NCP have issued a claim against me for an unpaid parking contravention

[jr55]

Hi all

About a year ago I rented my car out through a third party company (Hiyacar) - have done this a few times without any issues.

Unfortunately the hirer incurred a parking charge when he outstayed his allotted time at an NCP car park.

NCP sent me a PCN notice, to which I responded by filling in the section at the back stating that I was not driving at the time, and sent it back to them. Despite this (they have never acknowledged recieving this) they continued to pursue me for this. There was no customer service number or email to contact them on.

After outsourcing this to a debt collection agency, they eventually issued a claim against me through the county courts. I filed a defence, and there is a hearing due next month. I have spoken the legal firm representing them (BW Legal) and have restated my case. They are refusing to drop it - telling me I am liable as I am the registered keeper of the car, and did not respond within 28 days (despite my replying the original notice!)

They have offered me a £150 settlement - I do not think I should have to pay for this. I am willing to attend the hearing, but obviously don't want a CCJ.

Would welcome any advice!

Many thanks

[ostell]

You provided the details of the driver at the time and therefore keeper liability no longer exists. POFA 5 (1). The condition in 5 (1) (b) is no longer true.

Have you a record of the letter that you sent that named the keeper at the time?

[jr55]

You provided the details of the driver at the time and therefore keeper liability no longer exists. POFA 5 (1). The condition in 5 (1) (b) is no longer true.

Have you a record of the letter that you sent that named the keeper at the time?

Unfortunately not. It was a section on the back of the PCN I received that I filled in and returned by 1st class post.

[ostell]

So you included in your defence already submitted to the court that you had identified the driver? Perhaps a redacted copy of your defence may help

Have you written your witness statement yet? You will include that in your witness statement and also reference the Hiyacar contract and include their paperwork at the time as an exhibit to strengthen the fact that someone else was the keeper.

As they are claiming from you as the keeper then the maximum they can claim is the amount of the original PCN + some limited, fixed, court costs. You argue that in front of the judge POFA 4 (5).

IF it does get to court and IF you lose and IF you fail to pay within a month then only then will you have a CCJ against your name.

[jr55]

That's amazing - thank you so much.

The other solicitor has communicated this to me

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The Protection of Freedoms Act 2012 Schedule 4, Section 56 Recovery of unpaid Parking Charges states the following:
“The creditor (our client ) may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement”.

As far as my client is concerned, you have not provided the “threefold documents “as stipulated by the above legal provisions within the 28 days of the PCN being issued.

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Are they claiming that you have to submit all 3?

[ostell]

No, they are claiming that you have not complied with a completely different section of POFA that applies to hire company cars, section 13 (2). You are not a hire company, though you had hired the car out through a third party.

You are claiming that you have complied with the requirement to identify the driver at the time and therefore 5 (1) (b) is no longer true and there can be no keeper liability. This provision is without limit, other than the start of proceedings.

Did you actually name the hirer of your car as the driver? If you completed their form section for who was driving, and not just say you weren't, then that should be sufficient. You can point out to the solicitor that you are relying on 5 (1) (b) and therefore his client has no case. I think your mention of hiring etc has clouded the issue somewhat.

Here's POFA

[jr55]

Thank you - I did give details of the other driver so confident that I am not liable.

[ostell]

So what was your defence that you submitted to the court?

A redacted copy of the PCN would probably be helpful

[jr55]

Hi - sorry for delay!

Here is my statement



In September 2017, I received a notice from National Car Parks Limited (ref XXXXXX included in the witness statement of the claimant), informing me that I had incurred a parking penalty for parking at one of their car parks. At the time of the infringement, I was renting my car through the third party car hire firm Hiyacar. As I was not driving the car, or present, I did not enter into any contract with National Car Parks Limited, did not accept their terms and conditions and am not liable for this charge.


On receiving the said notice, I filled in the section of the reverse of the notice (“what if I wasn’t the driver”), giving the name and address of the hirer of the car, and sent back by first class return the same day I received the notice.


Despite me informing National Car Parks of the fact that I was not driving or in the car at all, they have continued to pursue me for the charge. This has led to the court action, of which I have had to devote considerable time to defending.


I include in this statement the hire agreement provided to me by Hiyacar which confirms that I was not driving the car on the day of the alleged contravention.


I would like the money claim set aside.


I believe the facts in this statement to be true.


Signed





Dated this 20 day of January 2019

[ostell]

POFA states that the keeper is liable for the charge. It also define the keeper as " “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper". You have shown that someone else was the keeper, as well as the driver, at the time of the alleged breach. You can reference the statement to this effect from the hiring company when you create your witness statement.

Was the statement in post #9 your defence and have you sent it or is it your witness statement.

[jr55]

Hi - it's my draft witness statement - I was planning on sending it in today.

[ostell]

You need to amend that to the format required. Numbered paragraphs and a link to the exhibits you will be providing (the letter from the hire company). Exhibits labelled xxx01 etc where xxx is your initials. This is the time to introduce them

eg
I include in this statement the hire agreement provided to me by Hiyacar, exhibit xxxnn, which confirms that I was not driving the car on the day of the alleged contravention and mr nnnnnn was both driver and keeper at the time.

The statement about setting aside is not a witness statement and shouldn't be there

[jr55]

Many thanks - have amended the statement as suggested.

[jr55]

I am due in court on monday about this. The only thing that concerns me is that I sent the initial response to NCP (notifying them that I wasn't driving and naming the driver) by post, and NCP claimed they never received this. What would be the best defence I can put forward in response to this?

[ostell]

Did you notify them more than once?