PePiPoo Helping the motorist get justice

Welcome Guest ( Log In | Register )

Reply to defence not served on me, Threads merged
NGR
post Tue, 12 Jun 2018 - 15:52
Post #1


Member


Group: Members
Posts: 24
Joined: 28 Jun 2005
Member No.: 3,279



All,
Apologies if covered already but an interesting development in an ongoing claim from a parking co and solicitor of questionable morals.

Essentially, my defence went in, filed and copy to all parties as expected some months ago. I phoned the court to check if a reply to my defence had been filed with them and lo and behold, it has! However, I have received no copy myself (I got the N180 from the Claimant/Solicitor). CPR rules say that all parties should be served a copy of the reply and it was filed at court a month ago so not simply still 'in the post'. Does this sound like an attempt to disadvantage me? More importantly, I intend to bring it up in the hearing (as well as other failures of the Claimant's Solicitor to follow PAP and CPR 31:14 etc...) Any good way to make the most of it (apart from whinge at the SRA)?



Go to the top of the page
 
+Quote Post
2 Pages V  < 1 2  
Start new topic
Replies (20 - 37)
Advertisement
post Tue, 12 Jun 2018 - 15:52
Post #


Advertise here!









Go to the top of the page
 
Quote Post
nosferatu1001
post Thu, 14 Jun 2018 - 09:30
Post #21


Member


Group: Members
Posts: 17,596
Joined: 27 Nov 2007
Member No.: 15,642



Nowehere in KADOE does it require POFA compliance.
THey can, as ever, obtain data up to six months after the event, so therefore POFA is NOT required.

This post has been edited by nosferatu1001: Thu, 14 Jun 2018 - 09:31
Go to the top of the page
 
+Quote Post
NGR
post Thu, 14 Jun 2018 - 11:34
Post #22


Member


Group: Members
Posts: 24
Joined: 28 Jun 2005
Member No.: 3,279



QUOTE (nosferatu1001 @ Thu, 14 Jun 2018 - 10:30) *
Nowehere in KADOE does it require POFA compliance.
THey can, as ever, obtain data up to six months after the event, so therefore POFA is NOT required.


Except:
“Notice to Keeper” means a notice to the registered keeper of the vehicle as
defined in paragraph 8 of Schedule 4 to the Protection of Freedoms Act 2012.

comply with any applicable requirements prescribed in regulations
under paragraph 12 to Schedule 4 to the Protection of Freedoms Act
2012.

B2. Purpose For Which Data Is Provided
B2.1. The DVLA shall provide each requested item of Data to the Customer
via the KADOE Service for the Reasonable Cause of enabling the
Customer to:
a) seek recovery of unpaid Parking Charges in accordance with the
Accredited Trade Association Code of Practice, and using the
procedure in Schedule 4 to the Protection of Freedoms Act 2012
(where the vehicle was parked on private land in England or Wales on
a particular date); and
Go to the top of the page
 
+Quote Post
nosferatu1001
post Thu, 14 Jun 2018 - 11:46
Post #23


Member


Group: Members
Posts: 17,596
Joined: 27 Nov 2007
Member No.: 15,642



QUOTE
otherwise seek recovery from a driver of unpaid Parking Charges in accordance with the Accredited Trade Association Code of Practice (where the vehicle was parked on private land in Scotland or Northern Ireland by that driver on a particular date, or where the Customer has chosen not to pursue, or is not in a position to pursue the vehicle keeper by utilising conditions in Schedule 4 of the Protection of Freedoms Act 2012)


Seriously, its the next line

So NO, it does not REQUIRE POFA.
Try again.

This post has been edited by nosferatu1001: Thu, 14 Jun 2018 - 11:46
Go to the top of the page
 
+Quote Post
The Rookie
post Thu, 14 Jun 2018 - 11:57
Post #24


Member


Group: Members
Posts: 39,414
Joined: 9 Sep 2003
From: Warwickshire
Member No.: 317



QUOTE (Redivi @ Thu, 14 Jun 2018 - 09:47) *
A court has recently decided that a parking company has the right to obtain keeper details from the DVLA if it believes it's entitled to payment no matter how flimsy the reason for the belief

To debunk their defence you will have to show why they knew they had no reasonable cause eg :

The car wasn't there
They don't have a contract for the location
It's a public road
You identified the driver

I agree, its 'reasonable cause' and the stock reference for what is or is not reasonable is Wednesbury. https://uk.practicallaw.thomsonreuters.com/...true&bhcp=1

As an example, an MA brings in a PPC in a residential car park who ticket owners in their own parking spaces, the fact they have a contract with the MA would probably mean that any application for RK details was reasonable, if/once however they know that the MA are NOT the landholder who had NO (or ability) right to make that contract then it would become unreasonable (noting there is a difference between being told and knowing).


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 8-0 PPC's
Go to the top of the page
 
+Quote Post
NGR
post Thu, 14 Jun 2018 - 14:06
Post #25


Member


Group: Members
Posts: 24
Joined: 28 Jun 2005
Member No.: 3,279



Interesting points, and I appreciate the comments.

That leads me to the question of why, in a defence, would a Solicitor cite PoFA as the reason they can get details from the DVLA when they don't need to? Why mention PoFA at all?
Go to the top of the page
 
+Quote Post
ostell
post Thu, 14 Jun 2018 - 15:19
Post #26


Member


Group: Members
Posts: 8,123
Joined: 8 Mar 2013
Member No.: 60,457



Probably because they think that quoting POFA, and Act. will make you back off as it makes it look as though they were complying with the law.

They can apply to the DVLA without using POFA. It's what they do afterwards that counts. The details that they obtained should have told them that the registered keeper was a resident if the complex and therefore would be the landholder.
Go to the top of the page
 
+Quote Post
nosferatu1001
post Fri, 15 Jun 2018 - 08:37
Post #27


Member


Group: Members
Posts: 17,596
Joined: 27 Nov 2007
Member No.: 15,642



QUOTE (NGR @ Thu, 14 Jun 2018 - 15:06) *
Interesting points, and I appreciate the comments.

That leads me to the question of why, in a defence, would a Solicitor cite PoFA as the reason they can get details from the DVLA when they don't need to? Why mention PoFA at all?

Because they are correct - they CAN use POFA as the cause to access the DVLA records.
They dont HAVE to.

INdeed, once they got the address they shoul dhave realised you were the landowner. They at that point KNEW or SHOULD HAVE known that they likely would be harassing a leaseholder.
Go to the top of the page
 
+Quote Post
NGR
post Fri, 15 Jun 2018 - 10:05
Post #28


Member


Group: Members
Posts: 24
Joined: 28 Jun 2005
Member No.: 3,279



QUOTE (nosferatu1001 @ Fri, 15 Jun 2018 - 09:37) *
QUOTE (NGR @ Thu, 14 Jun 2018 - 15:06) *
Interesting points, and I appreciate the comments.

That leads me to the question of why, in a defence, would a Solicitor cite PoFA as the reason they can get details from the DVLA when they don't need to? Why mention PoFA at all?

Because they are correct - they CAN use POFA as the cause to access the DVLA records.
They dont HAVE to.

INdeed, once they got the address they shoul dhave realised you were the landowner. They at that point KNEW or SHOULD HAVE known that they likely would be harassing a leaseholder.



The fact they use PoFA in a defence, in my mind, means they rely on PoFA and should stick to it. Documents from them are not PoFA compliant so would a DJ be happy for them to file defence citing PoFA then relying on some other reason to obtain details when I point out how they don't comply?
Go to the top of the page
 
+Quote Post
nosferatu1001
post Fri, 15 Jun 2018 - 10:38
Post #29


Member


Group: Members
Posts: 17,596
Joined: 27 Nov 2007
Member No.: 15,642



Your mind isnt correct on this.
They are correct. They CAN access the database because they are relying on POFA, they dont have to. Its just one reason they can use to access the DB; indeed, theoretically every single time they issue a PCN they can make a decision on whether to use POFA or not - PE does this where they knw they wont meet the 14 day deadline.

They can use POFA as th reason they access, even fi they dont actually comply with te requirements of POFA in order to hold the keeper liable. These are seperate items. If they chanegd the basis of their defence...
Go to the top of the page
 
+Quote Post
NGR
post Fri, 15 Jun 2018 - 14:44
Post #30


Member


Group: Members
Posts: 24
Joined: 28 Jun 2005
Member No.: 3,279



QUOTE (nosferatu1001 @ Fri, 15 Jun 2018 - 11:38) *
Your mind isnt correct on this.
They are correct. They CAN access the database because they are relying on POFA, they dont have to. Its just one reason they can use to access the DB; indeed, theoretically every single time they issue a PCN they can make a decision on whether to use POFA or not - PE does this where they knw they wont meet the 14 day deadline.

They can use POFA as th reason they access, even fi they dont actually comply with te requirements of POFA in order to hold the keeper liable. These are seperate items. If they chanegd the basis of their defence...


Thanks for the inputs, useful to get some feedback on this.
My complaint is that they have obtained and used my details when I had nothing to do with the event. Their defence only addresses obtaining my information, not using it improperly which is why I expected a more detailed defence.
Go to the top of the page
 
+Quote Post
nosferatu1001
post Sat, 16 Jun 2018 - 07:02
Post #31


Member


Group: Members
Posts: 17,596
Joined: 27 Nov 2007
Member No.: 15,642



Accessing means they're now controllers and can process your data.
Go to the top of the page
 
+Quote Post
Redivi
post Sat, 16 Jun 2018 - 07:44
Post #32


Member


Group: Members
Posts: 1,839
Joined: 31 Jan 2018
Member No.: 96,238



Johnson v PCM (UK) Ltd and Ballymore (Hayes) Ltd D9QZ395W

Judgment (not a verbatim transcript)

The key piece of legislation was in Schedule 2 of the DPA, at (6), which says that data can be obtained and processed if :
“The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject.”

What constitutes a legitimate interest is arguable, but the court must be guided by the UNISON Supreme Court judgment
PCM were therefore entitled to obtain and process that data, because they believed they had a legitimate interest in pursuing the charge, however hopeless their case would have been if it was properly tested in court.
They could not, therefore be held to be in breach of the DPA

Note :

Supreme Court decision in R (on the Application of UNISON) v Lord Chancellor [2017] UKSC 51, a case about Employment Tribunal fees.
This says in para. 29: “More fundamentally, the right of access to justice, both under domestic law and under EU law, is not restricted to the ability to bring claims which are successful.
Many people, even if their claims ultimately fail, nevertheless have arguable claims which they have a right to present for adjudication.”
Go to the top of the page
 
+Quote Post
NGR
post Mon, 27 Aug 2018 - 12:11
Post #33


Member


Group: Members
Posts: 24
Joined: 28 Jun 2005
Member No.: 3,279



All,
Following receipt of the claimant's WS, I have new evidence that will likely affect the hearing in my favour, but it's close to the hearing date - anyone know what the process is to request a postponement?

I haven't got the evidence in writing yet, only verbally hence why I want a delay. It's a direct result of the WS and couldn't have got the info earlier due to non disclosure by the claimant despite several requests.

Thanks all.

Go to the top of the page
 
+Quote Post
peterguk
post Mon, 27 Aug 2018 - 12:15
Post #34


Member


Group: Members
Posts: 12,761
Joined: 22 Oct 2007
Member No.: 14,720



Presumably your question is related to your other PPC thread?

http://forums.pepipoo.com/index.php?showtopic=120908&hl=


--------------------
Go to the top of the page
 
+Quote Post
NGR
post Mon, 27 Aug 2018 - 12:20
Post #35


Member


Group: Members
Posts: 24
Joined: 28 Jun 2005
Member No.: 3,279



It's a generic question about court procedure, but yes it is related.
Go to the top of the page
 
+Quote Post
kommando
post Mon, 27 Aug 2018 - 13:29
Post #36


Member


Group: Members
Posts: 4,015
Joined: 6 Oct 2012
Member No.: 57,558



Best kept in one thread, hit report and ask mods to merge.
Go to the top of the page
 
+Quote Post
henrik777
post Mon, 27 Aug 2018 - 18:22
Post #37


Member


Group: Members
Posts: 1,668
Joined: 16 Nov 2008
Member No.: 24,123



QUOTE (NGR @ Mon, 27 Aug 2018 - 13:11) *
All,
Following receipt of the claimant's WS, I have new evidence that will likely affect the hearing in my favour, but it's close to the hearing date - anyone know what the process is to request a postponement?

I haven't got the evidence in writing yet, only verbally hence why I want a delay. It's a direct result of the WS and couldn't have got the info earlier due to non disclosure by the claimant despite several requests.

Thanks all.



When is the last date for filing (usually 14 days before) ?

It depends what type of evidence it is and how you plan to introduce it. Is it documentary or a witness etc

Further, many think catching the claimant in a lie is golden, and whilst it never hurts,it's not always a killer.



If you still need more time then tell the claimant and you'd really need an application which costs £100 if consented or £255 if not. Chances are you'd need to foot the cost. It's unlikely to be worth it in a case for such a piddly amount.
Go to the top of the page
 
+Quote Post
nosferatu1001
post Tue, 28 Aug 2018 - 07:10
Post #38


Member


Group: Members
Posts: 17,596
Joined: 27 Nov 2007
Member No.: 15,642



Indeed, you need ot tell us more about it, to see whether its worthwhile doing it. Likely not.
Go to the top of the page
 
+Quote Post

2 Pages V  < 1 2
Reply to this topicStart new topic
1 User(s) are reading this topic (1 Guests and 0 Anonymous Users)
0 Members:

 



Advertisement

Advertise here!

RSS Lo-Fi Version Time is now: Tuesday, 18th September 2018 - 22:17
Pepipoo uses cookies. You can find details of the cookies we use here along with links to information on how to manage them.
Please click the button to accept our cookies and hide this message. We’ll also assume that you’re happy to accept them if you continue to use the site.