Parking Charge Notice from VCS - have Parking Ticket

Loadsofchildren123 wrote: »

If you keep your powder dry and hope that they make a mistake which means there's no keeper liability, and if they do make a mistake then your friend has a good defence that he is not liable as RK and was not driving so cannot be liable as driver.


If you keep your powder dry hoping for a mistake that they don't make, then friend becomes liable as RK. He then has to defend on basis that the claim is flawed because of the fluttering ticket defence (possibly other defences based on signage as well).


Either way, you will have dropped your friend in it. Whichever way he defends (not liable as RK, or liable but claim fails because of fluttering ticket argument) he's not going to thank you for making him defend a court claim.


In reality, assuming POFA is complied with and he becomes liable as RK, what he'll do is rely on YOUR evidence as driver. You'll then out yourself at that stage. But he remains liable as RK. You will have to support him in any claim by making a statement with all the fluttering ticket stuff. But the claim will still be against your friend, not you. Even though you'll effectively take "the lead" in any claim by providing all the evidence, it will be against him. He will therefore HAVE to attend court (if it gets that far - VCS do tend to pursue claims). And so will you (as a witness). You'd obviously have to clear all this with your friend and he may not be willing to go along with it.

So that sounds to me like the stage I'm at (RK received NTK, Replied to them denying to provide information and denying the claim citing the fact of having a valid ticket, they subsequently replied offering arbitration) that I've actually caused the RK to be liable and outing myself at the moment, whilst probably not causing me issues, won't alleviate the responsibility laying at the feet of the RK?

Coupon-mad wrote: »

Not with a non-compliant NTK.

Yes, as stated on other threads like this, it has the 28 day period wrongly stated, you only need compare the words to Schedule 4 paragraph 8.

Search the forum for 'myparkingcharge.co.uk VCS 28 days' or similar, and you will find it said already.

I don't know if they've sorted this out then, because the wording on my letter looks like it conforms now. It's virtually word for word from http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

"(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;"

Their letter reads:

"Please be warned: that if, after the period of 28 days beginning with the day after the Issue Date of this Notice, the amount of the unpaid Parking Charge specified in this Notice has not been paid in full and we do not know both the name of the driver and a current address for service for the driver, we will have the right to recover from the registered keeper, any unpaid balance of the Parking Charge. This Notice will be deemed to have been received by you on the second working day after the Issue Date stated above unless the contrary is proved."


I appreciate this has probably been answered and there is some subtlety I am missing, but I've not been lazy with this. I've gone round this forum and peepipoo and there is definitely contradictory information which, were I the owner wouldn't really be a problem, as I'd be both driver and RK so no problem, but it's just left me confused about the finer detail of this.

But as per the above, it did look to me like they are following correct protocol and I don't have the level of knowledge on this subject to know if I'm missing something. From everything I've read it just does look like they are following correct procedure.

So I don't know where I stand, in that - have I dropped the RK in it because VCS are doing it right and it's now outside of 28 days?
If that's the case should I try naming myself to take the burden off of him or will they still just pursue him anyway?

Have they got it wrong and there's nothing to worry about?

In either instance though might my mate end up with a court date trying to defend this all because I've approached this wrongly?

As per Loadsofchildren -
"Once POFA is complied with the RK becomes liable after the NtK is served, as if he were the driver, even if the driver is later identified. The PPC can therefore choose to claim against RK or driver. If POFA is complied with, the RK is only absolved of liability if he identifies the driver BEFORE the NtK period ends.

All things considered, UNLESS you think RK has a good POFA defence which makes the NtK non compliant, then RK should out you as driver to absolve himself of any liability under POFA."

The driver has not been identified BEFORE the 28 day period.
Unless I'm missing something they are POFA compliant.

So I'm a little stressed I've dropped a clanger and dropped my mate right in it.

Coupon-mad wrote: »

I agree, they've used POFA compliant wording there. How very annoying. It could be argued the 'fake PCN trick' is a Parking Charge even though they say it is not, but a Judge might not understand the nuances.

If it is considered a 'PCN' then they should have waited till day 29 to get your data but the DVLA are aware of this conduct and haven't banned it, and seem to have swallowed the line from the IPC that 'this isn't a parking change/notice to driver' (absolute balderdash, IMHO!).

Yea that was the first thing I thought, but apparently the DVLA have ruled that this is acceptable...which personally I think is disgraceful!

Coupon-mad wrote: »

An email or letter should be sent (and keep proof) from the keeper now, if you want to be named as driver. There is NO DEADLINE to transfer liability in the first 28 days, in fact Schedule 4 says that part 'ceases to apply' when 'proceedings commence'. So, before court claims commence, a keeper CAN lawfully write to transfer liability (name and address of the driver).

Even if the PPC reply and say it's too late - they are lying.

Don't write yourself, the keeper needs to transfer liability and keep proof (free cert from the Post Office, not signed-for, not recorded, not special delivery).

Excellent, thanks for that! I'll reword the letter to be from the RK and just pass liability on to me.

Feeling much calmer now!

VCS Ltd
Central Payment Office
P.O. Box 4777
Sheffield
S9 9DJ
06/09/2017

Dear Vehicle Control Services,
Re: *REF NO*

I wish at this point to give information of the driver at the time being *DRIVER* of *ADDRESS*. Please direct all further communications to *HIM/HER*.
*HE/SHE* has asked me to detail the following in relation to the appeal:

You have suggested we use the non-standard appeals service offered by the IAS. This service does not meet the statutory requirements for an ADR Entity. These requirements are listed in Schedule 3 of The Alternative Dispute Resolution for Consumer Disputes Regulations 2015 and the requirements not met are as follows:

5c (c) its ADR officials, the method of their appointment and the duration of their appointment;
7(c) ensures that the parties may, within a reasonable period of time, comment on the information and documents provided under paragraph (b);

13. The body may only refuse to deal with a domestic dispute or a cross-border dispute which it is competent to deal with on one of the following grounds—(a)-(f)

4. The body has in place the following procedure in the event that an ADR official declares or is discovered to have a conflict of interest in relation to a domestic dispute or cross-border dispute—
3(a) ensures that an ADR official possesses a general understanding of the law and the necessary knowledge and skills relating to the out-of-court or judicial resolution of consumer disputes, to be able to carry out his or her functions competently;

5c fails because the names of the assessors are kept secret.

7c fails because the operator is allowed to introduce new evidence which the motorist is not allowed to comment on

13 fails because the service refuses to deal with disputes from vehicle keepers in Scotland. This is not one of the categories for which refusal is allowed

4 fails because there is a fundamental conflict of interest. The service is masterminded by Will Hurley and John Davies. These two people are also directors of Gladstones Solicitors who file large numbers of claims on behalf of operators. They therefore have a financial interest in motorists failing appeals so they can then lure operators into filing a court claim.
3(a) fails because the assessors do not understand parking related law or consumer law. I quote a recent decision which illustrates this, where the assessor decides that the requirements of the Protection of Freedoms Act 2012 do not have to be met for keeper liability to apply:
Non-compliance with POFA 2012. From the same case[1], Moore-Bick LJ said that the provisions in the POFA strongly supported the conclusion that Parliament considered it to be in the public interest that parking charges of this kind should be recoverable.

[1] ParkingEye v Beavis

Obviously an appeals service where the assessors decide that the statutes do not apply, and misquote case law in this way, is not fit for purpose. It is of course ironic that the assessor is saying that the very existence of POFA 2012 is proof that the actual requirements of POFA 2012 can be ignored. No wonder the assessors do not wish their names to be known.

The DVLA and the CTSI are well aware of the shortcomings of the IAS appeals service, which is currently being investigated by both of them. The legislation does give an ADR Entity six months to improve its processes and meet the legislation.

I therefore believe that the IAS is not a fit body to use until both the DVLA and CTSI have finished their investigations, and the body has changed its processes to meet the legislation. I would be prepared to wait until this point in time if you agree.

Failing that, I propose that instead of the IAS, we use an ADR Entity which does currently meet all the regulatory requirements right now. One such body is the Consumer Ombudsman available at this website http://www.consumer-ombudsman.org/
I propose we use this body. Please note that practice directions state the court may impose sanctions if you unreasonably refuse to use a form of ADR, or fail to respond at all to an invitation to do so.

Yours,

*RK*

I'll come back and update how it progresses for anyone having problem in the future to search on.