCNs , on the assumption that the keeper was also the driver 

WontPayAPenny

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 cannot recall who was driving with certainty. As in VCS v Edward, it is not be appropriate to draw an inference that the keeper was the driver, due to merely lacking the information as to who was driving

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 fully defend for this reason. Perhaps it was a case of a non functioning P&D machine, or a non-functioning app. It could have been due to the lack of prominent signs; the Defendant captured evidence of a lack of maintenance by the operator that failed to make signs visible to drivers just under two months after the alleged contravention, this may have been the case at the time of the alleged contravention. There may have been a typo, either on the app or the PDT machine (wether fully functioning (with all keys working) or not) when keying the VRN in.

How’s this?

Castle

WontPayAPenny said:

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  “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. 

Except for the fact that the 28 days starts the day AFTER the date given-Para 9(2)(f).