DIR Return Create A Forum - Home
---------------------------------------------------------
FreeTrafficLegalAdvice
HTML https://ftla.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: Private parking tickets
*****************************************************
#Post#: 33792--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: b789
Date: August 19, 2024, 6:51 am
---------------------------------------------------------
--- Quote from: FaeLLe link ---
>
> PARTIALLY COMPLIANT – the underlined text is not covered.
Hence, the driver does not have the PCN if keeper did not know
legally they should have given it to them.
> But as per the previous post, I think a Judge might decide to
enforce the keeper's liability because the driver would have
received the notice in either case if they had been identified
by the keeper (the creditor would have re-issued the PCN).
> This could be risky as a ‘sole defence’.
>
--- End Quote ---
Overthinking is not going to get yo anywhere. You or HC Andersen
may "think" that a judge "might" decide to enforce keeper
liability but you are ignoring the fact that as long as you
point out to a judge, assuming this ever got as far as a hearing
in court, that the rules are the rules. The word "MUST" is
included in the Act for a reason. "FULL" compliance means just
that.
If the NtK does not FULLY comply with ALL the requirements of
the Act, then it cannot be relied on to hold the keeper liable
for the unknown drivers alleged breach of contract.
Hence the wording, "partial or even substantial compliance is
not sufficient". Only "FULL" compliance allows the keeper to be
liable. Is the NtK FULLY compliant with ALL the requirements of
the Act? No it isn't.
Anyway, it will not stop the greedy operator from trying it on
as they will put the following in their Particulars of Claim
should they file one: "The Defendant is pursued as the driver or
in the alternate as the keeper under PoFA 2012". One leg of the
defence is to deny keeper liability as per the argument above
and then the burden of proof is on the claimant to show that the
person they are pursuing is the driver. There is a ton of
persuasive legal precedence to show that they are not allowed to
infer or assume that the keeper must also be the driver.
As you have such a vested interest in this, have a read of the
following appeal judgments where keeper liability was refused:
VCS v Edward [2023] H0KF6C9C
HTML https://www.dropbox.com/scl/fi/yvxek3kfwtb3qent3lj6y/VCS-Limited-v-Ian-Mark-Edward-H0KF6C9C.pdf?rlkey=niecohfdtj1n1ysh5prbsp52p&st=shnxqsyn&dl=0
#Post#: 33797--------------------------------------------------
Re: PCM - Langley Square - PCN despite insufficient signage
(signs do not exist on site and were sprayed over)
DIR By: FaeLLe
Date: August 19, 2024, 7:13 am
---------------------------------------------------------
--- Quote from: b789 link ---
>
> [quote author=FaeLLe link=topic=2848.msg33786#msg33786
date=1724065543]
> PARTIALLY COMPLIANT – the underlined text is not covered.
Hence, the driver does not have the PCN if keeper did not know
legally they should have given it to them.
> But as per the previous post, I think a Judge might decide to
enforce the keeper's liability because the driver would have
received the notice in either case if they had been identified
by the keeper (the creditor would have re-issued the PCN).
> This could be risky as a ‘sole defence’.
>
--- End Quote ---
There is a ton of persuasive legal precedence to show that they
are not allowed to infer or assume that the keeper must also be
the driver.
[/quote]
Yes I agree. This was also tested in the UKSC for Road Traffic
offences within Cameron v Liverpool Victoria Insurance Co Ltd
[2019] UKSC 6, [2019] All ER (D) 103 (Feb).
It suggests that proceedings should not be issued against
persons unknown unless it is possible either to serve via a
method likely to bring proceedings to their attention or to meet
the high threshold for dispensing with service altogether.
There needs to be a reliance on a statutory scheme (PoFA
compliance as in our case) that requires the drivers identity to
be revealed.
---------------------------------------------------------
What did the Supreme Court decide within Cameron v Liverpool
Victoria Insurance Co Ltd?
The respondent’s claim against the unknown driver was struck
out, as he could not be described in a way that would allow him
to be identified, and there was no means of service that would
bring proceedings to his attention. The court emphasised that,
subject to statutory schemes to the contrary, alternative
methods of service still had to be such as would bring
proceedings to a defendant’s attention.
The court rejected the argument that it should allow the claim
to proceed so as to facilitate a direct right of action against
the appellant as the insurer of the culpable vehicle, which was
arguably required by EU law, on the narrow ground that the
remedy sought in the proceedings was not a direct remedy, but
rather a right to a judgment against an unknown driver which the
appellant would simply have a statutory obligation to meet
thereafter. The court therefore did not decide whether the UK
had failed to transpose EU law correctly by failing to create a
direct right of action against an insurer in a case where
insurance could be identified but a driver could not.
---------------------------------------------------------
--- Quote ---
>
> As you have such a vested interest in this, have a read of the
following appeal judgments where keeper liability was refused:
>
> VCS v Edward [2023] H0KF6C9C
HTML https://www.dropbox.com/scl/fi/yvxek3kfwtb3qent3lj6y/VCS-Limited-v-Ian-Mark-Edward-H0KF6C9C.pdf?rlkey=niecohfdtj1n1ysh5prbsp52p&st=shnxqsyn&dl=0
>
--- End Quote ---
For sure I will be reading this tonight in full.
*****************************************************
Page 2 of 2
DIR Previous Page