Second LBC after SAR, 14 days to pay inc Xmas hols days Options

[Flakiesmum]

Was posting on MSe site and have moved across as it’s gone v quiet there.
Staying on here now and would appreciate help
Am struggling a bit with correct way fonward at this stage. And should I use POFA or anything for rebuttal at this stage? Also going overseas until early Feb and worried this will progress whilst away. Hence my needy approach for answers and moving thread (apologies)
CIRCs are

5/12/17 - Car was parked in 4hrs free, private pay and display car park. Have the flimsy ticket no glue, covering the time the charge was issued, which states 'Fix ticket inside window" (there are contradicting signs in this car park including PAY and display, no parking private car park)
5/12/17 - Windscreen charge 'Not displaying a valid permit'
22/12 - The keeper of the vehicle sent written appeal providing evidence that the photo taken by UKPCM clearly shows matching serial no of 'flipped' ticket on dashboard. Driver has never been disclosed.
25/1/18 - Appeal denied letter from UKCPM. No information given on Contracted party, what the charge was based on etc.
8/2/18 - Formal demand letter from UKCPM (NOT A NTK) (68 days after pcn)
15/5/18 - Threat letter No.1 from DRP
29/5/18 - Threat letter No.2 from DRP
12/6/18 - Threat letter No.3 from DRP
12/7/18 GStones ' quoting Beavis' letter
14/11/18 GstonesLetter Before Claim
22/11/18 SAR request to UKCPM and cease processing letter to GStones
26/11 GStones letter refusing to place on hold followed up with second request to cease processing data
SAR data received from Parking co
12/ 12 and 13/ 12 Two further letters from GStones headed LBC. Both giving 14 days to pay. By 26th and 27th Dec Same reference, same incident. Both exactly the same content and enclosing a copy of their 14th Nov letter and instruction to pay gstones

DVLA have confirmed by email that they have not received any request for keeper details
UKCPM confirmed by email following up on the SAR as follows
“The PCNs on our system get automatically sent across to the DVLA, this information is then automatically uploaded on to our system. The DVLA will only send us correspondence if there is a Problem with the vehicle information that we have supplied to them. Therefore we have no correspondence from the DVAL regarding yourself or your vehicle”

Does the keeper respond at this stage? If so would really appreciate a steer on what basis please, and how detailed should the response be?
Am a bit confused as to correct way rebut now e.g flipped ticket non compliance with POFA, ( they are making an assumption on driver) PAP non compliance
Will not responding be seen as not be complying with “the PAP” ?

Many thanks

This post has been edited by Flakiesmum: Thu, 20 Dec 2018 - 09:40

[Advertisement]

[bearclaw]

It appears that you have done everything right if the driver is not identified. The lack of KADOE access from the DVLA is especially helpful. Did you ask for *any* access to your records in that period or did you just specify access by UKCPM?

You should respond to a formal letter before claim, but Gladstones ones tend to be rather woeful. Can you post up the LBC and the PCN, suitable redacted to get rid of personal information...

[Jlc]

You should use PAP to narrow any issues. But even without PoFA compliance they can pursue on the basis that the keeper was driving - however, they would have to show on the balance of probabilities they were. (There is no presumption and only PoFA can be used for such liability)

Not accessing the DVLA (even though they say they did - which should be driven home) instantly means they can't use it.

This post has been edited by Jlc: Thu, 20 Dec 2018 - 10:23

[bearclaw]

As I recall and perhaps others can confirm but wasnt UKCPM banned from access from the DVLA a little bit back for abusing the facilities as it were?



Dear Gladstones

ref xxxxx

I have received your Letter Before Claim.

As you should be aware, your client's paperwork fails to comply with the Protection of Freedoms Act 2012 sched 4 Section 11. Specifically there has not been an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate, during the specified relevant period as defined in Section 8(5). I have been formally advised by the DVLA that no such application was made by your client or any other party in the period <insert dates> and that no such information about the keeper of the vehicle <insert reg number> was released by them to your client or any other party.

As such your client cannot hold me liable as keeper. I am not required to identify the driver to you and will not be doing so without an order of the court.

Should your client issue a claim I will defend the case on this point and others, any of which will be fatal to the case.

I expect written confirmation of your clients discontinuance of this matter.

Yours


This post has been edited by bearclaw: Thu, 20 Dec 2018 - 10:53

[Flakiesmum]

Many thanks for assistance it is appreciated
As requested here are the images (fingers crossed this works as I am learning fast

[cabbyman]

I wonder if this land was subject to byelaws which may not have been rescinded?????

[ostell]

I was wondering about that with the words "Quay" appearing.

[Flakiesmum]

I searched earlier in the process, with a view to contacting the owner and found it was once Royal maritime land. The road leading to the car park and the land, I beleive, is now owned by SEEDA. I have been unable to find the building owner and associated car park owner. I contacted the managing agent who have continuously ignored me. Obviously the parking co have declined to provide the info. Not sure where else to search particularly for Byelaws.

In the meantime, 2 further g stones LBCs ! dated 14th and 15th Dec (that’s now 4 times for 1 incident)
Reply, as kindly suggested by Bearclaw, sent.
Thanks all again.

This post has been edited by Flakiesmum: Sat, 22 Dec 2018 - 07:16

[cabbyman]

Is this the land:

https://goo.gl/maps/sfPb41Bn9DA2

If not, can you post a GSV to the correct parcel.

[Flakiesmum]

That’s v Close cabbyman
Here is the GSV it’s the underground car park at the bottom centre
If the link does not work try Starbucks Dockhead road or TRUGYM Chatham (they are in the building above)
Thanks

https://www.google.co.uk/maps/@51.4018175,0...#33;3m1!1e3

[Flakiesmum]

Sorry that’s not street view try this one

https://goo.gl/maps/KKN6r4Ucj432
Or
https://mapstreetview.com/#ulppe_bg8q_9b.e_-6g07

This post has been edited by Flakiesmum: Sat, 22 Dec 2018 - 15:46

[cabbyman]

Mmm, as I thought. I spent a little while trying to find a link to confirm if the byelaws had been repealed.

Of course, there may be general legislation applying to all MOD land. If you, or anyone, can find out one way or another, if the land is still under statutory control, UKCPM are stuffed in any action against the RK under PoFA.

One way may be to put them to strict proof that legislation has been repealed in respect of the land. Let them do the legwork. If it has, you fall back on other lines of defence. If it hasn't, bingo! You win.

What say others?

[Flakiesmum]

Am back!
Have now had a reply from Gs with a screenshot of a database which they state is evidence of an application to the DVLA for the registered keeper details. The screenshot says “liability type” is “ Vehicle Registered Keeper” and “Liabilty source” is Unknown. ( if this is evidence I would have thought that liability source would state DVLA? )

The letter also states that I aver that I was not the driver and that a notice to keeper was sent. Neither are correct I have simply not provided the driver details and no NTK was issued.

They request my evidence from the DVLA in line with PAP and quote exactly this.
“Our Client will aver that you were the driver as this presumption has not been rebutted. However if you weren’t pursues you as the keeper (see the Act Scedule 4 (4) (1).
If you nominate the driver by providing us with their full name and address prior to a claim being issued we will forward this to our client for consideration....”

Suggested response on which I would aprreciate expert guidance. Thanks in advance.

Thank you for your letter with what appears to be a database screenshot of vehicle Keeper details.
Obviously I would be unfamiliar with your clients database so unable to acknowledge that this is indisputable evidence of a response from the DVLA as you aver. Particularly it is quoted that the liabilty source is “Unknown” one would expect evidence to include a definite and reliable source of the keeper liability source such as DVLA.
In accordance with pre action protocol please find attached a copy email from the DVLA confirming that no requests for the keeper details were made during the period xx to xx.
I would also inform you that a POFA compliant notice to keeper was not issued and neither was any evidence of a notice to keeper provided by your client in response to my subsequent SAR request.
As such I continue to assert that your client cannot hold me liable as keeper and I am not required to identify the driver to you and will continue not to do so without an order of the court. [/u]

As previously requested I now expect confirmation of your clients discontinuance of this matter.

This post has been edited by Flakiesmum: Tue, 12 Feb 2019 - 11:40

[Jlc]

Our Client will aver that you were the driver as this presumption has not been rebutted

There is no such presumption. It is not for the defendant to rebut.

Either they can pursue the keeper because they have complied with the Protection of Freedoms Act or they have to show on the balance of probabilities that the keeper was driving.

[The Rookie]

“Our Client will aver that you were the driver as this presumption has not been rebutted. However if you weren’t pursues you as the keeper (see the Act Scedule 4 (4) (1).
If you nominate the driver by providing us with their full name and address prior to a claim being issued we will forward this to our client for consideration....”

In English, because you haven't said you WERE NOT the driver they will claim you are, a judge may decide on balance of probabilities that you were unless you can say you weren't, they may not. You have to remember BoP is a fine line, they believe that side 50.1% and the other 49.9% then the 50.1% wins as if its 100%. I'd disagree with JLC, they are working on THEIR presumption you were the driver, and that presumption can clearly exist, but their is no presumption in law which I think is what he's thinking of.

They are also saying that if you were not they will make a claim against you as keeper using PoFA, this would have a benefit to you in that PoFA limits them to the value of the original charge plus fixed extra's, not to made up claim inflators, that assumes they have complied with PoFA, if they haven't then no keeper liability at all.

It's very generous to consider a driver nomination..... PoFA makes it clear if the driver is nominated before the court claim is raised the keeper has no liability at all, even if you do it the day before.

This post has been edited by The Rookie: Tue, 12 Feb 2019 - 09:37

[Jlc]

I'd disagree with JLC, they are working on THEIR presumption you were the driver, and that presumption can clearly exist, but their is no presumption in law which I think is what he's thinking of.

Yes, in law.

[bearclaw]

OK so Gladstones say they have applied to the DVLA...

DVLA say they havent...? Who are we going to beleive?

Is it worth a strongly worded letter to Gladstones pointing out that you know that they didnt apply to the DVLA and advising them that if they commit perjury you are going to ram that point home so far it'll make their eyes water?

[Flakiesmum]

Thanks all
Dear Bearclaw, I like that suggestion so much but don’t think my draft response above is strong enough and should I send Gs any evidence at this stage?
Note I did ask the DVLA which organisations had accessed the RK data (not requested it) and have the reply that they received no requests.
Would appreciate a steer on how to progress.
From my understanding on reading POFA, they have not followed it as no NTK. Only a letter headed 2nd reminder. So are they just assuming RK was driver and trying to progress on this basis.

This post has been edited by Flakiesmum: Tue, 12 Feb 2019 - 11:47

[bearclaw]

I'd make another request to the DVLA and make the request quite wide - from the date before the event to the date you got that letter or email from Sadstones. That will show if they made a request out of time, which is just as bad as never making one.

Then come back and see what people on here think.

[Flakiesmum]

I'd make another request to the DVLA and make the request quite wide - from the date before the event to the date you got that letter or email from Sadstones. That will show if they made a request out of time, which is just as bad as never making one.

Then come back and see what people on here think.

The DVLA request was already wide and covered the the day before the event up to the LBC almost a year later.