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NCP ANPR ticket - driver not identified
MickW
post Sun, 30 Dec 2018 - 13:56
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Hello

Looking for some assistance here. My vehicle was recently driven into an NCP car park, and was photographed on entry and again on leaving after spending just under 20 minutes in the car park. The driver apparently forgot/failed for some other reason to purchase a ticket. I have received all of the usual correspondence and have written to them stating that I am not in a position to identify the driver at the material time as I cannot remember who it was that was driving the car on that particular day, and judging by the photographic evidence they have provided, neither are they (it was an ANPR ticket). I also told them that I made a request for a POPLA code at that time but received no response.

I have now received a letter before claim from their debt collector (BW Legal), and contacted NCP again pointing out all of the above and again requesting POPLA code, which they are now refusing to provide on the grounds that it’s ‘too late’ and they are directing me back to the debt collector.. I haven’t corresponded with them yet, but realise that the clock is ticking.

I have contacted NCP once more stating that my request for a POPLA code is still valid, as there is nothing whatsoever to prevent them from considering a challenge at any stage. I am also saying that refusing access to their alternative dispute resolution procedure on these grounds would be unreasonable and a breach of the Civil Procedure Rules.

I have made an SAR asking for all correspondence in relation to this matter, but they have not fully complied, only sending me a copy of their 'final reminder' document which shows their 'photographic evidence' which, as stated, only shows the bottom half of the front and rear of the car entering and leaving the car park and does not show who was driving. I have requested that they fully comply with the SAR by providing me with copies of the NTK, PCN and any other relevant documents and I will update this thread once I receive a response to these latest requests.

Ultimately I am basing my appeal on the fact that they have failed to identify the driver of the vehicle at the material time, and cannot hold the registered keeper of the vehicle liable for a contravention that was carried out by an unidentified person. I am not legally responsible for the actions of the person driving the vehicle, and they could not legally oblige me to provide them with the identity of the driver, even if I were in a position to do so.

Not too sure how strong this defence would be in court so that’s one thing I could do with some advice upon – something to do with whether POFA applies(?) and I am not sure whether it does in this instance.

I realise I may be skating on thin ice but any input would be gratefully received.

Thanks for any advice you may be able to give.


M

This post has been edited by MickW: Sun, 30 Dec 2018 - 14:17
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post Sun, 30 Dec 2018 - 13:56
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MickW
post Sat, 16 Feb 2019 - 10:47
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Hi

Just drafted this defence - would be grateful if you could let me have your thoughts/suggestions:

I am defending this claim on the following grounds:

The Claimants solicitors have failed to follow Pre-Action Protocols

The Defendant is not liable as the Claimant has confirmed they did not issue a Notice to Keeper. Without a Notice to Keeper no liability can be transferred to the keeper under the POFA 2012 which sets out the conditions that must be met for Keeper Liability to Apply, specifically Section 2, paragraph 7, which states that

A Notice to Keeper must be served not later than 14 days after the vehicle was parked.

The failure of the Claimants to issue a Notice to Keeper and/or a Penalty Charge Notice is confirmed through a DPA 2018 Subject Access Request responded to on 28th December 2018.

The PoC are misleading the court, as no PCN was issued to the Defendant.


Thanks in advance

MW

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Redivi
post Sat, 16 Feb 2019 - 11:03
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Your priority, if you haven't done so is to acknowledge service
You do not dispute jurisdiction
You dispute the entire claim
Do not put anything at all in the defence box

This gives an extra 14 days to submit your defence that needs a lot of fleshing out

Do not use the term PCN
Use the official name : Notice to Keeper

I don't like single point defences

A judge should find that it was never served and therefore the claim fails completely
You haven't however used this as a defence point
You've only said that this failure means that NCP can't recover payment as the keeper

This leaves it open for the judge to decide that you were more likely than not the driver

With no other reasons why NCP isn't entitled to payment, you lose

This post has been edited by Redivi: Sat, 16 Feb 2019 - 11:05
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MickW
post Sat, 16 Feb 2019 - 11:44
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Thanks Redivi

I will be sending the letter to acknowledge service today

Any suggestions in the meantime as to how best to frame my defence will be gratefully received

All the best

MW
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Redivi
post Sat, 16 Feb 2019 - 11:49
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Acknowledge it online
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nosferatu1001
post Sat, 16 Feb 2019 - 12:16
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Acknowledge online
Do not start the defence
Read other threads, is the obvious answer. Standing and signage are always challenged.
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MickW
post Sat, 16 Feb 2019 - 13:06
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Thanks for the advice - have now acknowledged service online

I do have a question which I would not want to publish on the forum in case it is used against me should the case come to court (I've read that it's safe to assume that they do read these threads). I have tried to PM some of the members who have kindly assisted so far, but their inboxes are full. Could anyone please suggest a way that I could do this?

This post has been edited by MickW: Sat, 16 Feb 2019 - 13:20
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ostell
post Sat, 16 Feb 2019 - 13:15
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Inboxes are left full otherwise the regulars are inundated with messages.

Ask the question. As long as you don't identify the driver then they are going to see everything soon.
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MickW
post Sat, 16 Feb 2019 - 15:41
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Okay well I may have given the impression that the NtK and or PCN were sent as I made a comment about receiving 'all the usual documents' in my initial post, and then going on to say that I told them that I had requested a POPLA code (I didn't!) If my defence is based on the fact that their SAR response shows that they had not issued either of these documents, I'm not exactly helping myself by giving the impression that I may have received one or the other or both. I honestly can't remember what they sent me although it might well be just the final reminder, which was the only thing they were able to provide a copy of in their SAR response. I'm probably overthinking this anyway, as they haven't complied in any way with PAP so wouldn't be able to bring this up in their evidence would they?

Could anyone point me in the direction of previous posts that may be of relevance/interest - have tried looking but as I'm not familiar with the layout of the website I'm finding it a bit like looking for the proverbial needle in a haystack!

Thanks again

MW

This post has been edited by MickW: Sat, 16 Feb 2019 - 15:44
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nosferatu1001
post Sun, 17 Feb 2019 - 19:18
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Of course they could still bring it up. The pap being followed or not doesn't alter what they can submit in their bundle. It's then up to the court to deal with.

Use the forum search. By post, restrict to 2018 onwards
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MickW
post Tue, 26 Feb 2019 - 10:55
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Hi all

Have acknowledged service but still waiting to hear from BW Legal - how much time do they have before they have to send their bundle? Just don't want to be left with too little time to organise a defence...

Thanks

MW
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nosferatu1001
post Tue, 26 Feb 2019 - 12:03
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Why are you waiting?!?!

Get on with it now
You have to have already found probably 10 or so defences that you can crib from!

YOU CANNOT ASSUME BW LEGAL WILL COOPERATE
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Ollyfrog
post Tue, 26 Feb 2019 - 12:06
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They won't send you anything yet - your defence is next to happen. Here read this, bookmark it, make sure you understand.

https://forums.moneysavingexpert.com/showth...27#post72244727
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MickW
post Wed, 27 Feb 2019 - 12:32
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Hi all - thanks for the heads up.

I have drafted this defence and imagine it may need some tweaking but would appreciate any comments/advice that you could offer:

The Defendant denies liability for the entirety of the claim for the following reasons.

The claim was issued prematurely, during pre-action exchange of information and with disregard for the Pre Action Protocol (PAP) by the Claimant’s failure, despite numerous requests by the Defendant, to address the fact that their client’s response to my DPA 2018 Subject Access Request (SAR) on 28th December 2018 establishes that either;
(a). they did not issue a Notice to Keeper, or
(b). they failed to comply fully with said SAR despite being under a legal obligation to do so under the Data Protection Act 2018, which would be a criminal offence and would put the Claimant in breach of the PAP.

As the Defendants continue to ignore their obligations under the PAP and continue with court action the Defendant requests a strike out, as the claim has been brought prematurely when the Claimant was fully aware of the critical flaw in their case arising from their client's response to the SAR.

The Claimant’s assertion that my request for information from their client through my SAR does not affect the validity of their client’s claim, and that their client has an overriding legitimate interest to recover the sums (allegedly) due to them is incorrect. Their client’s failure to issue a Notice to Keeper is confirmed by their response to the SAR and therefore the claim fails completely.

The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant asserts that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 (POFA). However, before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must have fully complied with the relevant statutory requirements, and followed the required deadlines and wording as described in the Act to transfer liability from the driver to the keeper which, by their failure to send a Notice to Keeper, they have failed to do. Only the driver of the vehicle on the date in question could have entered into a contract with the Claimant, but the identity of the driver of the vehicle on such date has not been ascertained. The Claimant is therefore put to strict proof.

The Claimant has provided no evidence (in pre-action correspondence or otherwise) that their clients, who are operating parking management activities on land which is not owned by them, are entitled to recover parking charges. They must provide written authority from the land owner sufficient to establish their right as the Creditor, within the meaning of the POFA (where applicable) and to establish their client as having an entitlement to recover parking charges in any event. There is no prescribed form for such agreement and it need not necessarily be as part of a contract, but it must include the express ability for an operator to recover parking charges on the landowner's behalf or provide sufficient right to occupy the land in question.


That's it so far - I could look into signage at the site but this would involve a fairly lengthy journey as the car park is quite a distance from me but I'm quite willing to do so if necessary.

Thanks in advance

MW

This post has been edited by MickW: Wed, 27 Feb 2019 - 12:33
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nosferatu1001
post Wed, 27 Feb 2019 - 12:37
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This isnt a defence, this is more like a witness statement

Have you looked at the example MSE forum defence - in the link given to you above - on how
1) a defence is laid out (numbers!)
2) how a defence is WRITTEN - as a series of *legal arguments*

IF you aver the signage is insufficient it forces them to prove what the signs are like.
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MickW
post Wed, 27 Feb 2019 - 16:27
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Okay I have dug a little deeper and found a defence on the MSE site that I think fits quite well with a few adjustments - what do you think?


1. The claim was issued prematurely, during pre-action exchange of information and with disregard for the Pre Action Protocol by the Claimant. The Defendant further notes the Claimant's and their client’s failure to engage in pre-action correspondence in accordance with the pre-action protocol and with the express aim of avoiding contested litigation, in particular by their client's refusal to issue a POPLA code as requested by the Defendant on [date]

2) It is admitted that at the material time the Defendant was the registered keeper of vehicle registration mark XXZZZ which is the subject of these proceedings. The vehicle was insured with [provider] with 2 named drivers permitted to use it, so the claimant cannot assume the driver and keeper were one and the same at the time of the alleged contravention Reference POFA 2012

3) It is admitted that on [date] the Defendant's vehicle was parked at [location]

4) Unclear and non-compliant signage, forming no contract with drivers.

5. The failure of their client to issue a Notice to Keeper (NtK) as evidenced by their response to the Defendant's DPA 2018 Subject Access Request (SAR) on 28th December 2018 constitutes a failure to conform to the requirements of POFA. and therefore the Claimant does not have the right to pursue the registered keeper for this alleged contravention
5.1. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver. The Defendant avers that the Claimant is therefore limited to pursuing the Defendant in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA")
5.2. Before seeking to rely on the keeper liability provisions of Schedule 4 POFA the Claimant must demonstrate that:
5.2.1. there was a 'relevant obligation'; either by way of a breach of contract, trespass or other tort; and
5.2.2. that it has followed the required deadlines and wording as described in the Act to transfer liability from the driver to the registered keeper. It is not admitted that the Claimant has complied with the relevant statutory requirements. It is not admitted that the Defendant was the driver of the vehicle. The Claimant is put to strict proof.

6. The Particulars of Claim lack specificity and are embarrassing. The failure of the Claimant’s clients to respond in full to the Defendant’s SAR means that the Defendant is prejudiced and is unable to prepare a full and complete Defence. The Defendant reserves the right to seek from the Court permission to serve an Amended Defence should the Claimant add to or expand his Particulars at a later stage of these proceedings and/or to limit the Claimant only to the unevidenced allegations in the Particulars.

7. The Particulars of Claim fail to refer to the material terms of any contract and neither comply with the CPR 16 in respect of statements of case, nor the relevant practice direction in respect of claims formed by contract or conduct.
7.1 The PoC are misleading the court, as no PCN was issued to the Defendant.
7.2 The PoC do not specify the nature of the alleged parking contravention

8. Failure of Claimant to provide evidence of Contract with Landowner. It is not admitted that the Claimant has contractual or other lawful authority to make contracts with drivers at this location, and/or to bring proceedings against the Defendant. The Claimant is put to strict proof. Further, and in the alternative, the Defendant avers that the Claimant requires the permission of the owner of the relevant land - not merely another contractor or site agent not in possession - in order to commence proceedings.

9. Notwithstanding any of the above, the Defendant avers that the failure of the Claimant's clients to issue a NtK as confirmed by their response to the Defendant’s SAR, means that the claim fails completely, and therefore the Defendant humbly requests that the claim be struck out by the Court.


Have I missed anything important or put something in that isn't helpful?

Thanks again

MW

This post has been edited by MickW: Wed, 27 Feb 2019 - 16:28
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MickW
post Sat, 2 Mar 2019 - 08:42
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Hi all

Sorry to push, bit I'm just a bit concerned that the clock is ticking on this - I will need to submit this defence by the 11th so if anyone can let me know if this is okay or needs changing that would be really appreciated

Thanks

MW
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Macapaca
post Sat, 2 Mar 2019 - 09:34
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Para 4 - This is a bit bald. You need to add in what way the signage is unclear and non-compliant.

This was the point that poked me in the eye on a quick look. Sorry but I don't have time to go through it in detail so please don't assume that I am implying that the rest is ok. Neither am I saying it is not.
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MickW
post Sat, 2 Mar 2019 - 09:54
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Okay thanks

On the signage issue I was going by a comment from Nosferatu who was responding to my post where I said that I could look into signage at the site but this would involve a fairly lengthy journey as the car park is quite a distance from me but I was willing to do so if necessary. He said that if I aver the signage is insufficient it forces them to prove what the signs are like so I assumed that was all I had to do...

In what way could I argue that the signage was defective?
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MickW
post Sat, 2 Mar 2019 - 10:23
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Good old Google Maps wink.gif

So could I argue that this signage is not complaint with Appendix B of the BPA Code of Practice which states that terms on entrance signs mus be clearly readable without a driver having to turn away from the road ahead?





This post has been edited by MickW: Sat, 2 Mar 2019 - 10:49
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Ollyfrog
post Sat, 2 Mar 2019 - 12:28
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Number 2 does leave a perfect opening for the judge to ask you if you were the driver. There could actually have been several million people driving your car on that day, my insurance covers me to drive your car for example (with your permission of course), so whatever is on your policy is irrelevant. If you were not driving, then just say so, if you were or even can't be sure (because they don't like that), best say nothing at all. I would just keep it as simple as stating that you are the RK of VRM xxxx and deny all liabilty etc (you'll have seen the full wording on others).

5.1 similar
5.2.2 Is the defendant not admitting or denying?

This post has been edited by Ollyfrog: Sat, 2 Mar 2019 - 12:34
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