OK whats my next move?

nosferatu1001 · 20 November 2018 at 12:14PM

17.2 - yes, they can atempt recover these charges as costs of a court claim. I would remove that

You have signage again at 15, after your other section on signage. I would keep it together.

18 - why is this not way further up the list, bfore signage?
Think about it logivcally
They have no standing
Even if they had standing, they havent chosen to use POFA to hold the D liable
Even if they had chosen to use POFA, they havent complied with its strict requirements
Even if they had met POFA liability, there isno liability on anyone becuase....

sparkyhx · 20 November 2018 at 4:39PM

@Nosferatu1001 I've moved 18 higher, but not to the top as I think the signage stuff is still a slam dunk. The PoFA now comes next basically just in case the dreaded 'were you the driver' question is asked by the Judge. that way if that argument gets blown out the water, wed have already presented the 'best' one.

which is where the last few pages of the post have been about - use POFA and risk the question and shoot the case in its foot as per Stevey (which is the same car park, probably the same court and maybe even same Judge). IAMERASMUS suggests don't bother with POFA if worried while COUPON-MAD suggests go for it.

I will send the final version tonite unless there are any more comments in the meantime

sparkyhx · 20 November 2018 at 10:14PM

ok, looks like its going in. Thanks to all contributors - no doubt I will be back soon in prepping for count, unless they throw in the towel...………...I can only hope

KeithP · 20 November 2018 at 10:22PM

When you are happy with the content, your Defence should be filed via email as suggested here:

Sign it and date it.
Scan the signed document back in and save it as a pdf.
Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.

sparkyhx · 26 November 2018 at 6:13PM

Still a bit lost by the POFA thing, sorry its just not going in. I get that if the PCN is NOT POFA compliant they cannot assume Keeper is liable.

But what is 'wrong' with the following PCN? Are my observations correct?

POFA says
A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle (YES), the relevant land on which it was parked (YES) and the period of parking to which the notice relates; (DEBATABLE cos it covers the total period on land, not the 'grace period' before we bought a ticket
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full; (I think so)
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable; (I think so - although signage is debatable)
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and (I think so, BUT does the amount we did pay need to be deducted?)
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(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—(doesnt say in those words although it is implied by asking?)
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver; (YES)
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (NO - is this the killer?) it does warn 'may pursue keeper' but no mention of 28 days
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made; NO Creditor is identified - is 'implied' good enough?
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).
(3)The notice must relate only to a single period of parking specified under sub-paragraph (2)(a) (but this does not prevent the giving of separate notices which each specify different parts of a single period of parking).
(4)The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. (Yes it was)
(5)The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
(7)When the notice is given it must be accompanied by any evidence prescribed under paragraph 10. (Just photos of entry and exit - no details of how long the 'grace period' was exceeded before purchasing a valid ticket)
(8)In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and (IPC details supplied)
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration. IPC details supplied

sparkyhx · 26 November 2018 at 6:20PM

https://1drv.ms/u/s!AmsYPy-wgDI5838YYOWPKiQWJAJW

sparkyhx · 27 November 2018 at 12:02AM

Sorry guys, been blocked for some reason, trying to sort it out. Might be cos of the way I tried to post the NTK, I may have broken some rule unintentionally

Redx · 27 November 2018 at 12:04AM

MSE has anti spam filters and various things that you can try to do can trigger an IP ban , especially copying and pasting etc

this is well documented in other parts of the forum

Coupon-mad · 27 November 2018 at 12:09AM

That is a non POFA PCN.

(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—(doesnt say in those words although it is implied by asking?)

No, it isn't implied by asking. Albeit the killer is:

(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (NO - is this the killer?) it does warn 'may pursue keeper' but no mention of 28 days

You've missed the vital observation that the only way they say they will continue to pursue the keeper is 'on the assumption the keeper was the driver'.

That is the antithesis of what Schedule 4 of the POFA is all about!

sparkyhx · 29 November 2018 at 3:56PM

ok, i'm back on after 2 days of attempting and failing to unblock me, I got my ISP to change my IP -

Thanks Coupon mad, that's helpful.

I've tried several searches but don't seem to get an answer :-
The guidelines are there and seem fairly clear, why don't the parking companies fix the NTK's to make them POFA compliant? It seems bizarre they deliberately don't follow process and continue to not follow process, surely it would be easy to correct them and remove the defence

Or am I missing something?
I got the claimants Directions Questionnaire and request to go 'on paper' by email. I am still waiting for the postal copy for me to reply.

However, in the meantime

I acknowledge your request, but will be strongly objecting to a decision on papers and be requesting an Oral Hearing.

You can of course minimise your costs by stopping this pointless exercise. We both know you will lose in court and be forced to pay costs, you and your predecessors obviously haven’t read the defence otherwise it would not have reached this far. You are just going through the motions of the next step of a robo-flowchart.

I will give you this final opportunity now to stop this, if you choose not to, then please be aware I have every intention of taking this all the way and I will no doubt see you (well, your representative) in court.

............I can hope

Regards

OK whats my next move?

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