Jump to content


Who can use the Protection Of Freedom Act? **Discontinued**


style="text-align: center;">  

Thread Locked

because no one has posted on it for the last 3768 days.

If you need to add something to this thread then

 

Please click the "Report " link

 

at the bottom of one of the posts.

 

If you want to post a new story then

Please

Start your own new thread

That way you will attract more attention to your story and get more visitors and more help 

 

Thanks

Recommended Posts

Hi,

 

I'm currently going through a court claim with a local company in my town.

The claim is against my missus but she is petrified so I have taken over.

The company (Whitehaven Harbour Commissioners) are not BPA members or members of the AOS so I believed that they could only pursue the driver. That was added into the defence as the alleged breach happened on a Saturday and me and the missus would have been in the car (both insured to drive it) so it could have been either of us driving. They have replied to the defence quoting section 4(1) of schedule 4 of the Protection Of Freedom Act (WHC has the right to recover unpaid Parking charges from the keeper of the vehicle).

They are the landowner if that makes any difference.

My question is can they use that part of the act? I honestly thought it was only BPA members or AOS members that could use it (obviously I could be wrong).

They have also choose to ignore my request for a breakdown of their charge but I'm firing in a reply to that :-)

 

Cheers,

 

Sploits

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

  • Replies 60
  • Created
  • Last Reply

Top Posters In This Topic

Top Posters In This Topic

What you need to do is contact the DVLA and ask on what grounds they asked for your information. To issue a parking charge they would need to be BPA AOS members. However they could request them for other reasons, I would guess at two options 1: trespass or 2: under a byelaw.

 

If they aquired the information for trespass then they would have to sue you for trespass, if under a byelaw then it would be a criminal case.

 

There is another option they used a AOS member which is not allowed.

Link to post
Share on other sites

Hi,

I did request how they got the details from the DVLA and the response I got was:

 

'The Whitehaven Harbour Commissioners are not members of the BPA or the AOS. However the DVLA releases keeper details to us as we are a Statutory Authority and Trust Port empowered by Act of Parliament to undertake all marine and landside responsibilities on its property, land within its harbour limits. The Commissioners are accountable to and regulated by the Department of Transport.'

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

I'll contact the DVLA on Monday to find out how they have asked for it. Will the DVLA give me the details as I'm not the RK?

Also do WHC have the right to go after the RK if they are not members of the BPA or AOS?

 

Thank you for your help so far

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

I think that would be a huge downfall for them. Ticket issued mid April 2013 and then nothing heard until mid August with a letter saying pay or we will take this to court (nothing saying why we had to pay or what breaches had occured).

Next thing court papers (no letter before county court action). Timescales and compliant documents are out the window with this one.

We did also put an appeal in once we received the August letter. I said I was acting for my partner and they ignored it and issued the court papers. When asked why they had ignored they stated they had no idea who I was or or at what degree I was acting on my partners behalf.

Did they not think to ask? We've since sent them another letter (signed by my partner) saying that everything has to be addressed to me as I am dealing with it

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

Post up the particulars of claim and tell us what you have received in correspondence so far. Did they ticket the car? If so, when did they write to you through the post afterwards? What was the nature of the correspondence prior to receiving the court claim.

It appears from what you ahve said they have not followed the protocols of the PoFA and are thus barred from claiming from the registered keeper and so that will be the main thrust of your defence-there is no claim to answer as you are not liable. Ask that the claim be struck out as vexatious.

Link to post
Share on other sites

Hi ericsbrother,

 

I'll try and get the particulars uploaded tomorrow.

We got a ticket on the car mid April. The next thing we heard was mid August. The August letter did not say what we had done wrong but merely went on to say that we owed £70.

I fired an appeal in (which which they ignored on the grounds they didn't know who I was as the ticket is in my partners name. Would it of hurt them to ask the question??) and heard nothing until the papers came through. They haven't followed the PoFA through with the correct letters and even when we recieved the August letter there was no detail into what we had supposedly done.

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

Appeal a waste of time if you have received court papers. You need to respond to the court within a fortnight, just tick the boxes saying you intend to defend in full and state that you will send the defence within the time allowed. You will get an allocation questionnaire.

Within the month you need to submit a proper defence and that will be built upon that you deny being the driver at the time so cannot have enterd into a contract and the claim is vexatious as the company has failed to follow the procedures of the POFA and so is not entitled to pursue the RK in absence of having the driver's details.

you can then show a full time line for what you have received and what is supposed to happen to show where they have fouiled up. Counterclaim for £100 civil remedy for harassment. there is a box to tick for that on your court form which you need to send back soon. this will stop them from just bottling out and not offering an apology

Link to post
Share on other sites

They can use POFA (to pursue the keeper - which is what s.4(1) permits but only if they follow the remainder of the provisions themselves - their paperwork/procedure must comply with the requirements of Sch. 4 too.

 

The implication of your post is that the notice was sent by post (as opposed to having a ticket stuck on the windscreen) in which case, for example, that should have been with the registered keeper within 14 days of the alleged breach (Counting up from the day of the alleged breach as Day 0). A failure to comply with the provisions would prevent the registered keeper from being pursued.

Link to post
Share on other sites

Ok this is the particulars of what we have had so far:

 

13/04/13 - Ticket issued for an overstay of around 20 minutes

http://goo.gl/sXUt6E

 

14/08/13 - A letter recieved from Whitehaven Harbour Commissioners. This was the first communication since the ticket.

http://goo.gl/10uels

 

18/08/13 - An appeal was emailed into WHC. They have confirmed they recieved it but never answered it as it was not done by my partner (her name is on the ticket).

 

15/10/13 - Court papers recieved from Northampton. the description said a parking charge was issued and WHC had no reply from my partner.

 

22/10/13 - A defence goes in asking for a breakdown of charges, asking how they got our details from the DVLA, how they felt they had the right to pursue the RK when they had no right to.

 

15/11/13 - I recieve a reply to defence from WHC which states PoFA and has a cheeky part in regarding a PENALTY Enforcement Notice (I've highlighted that in yellow).

Page 1

http://goo.gl/N32bX0

Page 2

http://goo.gl/DErXlV

Page 3 - The penalty part is here

http://goo.gl/bL6ldr

Page 4

http://goo.gl/sXUt6E

 

I also have a picture of one of the signs in the Tangier Street Car Park. Penalty is also stated on the bottom of this:

http://goo.gl/RsS8Qj

 

I am going to reply stating that they have failed to comply with the PoFA thus barring themselves from claiming from the registered keeper. Request yet again a full breakdown of their charge and highlight the fact that they themselves are using it as a penalty (as stated in the reply to defence and the sign that is on display in the carpark).

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

I haven't started to look at the defence documents yet but there are already problems:

 

1. The NtD is probably broadly compliant as I assume you have simply blanked out the vehicle details as they are required by para.7(2)(a) Sch.4 POFA

2. The purported NtK is not compliant with the provisions of para.8(2)(a - i) Sch.4 POFA. Firstly is was served out of time (the relevant period ended on 8 June and it was dated 12 August) and it is missing almost all of the requirements of the above section, it extends no discount period to the keeper, offers no invitation to identify and provide an address for service of the driver and incorporates no evidence.

 

That is assuming that the August letter is actually a NtK and not a letter before action. If it is supposed to be the latter then it utterly fails to conform to the Practice Direction on Pre-action Protocols. IMV, therefore the case is flawed both in respect of pursuing the registered keeper a la POFA or pursuing them on the basis that on the balance of probabilities they were the driver at the time of the parking event.

 

Their evidence pack is riddled with nonsense and I note that they have included a copy of what actually purports to be a NtK and merrily add that this was sent on 13 November - way out of time. Their hope of pursuing you as the keeper are shot! It seems that they have realised their error and are trying to reset the clock by serving a NtK on you now but it it way out of time - the relevant period ended on 8 June and 13 November is considerably beyond it.

 

The Commissioners are empowered to make byelaws. If these byelaws include reference to the management of car parking then that will render their entire attempt at pursuing this case fatally flawed as in order for POFA to apply then the car park concerned must be "relevant land". If there are statutory powers apply then it ain't "relevant land".

 

Don't go rushing to write back to them quite yet. Just prepare a full defence. POFA is not the only issue here as they could switch tack and try to pursue you on the balance of probabilities.

Edited by Old Snowy
Link to post
Share on other sites

Hi Old Snowy,

So far I have added a defence and then filled in the questionnaire (closest court, we do not want mediation etc) and fired that back to the court and WHC.

I am currently writing a letter stating how they have messed up and if you don't mind I will add parts of your reply (I wasn't sure about the dates but you've listed then which is great). I shall send this to the court and WHC via recorded post.

What else do I need to do? Also thank you for your help.

 

The balance of probabilities - I have told WHC that 2 of us were in the car that day (which is true as it was a Saturday we went shopping) and we are both licensed and insured to drive the car. I drive that car as much as my partner does on the weekend so it could have been either of us driving the vehicle. To me that is a 50/50 split is it not?

Edited by sploits

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

It was based on the fact that they could only pursue the driver and that we would not be telling them this.

Their charge being deemed a penalty (a full breakdown has been asked for a few times now and they ignore the request). I quoted a few things from VCs vs Ibbotson here.

They ignored our appeal when we sent it in August (a reply to that and we could have avoided all this mess).

How they got our details from the DVLA (which they don't appear to be telling the truth on this one). we have requested the info from the DVLA, I will keep you posted on that one.

 

They are the land owner. Its around £1 an hour to park in their carparks. we overstayed (which we do not deny) but if they had ticketed us for around £2 (the hour charge and a little admin charge) then we would have paid it and that would have been the end of that. they are trying to show themselves as a parking company like APCOA (who used to look after the carparks for them)

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

The letter I have drafted up to reply to WHC is as follows (I've borrowed parts from this thread)

 

Thank you for your reply to defence dated 13/11/2013. I would like to draw it to your attention your point number 3. You have stated that a section of the Protection of Freedoms Act 2012 and said in this case it is relevant. I would like to inform you it is not due to you being noncompliant.

The Protection of Freedom Act 2012 requires all of your paperwork to be compliant with the act. Your paperwork has fell short of this on the following grounds.

You firstly give a ticket on the 13/04/13. This then should be followed up with a Notice to Keeper. All we received was a letter demanding money and this was not received until 12/08/13.

The purported Notice to Keeper is noncompliant with the provisions of para.8(2)(a - i) Sch.4 Protection of Freedoms Act 2012. Firstly it was served out of time (the relevant period ended on 8 June and it was dated 12 August) and it is missing almost all of the requirements of the above section, it extends no discount period to the keeper, offers no invitation to identify and provide an address for service of the driver and incorporates no evidence.

If the letter was not a Notice to Keeper but a letter before action then it fails to conform to the Practice Direction on Pre-action Protocols. Therefore the case is flawed in the respect of pursuing the registered keeper via the Protection of Freedoms Act 2012. If it was a letter before action and the Notice to Keeper is what you have included in your reply to defence then it has been served out of time (the relevant period ended on 8 June 2013)

 

Due to your paperwork being noncompliant with the Protection of Freedom Act 2012 this bars you from using the act in this case and therefore you cannot make a claim against the registered keeper but only the driver. As we have previously said there were 2 of us in the car on 13/04/13, both of us are insured to drive the car and both of us do drive the car regularly. You cannot prove who the driver was and as stated and accepted by you we will not be divulging this information to you.

 

In point number 2 you have said you can access the DVLA database but if it is for the pursuance of a parking charge (which this is) you can only access the database if you are a BPA member or a member of the AOS. If you have accessed the database claiming a byelaw has been breached then this is misuse of the DVLA system.

I have continually asked for a breakdown of your charges. You are demanding money from us but yet you will not prove that your charge is a pre-estimate of loss.

 

I have also attached your Notice to Keeper as it states you are actually pursuing a Penalty Enforcement Notice. Penalties in a contract render this charge unenforceable. I have also attached a photo of one of your signs at the Tangier Street Car Park. As you can see this also states you are claiming penalties.

 

Due to all of the above I request that this is struck out due to the fact it is vexatious as Whitehaven Harbour Commissioners have failed to follow the procedures of the Protection of Freedom Act 2012 and so is not entitled to pursue the Registered Keeper in absence of having the driver's details. Also they are claiming a penalty as they will not provide a breakdown to their charge, their paperwork and signage (copies of Whitehaven Harbour Commissioners paperwork and signage attached).

 

Kind regards,

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

This should not be going just to the Commissioners but to the court and a copy to the Commissioners. There is no rush to do this - take a day or two as there are many more points that you should be including. Remember: Any point that you do not challenge will be deemed to be accepted and there is a fair bit to cover.

 

Your point regarding DVLA access is, with respect, incorrect. They cannot access the DVLA database using the electronic link because the are not members of the BPA Ltd AOS but are still able to make use of the access provided for by virtue Reg. 27(e) Road Vehicles (Registration & Licensing) Regulations, 2002 (i.e. "reasonable cause") by means of a paper application using form V888.

 

With regard to their purported NtK it may well mention the word penalty but that is not the substantial problem with it. As set out above, Sch. 4 POFA (specifically para. 8(5) requires that (amongst other things, in order to be able to make use of keeper liability provisions) a NtK must be served (delivered) to the keeper within 56 days of the NtD (the original ticket). The NtD was served on the driver on 13 April and 56 days beyond that is 8 June. No NtK within that period and they fail to meet Sch. 4 requirements and cannot pursue the keeper. The fact that the notice they have produced dated 13 November is practically compliant is neither here nor there as it was not served in time.

 

And press them in rather more polite terms to produce evidence to show that their claim is a genuine pre-estimate of loss. Tell them that you will "put them to strict proof" of this.

 

With respect, their case is not vexatious they have just failed to make it.

 

As a matter of urgency get someone to call on their offices and request a copy of their byelaws. That may well put pay to their entire POFA enterprise anyway.

Link to post
Share on other sites

Thanks Old snowy. I'll amend parts of my letter and look at anything else that needs added in the next few days. I have added a CC of Northampton court and I have a copy of everything to send them.

 

With regard to the DVLA access for 'reasonable cause', what would you class as a resonable cause? We've fired a request into the DVLA and they are hopefully getting back to me within 3 working days.

 

So the main bulk of the letter is their failure to comply with PoFA. I've tried to put as much in about that but I will add to it to emphasise the fact.

 

I should hopefully be in town this week and I will pop in and ask for a copy of the Byelaws. No doubt they will offer me a cuppa tea and a biscuit when I tell them my name :razz:

 

Again thank you kindly for your help.

Edited by sploits

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

There is a good chance that the land comes under byelaws.

see

http://www.legislation.gov.uk/uksi/1996/1627/article/23/made Get the byelaws and see if they cover parking.

if so then

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

3 (1) © ©any land (not falling within paragraph (a) or (b)) on which the parking of a vehicle is subject to statutory control.

Then see 1 (1) (a)

1 (1) This Schedule applies where—

(a) the driver of a vehicle is required by virtue of a relevant obligation to pay parking charges in respect of the parking of the vehicle on relevant land; and

 

which would dis-apply PoFA and so leave them with no standing (on the case they have stated).

Their own Governance document (available on their website) declares they review the byelaws every three years so a current copy should come readily to their hand.

http://whitehavenhc.org.uk/contact

Edited by lamma
Link to post
Share on other sites

Thanks to both of you. I will call by the WHC office this week and request a copy of the byelaws. Once I've got them I'll scan them up on here for you both to see.

The Reply I'm doing is merely about how they are wrong with respect of trying to hide behind the PoFA. It has never been mentioned in the previous letter or from them and was only mentioned when I challenged them to tell me how they were going to claim against the registered keeper when they had no rights to do so.

They drop PoFA into the frame thinking that it will cover them but it will not as they are non compliant and out with their times. (massively). Penalty splatter all over it hasn't helped them also and as they have failed to give a full breakdown of costs I'll argue until I'm blue in in the face that this is never a pre-estimate of loss but a penalty (as they have highlighted to me). I'm hoping the byelaws will be the last nail in the coffin.

 

Thanks to you both again and I'll post back once I have the byelaws

 

*EDIT - Just a quick thought, I can just walk in their and ask for a copy which will be freely available? Or will I have to request it under some freedom act or something? I don't want to walk in there, ask for a copy, they say no, I walk out, they laugh.....:shock:

Edited by sploits

<----------- If I have helped in any way please click on my scales :p

Link to post
Share on other sites

  • Recently Browsing   0 Caggers

    • No registered users viewing this page.

  • Have we helped you ...?


×
×
  • Create New...