Question about driver versus keeper

[Oddfellow]

This doesn't relate to a specific case, but may be helpful to the many people defending claims in court.

 

 

If POFA is not followed to the letter, the only party that can be the lawful defendant is the Driver. While I understand the need to refer to the Registered Keeper in the third person in all communication with the PPC and their lawyer of choice, so you don't negate the protection you have under POFA, how far are you permitted to go in court to deny that you WERE the driver?

 

 

There was a case on here just last week where a judge required the defendant to state whether he/she was the driver or not. If you say not, but you know that you were (or there is a strong likelihood that you were), are you committing perjury?

 

 

How do you get around this (as civil cases need only to be proven on the balance of probabilities)?

[ericsbrother]

NO, the POFA creates a keeper liability if "certain conditions are met" as they law says. The problem is that many judges havent read the POFA and so dont know the law and if you fail to take a copy of it with you to court as part of your evidence bundle then you cant show them where this liability can and cannot be created.

 

TYhe case recently was one where the defendant made a poor choice of words and again didnt understand the law well enough to argue his point. He could have shown that the Huiman rights act regarding self incriminatination or others applied (it does) and the fell foul of a judges right to dislike to look of someone, just like a 17th century assizes judge would.

 

I make the point that a this was the decision of a DDJ, the lowest level of the pecking order it would very likely be overturned at appeal as the judge got a lot of other things wrong or failed to understand the difference between what the law says and what we would call common sense (ie the difference between what is prohibited under the Road Traffic act and some daub of paint on private land that may show an intent but has no supporting statute).

 

This is why one shoudl state from the outset that it is put to strict proof by the parking co to show they know who was the driver, the case example said he couldnt be sure or some other wishy washy term rathe than a hard yes or no or even not telling you as it is against my human rights to answer that. (expect a long journey throughthe courts system as this gets appealed by both sides because that would kill any claim that failed the strict liability of the POFA-)

Edited January 24, 2017 by honeybee13
Paras.

[Poppy's father]

This concept interests me. Although I have heard no more from Sussex Security solutions regarding an invoice they sent me back in July the situation was that on the land they claim to control my wife ,son and I were there over a period of 15 minutes on the day in question.

 

 

We have 3 VW cars two are white and one is black two of us arrived in each of the white cars, one arrived in the black car, then we swapped cars and also travelling partners for departure leaving the black car on site for two hours. The black car was on site for the duration also and indeed was left there for two hours.

 

 

The PCC sent a NTK of one white cars registration plate as it departed the site and also a picture of all three of us standing by the car. neither white car departed with the arriving driver behind the wheel. Only one number plate was pictured identifying the vehicle.

 

 

Sort that one out if you can !!!

[Oddfellow]

Sounds like I might need to buy a fleet of identical cars for my entire family!

 

 

So, EB, if the judge asks you that direct question, then you can quote the Human Rights Act, much as Americans can exercise their right under the Fifth Amendment to the US Constitution not to answer a question that might incriminate them?

 

 

Thanks for helpful comments.

[Poppy's father]

I have wondered whether they may employ a vehicle expert who could identify the different roof line of a Golf, Scirroco or Passat as none of the pictures of the three of us standing by a white car roof show a number plate and then who was driving which car on departure. The potential for confusion is huge !!

[ericsbrother]

the real thing is not to get anywhere near a point where you have to answer the question. If your defence starts with the point that no POFA compliance, no liability then that should be that. If the parking co then says that they think the driver is the keeper under Elliot v Loake then you trash that comparison and then you dont have to ever go near the question of who was the driver.

 

Generally you are being sued because you are the keeper. The claimant has to show they ahve a claim against the defendant and killing them on these points in a forceful manner means that thay have no cause for action. The human rights act will open a very big can of worms and go as far as Beavis did so avoid getting into a position where that becomes relevant but if it is make sure you ahve copied the correct part of it to take with you.

 

When people have lost out over this argument is where they havent taken a copy of the POFA with them in their evidence bundle and gone through it line by line. Even then you will get judges who make arbitary decisions and these tend to be "interesting" in other ways so it is not the only point.

 

People need to do their homework and go on the offensive at the very beginning, with a CPR 31.14 request and if they dont get a satisfactory response then go for a strike out . When POFA is an issue ask for strict proof of the identity of the driver from the claimant, they have to show they are chasing the right person for the right reason.

 

Everyone should read up on these things and copy everything they think may be useful and present it in a nicely page numbered format so it can be referred to. Judges arent going to spend their time thumbing through every bit of case law in all of their big books just because you mention Smith v Jones 1878 and then add no further details

[ericsbrother]

Can I send you a personal message as I have some information that is directly relevant to this and would like to progress a complaint about a parking company and their ICO registration.

I have wondered whether they may employ a vehicle expert who could identify the different roof line of a Golf' date=' Scirroco or Passat as none of the pictures of the three of us standing by a white car roof show a number plate and then who was driving which car on departure. The potential for confusion is huge !![/quote']