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Messages - b789

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One additional point that POPLA will need to be made aware of is that the photos on the NtK are not time stamped. In other words, they have been altered or cropped. That is a breach of the BPA CoP 21.5a.

The first thing to do is call the CNBC and be prepared to wait, possibly for hours, to get the information as advised. Have the claim number to hand.

Make sure you say on the phone until you’ve received the email from them with the Particulars of Claim and the address it was sent to.

If you can call them at 08:30 you should have less waiting time than later in the day.

Looking at GSV photos of the location from 9 months ago, the driver could not have entered a contract as there are no obvious signs with the contractual terms visible in the car park.

Hopefully, this will be won at POPLA.

Whatever you do, don’t respond to Britannia until you’ve received more advice on here. Any response will be as the keeper, not the driver. They have no idea who was driving.

Whilst they claim to rely on PoFA to be able to hold the keeper liable, they have failed to fully comply with the strict requirements and have failed by omitting a requirement in 9(2)(e)(i).

Also, is the location actually in the port or dock area? If so, it may be land under statutory control which means that they cannot use PoFA to transfer liability from the driver to the keeper.

I was thinking the hearing would be where I make my full defence. This is the same defence I have used throughout the process so far.

I wasn't the driver so my answer would be 'no'.

Hypothetically, what if the judge then asked you “in that case, who was driving?”.

Then as long as you are aware that perjury is a criminal offence you have nothing to worry about. If you, the keeper, were not driving, then your defence will stand and the burden of proof is on VCS to evidence otherwise. They cannot simply assume or infer that you were the driver. They have no other evidence they can use.

Without reading back, has this already been allocated to a court local to you? If so, which court? Some circuits are better than others in the judge bingo game. However, as you were not the driver, you cannot be liable and the judge should dismiss the claim. You should also be aware that you can claim some limited costs such as transport and parking plus up to £95 for loss of earnings on the day of the hearing. If you can persuade the judge that the claimant has acted unreasonably by vexatiously pursuing the claim when they knew they had no right to peruse you as the keeper and no evidence to prove you were the driver, a judge can award costs in ecxcess of the small claims limits.

You can only expand on your defence when you submit your witness statement. You cannot add any new evidence in your witness statement.

If you’d waited and shown us your defence before you rushed in and submitted it, we would have provided you a Template that stretches to around 40 paragraphs. It would have been submitted as a PDF attachment to an email to the CNBC, not sent by post.

A defence is supposed to be written in the third person. Some judges may hold that against you although it is to be expected where a litigant in person with no experience has submitted it. It shows the claimant that you are unsure about your defence. Hopefully, if you follow advice here and don’t rush in and do anything else without consulting us here, there is a chance of salvaging this.

Why didn’t you come here for advice on what to put in and how to file your defence? That is a poorly executed defence and has left out a multitude of other arguments.

It is better than nothing. If it ever reaches a hearing before a judge, what will your answer be if the judge asks you directly “were you the driver”?

In your “defence”, you state that the alleged debt is disputed and will be vigorously “defended”. Can you see an anomaly here? Stating that you will “vigorously defend” and then not actually “defend” anything is just plain going to show the claimant than you have no real understanding of what you have put in your defence.

Unfortunately, with the defence you have submitted, it is more likely than not going to go all the way to a hearing. I’ll come back when I see what your answer is to the above.

As above, your friend has not received a “fine”. It is a speculative invoice from an unregulated private parking company for an alleged breach of contract.

Hopefully, no contact or appeal has been made yet. If so, this is easily dealt with and she won’t be paying a penny to Horizon.

Without seeing the back of the NtK, I am fairly confident that thy are not relying on the provisions of PoFA 2012 to hold the keeper liable. Only the driver is liable and Horizon have no idea of the drivers identity unless your friend reveals it to them. She must not do so. Any appeal/response is only as the keeper. There is no legal obligation for the keeper to identify the driver.

Unfortunately, it’s too late to appeal but you can still try. The may or may not accept it. If they don’t, then you complain instead.

For now, a PCN appeal stating the following:

“I appeal as the registered keeper. I am not obliged to identify the driver and decline to do so. You cannot transfer the driver’s liability (if any) to me as you have not served me with a notice to keeper that complies with Schedule 4 to the Protection of Freedoms Act 2012 (PoFA) and it is now too late to do so.

I require you to cancel the parking charge and remove my personal information from your database or else issue me with a POPLA code where we both know you will withdraw or lose.”

It’s not worth spending much effort on this as, ultimately, your friend cannot be liable as long as she does not identify the driver. The driver and the keeper are separate entities in law and, as mentioned, there is no legal obligation for the keeper to identify the driver.

If Horizon reject the appeal due to the deadline being missed, the n the above without the POPLA code request (no obligation from them due to appeal deadline being missed) as a complaint should be enough to give them the heads-up that they are not dealing with low-hanging fruit on the gullible tree and they are wasting their time if they persist.

Private parking tickets / Re: Parking charge notice to keeper
« on: May 21, 2024, 10:22:07 am »
OP, you have to understand why @DWMB2 mentioned PoFA. PoFA was introduced because unregulated private parking companies don’t know the drivers identity. The driver is always the person liable for a parking charge if the terms have allegedly been breached.

Because they don’t know the identity of the driver, as long as they comply with the strict requirements of PoFA, they can transfer that driver liability to the keeper. They get the keeper details from the DVLA.

In the NtK you have shown us, NCP have not fully complied with the strict requirements of PoFA and so, cannot hold you liable as the keeper. The driver is still liable but they have no idea who that is… unless you tell them. You are under no legal obligation to tell an unregulated private parking company the identity of the driver.

Had you appealed at the time, saying “I am the keeper and I am under no obligation identify the driver and I will not be doing so. Your NtK does not comply with the strict requirements of PoFA 2012 and so you cannot hold me liable for the charge. I suggest you save us both a waste of time and either cancel the PCN or issue me with a POPLA code where we both know you will lose or withdraw.”

Whilst it is too late appeal because of your delay, as already suggested, a complaint (not an appeal)to them along the lines of the wording above, letting them know that you are not low-hanging fruit on the gullible tree and that they should stop wasting everybody’s time and just cancel the PCN, may have the desired effect. Their response will be interesting.

If they don’t cancel, then you’ll just have to weather the inevitable storm of final reminders and useless debt collector letters. If/when they decide to try and claim through the courts (doubtful) then come back and you will easily see them off with a robust defence that will be provided.

When you say you “ignored” previous letters, are you sure that you did not receive either a Letter of Claim or an N1SDT Claim form from the CNBC?

It is unusual to receive all PCN and debt demand correspondence but then not to receive both an LoC and a Claim form. You need to call the CNBC and get them to email you the details of the claim to include the claim number, the address it was sent to and the Particulars of Claim.

If the claim was issued correctly to your current address, you have very little chance to recover the funds that you are now intending to pay to prevent the CCJ from remaining on your credit record. Is there any possibility that the PPC hold two addresses for you? Did you ever move and fail to update the address on your V5C logbook?

You do not “just fill out a form” to file for a set aside. If the claim was sent to your correct address, how are you going to evidence that you never received it?. If you can evidence that it was either sent to an old or the wrong address, then you have grounds for a mandatory set aside under CPR13.2.

If you can convince a judge that you never received a claim form even though it was sent to the correct address, a set aside under CPR13.2 would be possible but good luck in proving you never received it. The only other option would be to request a set aside under CPR13.3 which is discretionary. For example, if you believe you had a good chance of successfully defending the claim.

It will cost £303 to apply for a set aside unless you could convince the claimant to agree to an uncontested one which would cost only £119, assuming they can be bothered to assist you once they’ve received the claim money from you.

You’re just going to have to weather this and the upcoming debt collector letters from DCBLtd. If/when you receive a Letter of Claim from DCB Legal, come back for your next step.

You can safely ignore all final reminders and debt collection letters. Just file them away.

What about the company they appoint as their agent to manage it?

So, have you made any effort find out who does own the land? If it is a car park serving multiple businesses or shops then there may be an advertising plinth which would include the name of the management company. Just because Costa don't own the car park, somebody must.

So, you have some points to use in your POPLA appeal. You only have to win on a single point, CE have to successfully rebut all your points to succeed.

There is nothing to stop them providing that evidence to POPLA. You will be given an opportunity to review their evidence and make a further submission before the POPLA assessment is made.

They are not compelled to provide that evidence until a POPLA appeal. Even then, they can decide not to continue with POPLA and cancel the PCN.

You entered private land. There was a sign at the entrance that told you it was private land. Ignorance of the law is not an excuse. If you were on private land, you were responsible, as the driver, to find and read any signs that contained the terms for parking on that private land. Whether you did or did not is irrelevant.

Any defence will have to be on whether the signs complied with the rules in Civil Enforcements AOS, the BPA, CoP.Feel free to have a read and find out whether you think their signs fully comply with the requirements:

BPA Approved Operator Code of Practice

If you think there are any rules they have breached, please point them out.

By remaining on the private land, beyond any "consideration period", you are deemed to have accepted the contract by conduct, whether you read the terms or not.

POPLA will not consider any mitigation. They will only consider points of law and the BPA CoP. You have signs and contracts in your quiver.

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