Yet another UKPC DCB Legal Claim

TheWheelsOnTheBus

So the N1STD has arrived.

I understand that I need to log on to moneyclaim.gov.uk and complete the form, saying that I dispute the claim. I intent to submit (roughly) the following as the defence - any comments or further suggestions? 

Thanks again for your help & support.

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Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid.
Paragraph 9(2)(i) prescribes that a NTK 'must' include the actual date sent or date given. The NTK I received has neither. The ‘date issued' on the tearoff slip of the NTK is administrative; if it was the required date sent or date given then it would state this explicitly and include this within the main body of the NTK.

Paragraphs 9(4)(b) and 9(5) of the Act stipulate that the NTK must be delivered within a period of 14 days. 

The NTK arrived two days after the 14 days allowed by paragraph 9(5). The claimant was informed on the day that the NTK arrived that it was non-compliant with the Act. No proof was subsequently provided by the claimant of the date that the NTK had entered the postal system.

I therefore submit that the above failures in this Notice to Keeper make it non-compliant under the POFA 2012, Schedule 4 paragraph 9, and that I am not liable for any part of this claim.

kryten3000

You should add the rest of the paragraphs in the template defence as well, don't just rely on keeper liability.

Using the template sends a message to DCB Legal that you are getting help here and will increase the chances of a discontinuation (which are already high).

Le_Kirk

The NTK I received has neither.

Defences are written in the third person,so "the NTK the defendant received has neither"

Coupon-mad

The claim will end up discontinued before the hearing this year. Just play the game:

Follow the easy 8 steps covered in the Template Defence sticky thread.

No link is needed to that Announcement, or to the NEWBIES FAQS thread - which you must also read post 2 of, especially the red heading IMPORTANT: KNOW WHAT HAPPENS WHEN'. It is very easy.

See my signature below if you need a steer about how to hop straight to page one. This could not be easier once you bookmark the Template Defence thread to follow the 8 steps.

We don't want to know about DCB Legal's reply to your defence, nor the DQ, nor questions about Mediation (all are covered).

What we do collect are pictures of the Notices of Discontinuance for Umkomaas' thread, so we'll see you again in the Summer/Autumn when you strut proudly back here with your win!

doubledotcom

Coming back to the original question posed in this thread and the OPs assumption that because they cannot prove the date of delivery of the Notice to Keeper (NtK), they have failed to take into account the rebuttable presumption of delivery.

Paragraphs 8(6) and 9(6) of Schedule 4 to the Protection of Freedoms Act 2012 (PoFA) establish a rebuttable presumption, not a deemed fact. A notice sent by post is presumed to have been delivered on the second working day after posting unless the contrary is proved. Crucially, the presumption is expressly conditional: it only operates in the absence of contrary evidence.

In practice, operators often proceed on the assumption that a NtK was posted on the date shown on the notice, even where that date is merely described as an “issue date” or similar. That assumption may be administratively convenient, but it has no statutory force. PoFA does not state that a notice is deemed to have been posted on the date it bears, nor does it permit the operator to rely on an inference without proof once the presumption is challenged.

Where a Keeper puts the operator to strict proof of posting, they are not required to prove late delivery. Instead, they are expressly “proving the contrary” for the purposes of PoFA paragraph 8(6) or 9(6) by disputing the factual basis on which the presumption operates. Once the presumption is challenged, it falls away unless and until the operator can establish the facts necessary to revive it. At that point, the evidential burden lies squarely with the operator to show when the notice was actually posted and that it was properly addressed and sent by a method consistent with delivery within one to two working days.

This is entirely consistent with general principles of statutory presumptions and with the Interpretation Act 1978, which similarly presumes service only where a document is shown to have been properly addressed, prepaid, and posted. The Keeper cannot reasonably be expected to prove a negative (the absence of timely posting), nor to prove the internal postal practices of a private company or its mail consolidator. Those matters are peculiarly within the operator’s knowledge and control.

The significance of this is recognised explicitly in the Private Parking Single Code of Practice (PPSCoP). Section 8.1.2(e), Note 2, does not restate PoFA gratuitously; it explains its practical consequence. Operators are required to retain a record of the actual date of posting, not merely the date a notice was generated or printed. The reference to third-party mail consolidators is particularly telling: it acknowledges that generation, handover, and entry into the postal system may occur on different dates, and that only the latter engages the statutory presumption.

If the presumption could not be challenged except by proof of late receipt, Note 2 would be redundant. Its inclusion makes clear that the correct analysis is evidential, not experiential. Once the Keeper disputes posting, the operator must prove it. Absent such proof, the presumption of delivery never arises, and the operator cannot rely on deemed service to establish compliance with PoFA’s strict time limits.

In short, “the contrary” need not be proof of late delivery. It is sufficient for the Keeper to dispute the assumed date of posting and require strict proof. From that point onward, PoFA places the onus back where it belongs: on the operator to prove that the notice was in fact posted, and posted when they say it was.

TheWheelsOnTheBus

Many thanks, doubledotcom - a fascinating aspect that I had no idea about. Not sure yet how I'll shoehorn it into the MCOL defense, but will certainly mention it!

Le_Kirk

Maybe just mention it briefly (dispute date of posting) and then follow it up with @doubledotcom's piece in the witness statement.

doubledotcom

You only need a "hook" in the defence so that you can later hang the argument on. Something along these lines in the defence should suffice:

The Defendant puts the Claimant to strict proof of the date of posting and method of service of the Notice to Keeper. The Defendant disputes that the statutory presumption of delivery under Schedule 4, paragraph 8(6)/9(6) of the Protection of Freedoms Act 2012 is engaged absent proof that the notice was posted in time to be “given” within the relevant period.

TheWheelsOnTheBus

Many thanks to all of you for your help.

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For the record (in case anyone in a similar situation searches here later) I intend to submit the following paragraphs within the Defence template:

3. Schedule 4 paragraph 9 of the Protection of Freedoms Act stipulates that some mandatory information must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid. Paragraph 9(2)(i) prescribes that a Notice to Keeper must include the actual date sent or date given. The Notice to Keeper that the Defendant received has neither. The ‘date issued' on the tear-off slip of the Notice to Keeper is administrative; if it was the required date sent or date given then it would state this explicitly and include this within the main body of the Notice to Keeper. The Notice to Keeper is thereby invalidated.

4. Paragraphs 9(4)(b) and 9(5) of the Act stipulate that the Notice to Keeper must be delivered within a period of 14 days. The Notice to Keeper was delivered two days after the 14 day period allowed by paragraph 9(5). The Defendant puts the Claimant to strict proof of the date of posting and method of service of the Notice to Keeper. The Defendant disputes that the statutory presumption of delivery under Schedule 4, paragraph 9(6) of the Protection of Freedoms Act 2012 is engaged absent proof that the notice was posted in time and sent by a method consistent with delivery within one to two working days to be “given” within the relevant period.

Coupon-mad

If it doesn't all fit, then you can prune or remove the final paragraph of the template.