The PCN is not PoFA 2012 compliant as it was not "given" within the "relevant period". Therefore, there is no Keeper liability. As there is no legal obligation on the Keeper to identify the driver to an unregulated private parking firm, or anyone else, including the court, the burden of proof is on the claimant to prove that the person they are pursuing is the liable party. The only way they could do that, is if the defendant tells them that they are the liable party. Why would you do that?
I suggest you now respond to the reply given by BW Legal with the following:
Dear Sirs,
Your Letter Before Claim contains insufficient detail of the claim and fails to provide copies of the evidence your client places reliance upon. It is therefore in breach of the Pre-Action Protocol for Debt Claims.
I am the registered keeper of the vehicle. I am not obliged to identify the driver and decline to do so. There is no legal presumption in law that the keeper of a vehicle was its driver on any given occasion. Your client cannot pursue me as driver, as per VCS v Edward (2023) [H0KF6C9C].
If your client is seeking to rely on Schedule 4 of the Protection of Freedoms Act 2012 (PoFA) to hold me liable as keeper, they are unable to do so. The Notice to Keeper (NtK) was issued on Wednesday 8th February 2023, relating to an alleged contravention on Sunday 22nd January 2023. According to paragraph 9(5) of Schedule 4, the NtK must be “given” to the keeper within 14 days. Paragraph 9(6) deems the date of “giving” to be two working days after posting, which in this case would be Friday 10th February 2023 — 19 days after the event. Your client is therefore out of time to claim keeper liability under PoFA.
As such, your client cannot pursue me as either the driver or the keeper. To issue a claim in these circumstances would constitute an abuse of process, and I will defend it vigorously. If proceedings are issued, I will also seek costs for unreasonable conduct under CPR 27.14(2)(g).
Furthermore, your letter fails to comply with the requirements of the Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(d), 5.1 and 5.2), as well as the Practice Direction – Pre-Action Conduct (paragraphs 6(a) and 6(c)). Accordingly, this is a formal request under both instruments for the following information/documents:
1. An explanation of the cause of action
2. Whether you are pursuing me as driver or keeper
3. Whether you are relying on the provisions of Schedule 4 of PoFA 2012
4. The details of the claim: how long the vehicle was parked, how the amount claimed was calculated
5. If for contractual breach: the date of the alleged agreement, the parties to it, and a copy of the alleged contract
6. Photographic evidence showing the vehicle parked in breach of the alleged contract
7. If for trespass, provide details
8. A copy of the contract with the landowner authorising enforcement, as required by the BPA/IPC Code of Practice
9. A site plan showing where signage is displayed
10. Photographs of the signage (showing size, font, positioning, and height) as they were on the date of alleged contravention
11. Full details of the original charge, and any interest or additional costs
12. Clarification of the £70 ‘debt recovery’ fee: is this net or inclusive of VAT? If the latter, why is the consumer being charged the operator’s VAT?
13. For the £100 principal charge: is this pleaded as consideration for parking or as damages? Please clarify.
You are bound by the same obligations under the Practice Direction and the Protocol as any other litigant. Until your client complies and provides the necessary information, it would be premature and improper to proceed. Should a claim be issued, I will seek an immediate stay and an order compelling compliance.
I trust your client will take the appropriate hint.
Yours faithfully, [Your Name]