Getting Defence Ready

Gr1pr

I agree with your conclusion, it has to be submitted before the hearing date so no problem in giving them the details 

You can ask for a copy, they may agree, or may not agree, to show it at this early stage 

Biscuits101

Hey just a small update with the claim.

DCBLegal have stated their client intends to proceed with the claim. I have received and completed the N180 form from the CNBC and emailed this off within a timely manner. 

Will start on the WS next. Assuming the mediation will likely take place soon unless they decide to pull out. 

Biscuits101

@Coupon-mad

Some further update to the current claim. I had a mediation early this year to which I denied any liability to the claim. I was offered a reduced settlement fee in the mediation which I had declined. What was interesting was that DCBLegal also sent me an email (on the same day) directly with a settlement fee, but with an even lower number!

I have now received a letter from the court with a hearing at the end of May. I will look to get the WS finalised over the next week or so. The letter also said that the claimant is to pay the trial fee by the 28th April. This is also the same date listed as to send the court and other party copies of all documents (Roughly 4 weeks before the hearing). 

I was under the assumption the date to send the WS and other documents was usually 14 days before the hearing? Understand that isn't a set rule as such but was wondering when will I expect to see DCBLegal's WS?

Coupon-mad

Biscuits101 said:

Background, 2024:

7 PCNs as a resident.
Two settled on appeal for £20 each, five blocked from appealing, now being sued

Claim from DCBLegal - 5 PCNs (£170 each from VCS): £850 plus interest and court fees

''The defendant is pursued as the driver of the vehicle for breach of the terms on the signs (the contract). Reason:94) Parked Without Displaying A Valid Ticket/permit.''

For some context I had moved into my partners apartment so was now living as a resident at the location where these charges were given. I had also visited many times in the months to moving in without having any PCN's.

I received a 'Privacy Notice' on the dash of the vehicle when these happened which did not say I was charged with anything but images of the vehicle and registration were taken. A month or so later I received 4 letters through the post but because they were at a family members address (which I did not visit often after moving) I had not seen the letters until late.

Because of this I was only allowed to appeal 2 of the 4 due to the time frame.

I had mentioned in my appeal about being a resident at the location and provided them an image of my permit. In some of the images from the PCN's you can see the permit and it's holder had fallen off the dash and landed upside down so it is clear I was authorised to park at the location. I also said this was the same reason for all 4 of the PCN's but was told they needed to be treated as separate matters despite not being able to appeal online anymore after going past their 28 day period.

This appeal was refused but the fee was reduced to £20 which I paid (Which is funny as the signage outside says a reduced fee of £60 if paid within 14 days of the charge). I was then sent another 3 PCN's by letter which are all dated one day after the other in despite the car not being driven or moving from its allocated parking space. Unfortunately during these days the permit had fallen off again, landing on the floor inside the vehicle with myself unaware.

7 PCN's were issued before I had seen the original 4 letters and made my appeal to VCS. My partner had spoken to the estate agents of the property who said it would be resolved. After this I had ignored the letter chain from DCBL and DCBLegal until a LoC was issued. 

I have been in contact with the estate agents after the LoC who provided me a letter saying that as a Tennant of the property 'you are entitled to one allocated parking space'. The estate agents also informed me they could not get in touch with the parking firm (feels like they were being ignored on purpose). 

I feel it is worth noting that the car park has enough spaces for well over 15 vehicles.

I have never seen more than 8 vehicles parked there in total so believe there is a strong case to suggest they have suffered no loss. The apartment block is also on a public street, which is of course free to park, but is very tight and narrow leaving little space to park along. So one could only assume that while the signage says it is 'private land', it is to be used for residents of the apartment.

I will be using the base template to form my defence.

Biscuits101 said:

Some further update to the current claim. I had a mediation early this year to which I denied any liability to the claim. I was offered a reduced settlement fee in the mediation which I had declined. What was interesting was that DCBLegal also sent me an email (on the same day) directly with a settlement fee, but with an even lower number!

I have now received a letter from the court with a hearing at the end of May. I will look to get the WS finalised over the next week or so. The letter also said that the claimant is to pay the trial fee by the 28th April. This is also the same date listed as to send the court and other party copies of all documents (Roughly 4 weeks before the hearing). 

I was under the assumption the date to send the WS and other documents was usually 14 days before the hearing? Understand that isn't a set rule as such but was wondering when will I expect to see DCBLegal's WS?

DCB Legal aren't the Claimant, so it's not their WS. They'll either send it later this month or they'll discontinue.

Le_Kirk

Biscuits101 said:

I have now received a letter from the court with a hearing at the end of May. I will look to get the WS finalised over the next week or so. The letter also said that the claimant is to pay the trial fee by the 28th April. This is also the same date listed as to send the court and other party copies of all documents (Roughly 4 weeks before the hearing). 

I was under the assumption the date to send the WS and other documents was usually 14 days before the hearing? Understand that isn't a set rule as such but was wondering when will I expect to see DCBLegal's WS?

Saw that same thing yesterday on another case.  Seems to be a court new thing!

Biscuits101

Hey guys! Hope everyone had a good Easter!

I believe I have my WS in a good position now. I have redacted any personal details, I just need to add in in the appropriate exhibit numbers. 

Please let me know your feedback!

A couple of queries I have are...

• Should I keep in the detail about the previous two PCN's (not listed in the POC) and the original appeal from those? (para 14, 15 & 27)
• I've seen some recent stuff on the Duchess of Bedford House case, should I add this in too? I wasn't sure if that was for residents who own the property themselves only or if it covers rental property too.
• Should I file evidence of the email requesting the claimants contract with the landowner?
• I've seen a few WS include the “Exaggerated Claim and “market failure” currently examined by UK Government” section from the defence but I assume there is no need for this as it was already part of my defence.

WITNESS STATEMENT OF DEFENDANT

 

1. I am XXXXX, and I am the Defendant against whom this Claim is made. The facts below are true to the best of my belief and my account has been prepared based on my own knowledge.

 

2. In my Statement I shall refer to Exhibits 00-10 within the evidence supplied with this Statement, referring to page and reference numbers where appropriate. My Defence is repeated, and I will say as follows:

 

3. I the Defendant denies that the Claimant is entitled to relief in the sum claimed, or

at all. It is denied that any conduct by the driver was in breach of any term. Further,

it is denied that this Claimant (understood to have a bare licence as agents) has

standing to sue or form contracts in their own name. Liability is denied, whether or

not the Claimant is claiming 'keeper liability', which is unclear from the boilerplate

text in the Particulars of Claim ('the POC').

 

Preliminary matter: The Claim should be struck out

 

4. I draw the court’s attention to two previous and persuasive appeal judgments which support the dismissal or striking out of this claim. I respectfully submit that dismissing this meritless claim aligns with the Overriding Objective. It is my belief that bulk litigators should know better than to make little or no attempt to comply with the Practice Direction. By continuing to plead cases with generic, auto-fill, unspecific wording, private parking firms should not be surprised when courts strike out their claims pursuant to CPR 3.4, based on the following persuasive authorities (I append transcripts of both – plus multiple area court ‘strike outs’ of parking claims that reflect those authorities – in Exhibits 01 to 03).

 

5. The first persuasive appeal judgement in Jopson v Homeguard [2016], para 18, HHJ Harris states that the “respondent was not in any position unilaterally to override the right of access which the claimant had bought when she purchased the lease”. While this appeal refers to short stay parking on residential property, the judgement supports my view to residents having authority on this matter. (Exhibit 00)

 

6. The second persuasive appeal judgement in Pace Recovery v Mr N (2016) indicates that a tenancy agreement must rule over any variation made by a third party operator. I cite District Judge Coonan final judgement, para 18, that “the tenancy agreement takes precedence over the arrangement between Sutton and yourself, the claimant, Pace Recovery. As I have said, it is a pure matter of contract that I have to decide. Therefore, the claim is dismissed”. (Exhibit 00)

 

7. I believe that this claim should be struck out due to the represented parking firm’s failure to comply with the basic requirements of CPR, and because the claim has not set out clear and coherent facts as required by CPR 16.4. The claimant has not provided sufficient clarity to explain what specific contract term was allegedly breached, making it impossible for me to adequately respond.

 

8. I believe the claim should be struck out due to the represented parking firm’s failure to overrule the tenants right to park and that their sole desire is to profit off residents who live on site.

 

Facts and Sequence of events

 

9. Date and time of the Incidents: It is admitted that on the dates listed in the POC, I was the registered keeper of the vehicle XXXXX. 

 

10. Parking Notice: The Claimant pursues a claim for non-payment of five parking charges notices (PCN) on the premises at the location stated within the claim. At this time, I was a resident of the apartment building XXXXX and had moved in with my partner (XXXXX) this same month (XXXXX), who was already the current lead tenant. I was given permission that parking would be available as by the letting agent (Exhibit 00) and as a resident, it is reasonable to expect that I would be allowed a parking space on the premises at the location. There is also no mention within the pre-existing lease agreement that lists any conditions regarding parking on site managed through a third party or the display of a permit. (Exhibit 00)

 

11. Having a Permit: Within XXXXX I was given a permit by my partner, and this was placed within the car. The first attempt of a notice left on the vehicle by the claimant’s site enforcer, listed as a ‘Privacy Notice’, did not clarify of any offense. It only stated that images were taken of the vehicle and they “have reasonable cause that a contravention has occurred” (Exhibit 00). In my view at the time, because it was not clear I was in breach of any alleged offence, I had continued to park on the premises of the residency unaware there would be a concern regarding the display of a permit.

 

12. In the PCN dated XXXXX it is visible that a permit was present inside the car despite being upside down on the dash. Due to my job at the time which relied on other methods of transport, I did not frequently drive the vehicle everyday so was unaware the permit had fallen off the dash or was not clearly visible. Between the dates of the XXXXX, XXXXX and XXXXX this is clear in photos provided by the Claimant in their Notice to Keeper (NTK), sent through the post, as the car was in a stationary position for the three consecutive days. (Exhibit 00)

 

13. XXXXX, where the apartment building is located, is a very narrow one-way street leaving no room to park on during evenings and early mornings. The street is often found to be overcrowded ergo any space on the premises of the apartment building, XXXXX, is in my opinion designated for its residents (Exhibit 00). From my observation, the car park at the location is likely to fit over fifteen vehicles. During my residency while living there, the car park covering both the front and back of the property was never seen to be more than half full (Exhibit 00). I did not restrict access to any other residents of the property who needed to park themselves.

 

14. Previous Appeals: The claimant had also issued two other parking PCN’s to me which are not listed in this claim. This totals to seven PCN’s with all identical aspects. I had attempted to appeal all charges to the claimant at the time of receiving each NTK but was only allowed to appeal two of the seven through their online system due to not seeing some of the letters within their time frame for appeal. A permit was provided to the claimant in this appeal. In their response to both charges, the claimant stated “each Charge must be appealed separately” but then gave no option or explanation on how to appeal the other charges (Exhibit 00). 

 

15. In one of these PCN’s, the same vehicle named in the POC was parked at the back of the property which can only be accessed through a security gate with a keypad that only residents are aware of. (Exhibit 00)

 

 

Primacy of existing residential parking rights

 

16. Under the lease for the tenancy agreement, there are no terms within for the requirement of vehicles to display parking permits, or to pay penalties to third parties, such as the Claimant.

 

17. Within the agreement, under ‘Definitions’, the “Premises” includes reference to a parking space. (Exhibit 00)

 

18. The letting agency have also confirmed in a letter to myself that a tenant of the property is entitled to one allocated parking space. (Exhibit 00)

 

19. Both this letter and the tenancy agreement have already been sent to the claimant’s legal team but were never responded back to. 

 

20. With reference to the landholder contract, it is averred that the claimant does not have a contract with or flowing from the landowner, otherwise they would have produced it. The claimant is put to strict proof that the contrary is true.

 

Signage on site

 

21. The signage on site does not clarify that the ‘private land’ is for residents. Nor does it clarify that parking on site overrides the contract to residents who live at the property. (Exhibit 00). 

 

22. It states that the land is for “Valid Permit Holders Only” yet there is no mention on how to obtain a permit or gain access to the back area of the property through the locked gate. In my view, one would assume to obtain a permit is to be a resident at the property therefore the purpose of the “private land” must be for use of its residents. 

 

23. In failing to represent this through their signage on site, I have requested to the claimant’s legal team to provide me with this written confirmation between the claimant and the landowner that states they have authority that overrules the tenants right to park. This was ignored and never provided. 

 

24. Acknowledging the points above in paragraph’s 19 and 20, the claimant, a member of the IPC, has ignored it’s code of practice as under section 14.1 states, 

 

“Where controlled land is being managed on behalf of a landowner(s), before

a parking charge can be issued written confirmation must be obtained by the

parking operator from the landowner(s)”

 

25. I assert that the operator’s signs cannot 

(i) override the existing rights enjoyed by residents and their visitors

(ii) that parking easements cannot retrospectively and unilaterally be restricted where provided for within the lease. 

 

Unenforceable Additional Costs

 

26. In addition to the multiple disputed claim amount of £100 per PCN, the Claimant has added a sum of £70 that is disingenuously described variously as 'debt collection costs', ‘additional charges levied to cover the cost of recovery’, ‘additional administration costs’, ‘debt recovery costs’, ‘initial legal costs’ and ‘recovery costs’. The added £60 constitutes double recovery and the court is invited to find the quantum claimed is false and an abuse of process as was found by District Judge Claire Jackson (now HHJ Jackson, a Specialist Civil Circuit Judge) in Excel vs Wilkinson: G4QZ465V, a similar case in which £60 had been added to a parking charge, heard in July 2020 (the transcript of which is Exhibit 00). The Judge concluded that such claims are proceedings with 'an improper collateral purpose'. Leave to appeal was refused and that route was not pursued."

 

27. While in their NTK it states they accept a £60 fee within 14 days of the parking charge, the appeal reply (Exhibit 00) also stated that they were willing to accept a “reduced settlement charge of £20” if done so by the 20/02/2024. This is far past their initial 28-day period thus I struggle to comprehend how the inflated £70 fee for debt recovery is added to the original £100 charge. This is a clear act of double recovery

 

28. These additional costs appear to be arbitrary and penal in nature. Under established law principles, such as ParkingEye Ltd v Beavis [2015] (Exhibit 00), parking charges must either be a genuine pre-estimate of loss or commercially justified. In this case, the additional £70 is neither justified nor explained.

 

29. The claimant’s demand for additional costs of £70 per PCN is entirely baseless. It is not supported by any clear contractual term, it violates the CRA's requirements for fairness and transparency, and it constitutes an unlawful penalty charge. The court should strike out this portion of the claim as unenforceable.

 

CRA breaches

 

30. Claiming costs on an indemnity basis is unfair, per the Unfair Contract Terms

Guidance (CMA37, para 5.14.3), the Government guidance on the CRA which

introduced new requirements for “prominence” of both contract terms and “consumer

notices”. In a parking context, this includes a test of fairness and clarity of signage,

and all notices, letters and other communications intended to be read by the consumer.

 

31. Section 71 creates a duty upon courts to consider the test of fairness, including (but not limited to) whether all terms/notices were unambiguously and conspicuously

brought to the attention of a consumer. Signage must be prominent, plentiful, well-

placed (and lit in hours of dusk/darkness) and all terms must be unambiguous and

contractual obligations clear.

 

32. The CRA has been breached due to unfair/unclear terms and notices, pursuant to s62 and paying due regard to examples 6, 10, 14 & 18 of Schedule 2 and the requirements for fair/open dealing and good faith (NB: this does not necessarily mean that there has to be a finding of bad faith).

 

33. Now for the first time, the DLUHC’s draft IA exposes that the template “debt chaser” stage costs less than £9. This shows that HHJ Jackson was right all along in Excel v Wilkinson. (Exhibit 00)

 

Biscuits101

The Beavis case is against this claim

 

34. This situation can be fully distinguished from ParkingEye Ltd v Beavis [2015], where the Supreme Court found that whilst the £85 was not (and was not pleaded as) a sum in the nature of damages or loss, ParkingEye had a 'legitimate interest' in enforcing the charge where motorists overstay, in order to deter motorists from occupying spaces beyond the time paid for and thus ensure further income for the landowner, by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest (in that case, based upon the facts and clear signs) and therefore the clause was not a penalty clause.

 

35. However, there is no such legitimate interest where the landowner is not disadvantaged by the motorists’ stay. As such, I take the point that the parking charge in my case is a penalty, and unenforceable. The absence or concealment of signage and varying acceptability of parking areas are precisely the sorts of 'concealed pitfall or trap' and unsupported penalty that the Supreme Court considered in deciding what constitutes an unconscionable parking charge.

 

36. Even taken as an extreme close-up, the signage on has vague/hidden terms and a mix of small font, so as for it not to allow the opportunity for anyone to become acquainted with its terms. As such, as specifically outlined in Example 10 of Schedule 2 of the Consumer Rights Act 2015, the signage constitutes an unfair customer notice, and, pursuant to s62 of the same act, any terms would be considered incapable of binding any person reading them under common contract law. Consequently, it is my position that, already aware of the signage, no contract to pay an onerous penalty would have been, known or agreed.

 

37. The Supreme Court clarified that ‘the penalty rule is plainly engaged’ in parking cases, which must be determined on their own facts. That 'unique' case met a commercial justification test, given the location and clear signs with the charges in the largest/boldest text. Rather than causing other parking charges to be automatically justified, that case, particularly the brief, conspicuous yellow & black warning signs (Exhibit 00)set a high bar that this Claimant has failed to reach.

 

38. Paraphrasing from the Supreme Court, deterrence is likely to be penal if there is a lack of a 'legitimate interest' in performance extending beyond the prospect of compensation flowing directly from the alleged breach. The intention cannot be to punish a driver, nor to present them with hidden terms, unexpected/cumbersome obligations nor 'concealed pitfalls or traps'. (Exhibit 00) for paragraphs from ParkingEye v Beavis).

 

 

Conclusion

 

39. In conclusion, the evidence shown has proved that the claimant has attempted to abuse their power by placing extortionate penalty fees on residents in which they have no rights over and are unfairly targeting residents to maximize profits. A parking regime may benefit residents allowing them to use their spaces but targeting them to increase profits will put some residents at jeopardy.

 

40. Even through providing evidence of a permit to the claimant, they have showed little to no interest in supporting my rights as a tenant to park on the premises. Instead relying on their own terms which have not proved to overrule any agreement with either the lease or letting agency. 

 

41. Previous judgements in Jopson v Homeguard [2016] and Pace Recovery v Mr N (2016) show further support that this claim should be struck out as they feature similar points to this case. 

 

42. There is now ample evidence to support the view - long held by many District Judges that these are knowingly exaggerated claims. The July 2023 DLUHC IA analysis surely makes that clear because it is now a matter of record that the industry has told the Government that 'debt’ recovery' costs eight times less than they have been claiming in almost every case. 

 

 

 

Costs Assessment

 

Given the significant time and effort required to defend this unjust claim, I respectfully request that the court consider awarding costs under CPR 27.14(2)(g). I have spent considerable time researching, preparing this statement, and attending the hearing. My estimated costs for this are as follows:

 

• Research and preparation of witness statement (8 Hours): £XX

• Travel expenses (Parking and Fuel): £ XX

• Time away from work (8 Hours at £12.50): £100

 

Totalling: £ XX

 

I request that the court considers these costs in its judgment, given the claimant's unreasonable behaviour in pursuing this futile and meritless claim. 

 

Statement of Truth

 

I believe that the facts stated in this witness statement are true. I understand that proceedings for contempt of court may be brought against anyone who makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth.

 

Biscuits101

@Coupon-mad

I hope you are well!

I have a further update as I have received a WS from the claimant. Or rather from a Litigation Manager on behalf of the claimant. 

It discusses what you expect about managing parking on the land and so on. The major point raised is they have now provided the agreement between the landowner and their company. They assert this gives them the right to enforce parking and rely on a decision in One Parking Solution Ltd v Wilshaw. I did ask them to provide this to me before which was ignored. 

They state I failed to provide a copy of the lease agreement, which I did. They also state that I failed to respond to the LOC from DCBLegal, which again I did through email. 

I can post their WS if you like?

Coupon-mad

Yep do show us.

Biscuits101

@Coupon-mad

Here you go...

1.     I am Litigation Manager, employed by Vehicle Control Services Limited (“my Company”). I am duly authorised to make this Statement on my Company’s behalf.  

 

2.     I make this Statement in support of the Claimant’s Claim and in response to the Defence. 

 

3.     The facts and matters set out in this statement are within my own knowledge unless I state otherwise. I believe them to be true. Where I refer to information supplied by others, the source is identified. 

Facts and matters derived from other sources are true to the best of my knowledge and belief. 

 

Parties

 

4.     My Company provides private car park management services to private landowners, to manage the way motorists are permitted to park on their private land. My Company does so by issuing Parking Charges to any vehicle parked in a way the landowner does not permit. 

 

5.     The Defendant is the recipient of Parking Charges issued by my Company. The details are set out herein. 

 

6.     At all material times, my Company was accredited by the Accredited Trade Association (“ATA”) known as the International Parking Community (“IPC”). The IPC has a Code of Practice (“Code”) that its members are expected to adhere to, or otherwise face potential sanctions. My Company operates in accordance with the Code 

 

7.     In order to obtain Registered Keeper details from the Driver and Vehicle Licensing Agency 

(“DVLA”) my Company must be a member of an ATA. It is therefore essential for my Company to comply with the Code. 

 

Background

 

8.     My Company issued Parking Charges (“Charges”) to the Vehicle (“Vehicle”) with details listed below:  

(All five charges are listed here with the reason: Parked Without Displaying A Valid Ticket/permit)

9.     At the time of issue, my Company was instructed by the owner of the Land (“Landowner”) to manage parking on the Land. A copy of my Company’s agreement with the Landowner (“Landowner 

Agreement”) is exhibited to this Statement at “EXHIBIT 1”. 

 

10.     I confirm that the term of the Landowner Agreement has been extended by mutual consent of the parties.  

 

11.   I refer to the decision in One Parking Solution Ltd v Wilshaw [2021] (“Wilshaw”) whereby it was found that it is not necessary for the Claimant to prove the Landowner’s authority to constitute a valid cause of action to recover the Parking Charge, what is required is proof that there is a binding contract between the Claimant and the Defendant. Further, it was found in Wilshaw that the contract between the Claimant and the Freeholder (Landowner) does not affect the validity of any contract between the Claimant and the Defendant.

Contract

 

12.   At the time of issue, my Company was prominently displaying signs on the Land setting out the 

Terms of parking. A copy of the content of the signs is exhibited to this Statement at “EXHIBIT 2”. 

The signs formed the basis of the Contract with the driver (“Contract”). 

 

13.   The following was a term of the Contract: -  

 

“Valid Permit Holders Only” 

 

“A valid parking permit must be displayed inside the front windscreen of the vehicle with all details clearly visible at all times” 

 

14.   In parking the Vehicle on the Land, the driver accepted the Contract, with the license to park being the Consideration. It is evident from the photographic evidence exhibited to this Statement at 

“EXHIBIT 3” that the driver failed to adhere to the terms of the Contract by parking as they did, thus breaching the Contract.  

 

15.   The Contract provides that a charge is payable by the driver upon breach, with payment falling due within 28 days.  

 

16.   A plan of the Land (“Plan”) showing the positioning of the signs is exhibited to this Statement at “EXHIBIT 4”.  

 

17.   Copies of the Notices to Keeper are exhibited to this Witness Statement at “EXHIBIT 5”.  

Defendant’s Liability

 

12.   Pursuant to the Contract; the Driver was liable to pay the Charge within 28 days of issue. 

 

13.   To make the Driver aware, a Privacy Notice was affixed to the Vehicle. The Privacy Notice made the Driver aware of how their personal data may be used and collected. The data collected includes, but is not limited to, specifically recording the details of vehicles registration mark (VRM) or number and may also include images of any person in or exiting from the vehicle. The Notice confirms what my Company’s reasons are for using their data and how my Company ensure that the secure and appropriate steps are taken to protect the data. This policy is also designed to inform the Driver of their specific rights under the current Data Protection Legislation. Exhibited to this statement at “EXHIBIT 3” is photographic evidence of the Privacy Notice affixed to the Vehicle.

 

14.   In order to issue my Company applied to the DVLA for the details of the Registered Keeper and sent Notice to the Keeper compliant with Section 8 of POFA (see “EXHIBIT 5”). Paragraph 1 of POFA states that the Registered Keeper is presumed to be the ‘Keeper’ unless proven otherwise. Paragraph 

4 of POFA gives my Company the right to recover from the ‘Keeper’.  

 

15.   The Defendant does not dispute being the Driver or Keeper of the Vehicle. My Company reasonably believes that the Defendant was the Driver, because they would otherwise have nominated a driver, and therefore the Defendant is pursued on that basis. My Company has complied with POFA and can pursue the Defendant as Keeper in the alternative.