IMO, it's much more fundamental.It's not merely "dressed up in PoFA-like references" - the NTK includes
If a creditor reasonably believes that the keeper was the driver when they start to pursue the alleged debt then it's an abuse of process to issue a spurious PCN addressed to the keeper dressed up in PoFA-like references,
The underlying contract was formed by the driver, whoever that may be.The driver disputes the existence of an underlying contract.
There could be a good reason why the keeper would not identify the driver even if it were not them.Indeed, but that isn't what I was saying.
Their logic here is usually that if the keeper was not the driver, he would have said so, as this would strengthen his case considerably, and so the fact he has not implies that he was in fact the driver.There could be a good reason why the keeper would not identify the driver even if it were not them.
Have BWL issued a letter of claim or acting as mere debt collectors (as seems likely), if the latter then why are you wasting breath on them, they don't know any facts and will just say anything in the hope you'll pay.Except they do know the facts, as I've sent them a copy of the DVLA letter.
One wonders then what was ever the point of Schedule 4 of PoFA if they can just initiate proceedings against the keeper and succeed in court because on the balance of probabilities the keeper would have been the driver.Because if the keeper was not the driver they can still hold them liable if they comply, S4 was never about providing some form of a technical defence to the driver which, to be honest, is what you seem to be seeking. Keepers were taken to court before PoFA anyway.
One wonders then what was ever the point of Schedule 4 of PoFA if they can just initiate proceedings against the keeper and succeed in court because on the balance of probabilities the keeper would have been the driver.One of the other Schedules of PoFA outlawed clamping on private land (finally!) - as an alternative to holding someone's car to ransom, Schedule 4 provided a mechanism to prevent those in receipt of a parking charge simply ignoring it, or saying "wasn't me driving guv'", and there being no mechanism to then recover the charge.
This isn't a criminal matter its civil, the law permits them to ask you and if your there as a witness to answer, even if you aren't acting as a witness they can still ask you. This is about determining liability fairly, not hiding behind legal skirts.Probably none. But why does it matter?It matters hugely if a court may or may not compel me to do something which no law permits them to do.
Probably none. But why does it matter?It matters hugely if a court may or may not compel me to do something which no law permits them to do.
I think the judge can probably ask whatever they like. I believe it has been asked.And if when asked I ask if there is a law which compels me to answer?
Your timeline..I appealed to both the alleged creditor and the IAS within the timescales for those appeals.
...03/05/23 NTK issued
After which you don't seem to have engaged with the creditor within their stipulated timeframes.
Is this correct?
In which case either:I don't have any, I can't speak for others.
1. You will bluff the creditor out of initiating legal proceedings because of their apparent failure, or
2. They will press on to court.
As regards 1, who's to know? If you could give them any case law which showed that if they did not obtain the keeper's details from DVLA then a court would find in your favour, fine. Do you have this? Does anybody?
As regards 2, what would a judge find? Yes, in theory the claimant should have used DVLA data, buy IMO they could take a more purposive approach to their interpretation and application of PoFA and conclude that the purpose of the DVLA provision is simply to ensure that the correct person is issued with a NTK and that because you had already admitted that you were the keeper(although we haven't seen the exact text) then them not contacting DVLA would not deny them the opportunity to pursue you as keeper given that you'd already claimed to be as much.So you're suggesting that someone could go to court and claim that they had a right to recover a debt from me because of an Act which says that they have such a right even though the Act says that they only have that right if they obtained my details from the Secretary of State, and they did not obtain my details in that way because what they did was good enough? That essentially the provisions in the Act did not apply to them because I'd appealed against the PCN?
If it hasn't gone to popla/ipc, and the driver hasn't been outed then not doing a DVLA request surely means they have not complied with POFA and that might (should) get a cancellation at that point.Driver has not been "outed".
If it isn't and it goes to court and the question is asked unless the answer can be no that is unhelpful.What question, and what's unhelpful about an answer other than 'no'?
Presumably they are using keeper details which were provided by the OP in the original challenge of the windscreen ticket.That's my assumption.
What difference do you think it would make if they accepted it?The difference that a solicitor should advise his client that continuing to claim he has done something which he demonstrably has not will not go down well in court.
Have BWL issued a letter of claimNo.
or acting as mere debt collectors (as seems likely), if the latter then why are you wasting breath on them, they don't know any facts and will just say anything in the hope you'll pay.I'd hope that common sense would prevail, and that them knowing the facts, attested to by the DVLA, would make them and the parking company give up this nonsense of pursuing me as keeper on the basis of a "right" which they failed to establish by failing to follow the legal process.