Is my NTK PoFA 2012 compliant?

Coupon-mad

If VCS are pursing the registered keeper on the assumption they were the driver and not by means of PoFA, which will be uphelp by IAS in the absence of any proof to the contrary, how does that stand up in court with the whole innocent until proven guilty mantra?

It stands up fine in small claims (better than at IAS as there is perceived wisdom among some that there have been decisions which suggest an alleged element of bias). I couldn't possibly comment...

Also if it went to Small claims what's the betting that the stupid PPC would try to address it under POFA...and they can't in this case! Every chance they'd overlook the fact they are only after the keeper to get the driver's name because that's the wording they chose on their NTK.

At small claims you would simply have ready, this sort of response, if asked:

https://forums.moneysavingexpert.com/discussion/comment/67050835#Comment_67050835

You are not babbling - Rob, you seem to really get it! Stick around and help others!

HTH

rob.j.jackson

It stands up fine in small claims (better than at IAS as there is perceived wisdom among some that there have been decisions which suggest an alleged element of bias). I couldn't possibly comment...

Are you saying that they can get away with assuming the keeper was the driver with no need for proof in court? I’m beginning to think i am very naive when it comes to this country’s legal system if that is the case. I always assumed thing were fair!

So what constitutes 'proof'? I am assuming a signed statement from someone collaborating the whereabouts of the keeper at the time of the event would do. What if the keeper was at home alone? Would a signed statement by a third party who was with the driver, stating the keeper was not the driver but not naming the actual driver be sufficient?

Am I over analysing this and would I be better addressing these issues if and when it is taken to court.

Anyway, I feel I’m now delving into a debate on legal principals now, which is possibly not what this thread or board needs! As mentioned above, I shall put together an appeal letter over the weekend and post on here for comment.

On an alternative note, and with a view to giving something back to the forum, I recently drafted a letter of appeal to Highview Parking with regards to a PCN that came through the door from an ANPR camera detected offence. Both this appeal and one other appeal (two cars,same place, same offence) were successful at the initial appeal to Highview using this letter, without he need for POPLA. I can only assume something in there must be worded correctly. I can take no real credit for information within, it was simply a cut and paste exercise from several sources, including this forum. Where would be the best place to share this letter with the forum in the off chance it can help others?

Once again thanks for all your help, it is very much appreciated.

Rob

bod1467

rob.j.jackson wrote: »

Are you saying that they can get away with assuming the keeper was the driver with no need for proof in court?

C-m said nothing of the sort. IF you prefix the word "kangaroo" to the word "court" then you get the IAS appeals.

In REAL court such assumptions can NOT be made.

PS - If you are deliberately applying formatting [font, colour etc.] to your posts, please don't ... it makes it a nightmare trying to quote selections of your post!

rob.j.jackson

Ahhhh, sorry my confusion. I read this....

It stands up fine in small claims

...to read as the assumption that the keeper was the drive would be accepted by the small clains court without proof, ie the court would side with VCS in this respect.

Im not sure what is going on with the formatting, other than splitting the text into paragraphs and adding spaces to aid reading i am not adding anything special - no colour or fancy fonts.

Cheers,
Rob

Coupon-mad

Sorry for any confusion - hope you understand what I meant; small claims is winnable by a keeper and I linked what a keeper can say in REAL court, if asked. It's the IAS who will 'assume' in favour of the PPC (shockingly) unless you can prove you were not driving. IMHO the IAS completely overstep the mark in that respect, seeing as Parliament stopped short of forcing keepers to name drivers. So the IAS just takes it upon themselves to ignore that.

rob.j.jackson

Hi,

I have come up with an appeal letter to send to VCS, which is basically a cut and paste job mainly using the suggested text from the newbies thread. Can you kind, knowledgeable people please advise if there is anything I should change? I realise it is probably a bit over the top for this stage but I'm hoping it might show VCS that I mean business!!! lol

As always your help is greatly appreciated.
Rob.




Dear Sir / Madam,

Re: PCN No. xxxxxxxxxxxx
Car Registration: xxxxxxxxxxxx

I challenge this 'PCN' as keeper of the vehicle, on the following grounds. Please respond to each individual point that I state.

a). Your ‘Notice’ fails to comply with POFA 2012 and therefore I, as registered keeper of the vehicle, cannot be held liable for any parking charge. The ‘Notice' also breaches the Consumer Contracts (Information, Cancellation and Additional Payments) Regs 2013.
b). The large sum demanded amounts to a penalty and is not a genuine pre-estimate of loss suffered so it is not a reasonable charge. Your monetary claim is disproportionate, punitive and unjustifiable in total. It may also be an unfair term and therefore in breach of Schedule 2 of the Consumer Contracts Regulations 1999. Please provide a breakdown of how your demanded charge is calculated so that I can consider further whether it amounts to a penalty.
c). The alleged contractual breach can have caused no financial loss whatever to you or to the land owner but if you believe it has please set out the details clearly in your response. If you believe I have committed a trespass please substantiate your consequential actual loss.
d). The signage was inadequate, unclear & non-compliant with Schedule 1 of the IPC Code of Practice (COP). As keeper, I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
e). There is no evidence that you have any proprietary interest in the land.
f). There was no consideration or acceptance flowing from both parties and any contract with myself, or the driver, is denied.

The purpose of this communication is threefold:

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn in the absence of evidence. As such, you must either rely on the POFA 2012 or prove beyond any doubt who was driving - or cancel the charge. I strongly urge you to uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case. I will then escalate this appeal to the independent appeal service offered by your Trade Body.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal costs. Equally, I have incurred costs to date, for researching the law, reading your Notice and responding, despite a lack of contract. I calculate both my costs and yours to be under £15 at this early stage, therefore, this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 28 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £25 per hour plus my expenses.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged contract which was never properly offered or explained by you. The charge is not acknowledged, is not due and no 'service contract' from you was ever expressly requested. Neither the driver nor myself gave 'prior express consent' or any consent at all for any contract to exist and it is not for me to pay an extravagant sum just because you chose to foist unexpected and non-negotiated onerous terms upon me. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - IAS, then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies.

You have failed to provide the required information for consumer contracts in a 'durable medium' in advance and you have failed to obtain 'express agreement' from me or the driver before concluding your alleged contract. This is a form of specific consent which cannot flow from a sign and it seems AOS members have not considered the Consumer Contracts (Information and Cancellation) Regulations which apply now to every EU consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that consumer contracts from 13th June 2014 are clearly offered and express consent is obtained - not implied consent - in order to reach a level of consistency whereby foisting of contracts like this on consumers by stealth, is a thing of the past.

By replying to the challenge, you will also be acknowledging receipt, understanding and acceptance of points 2 and 3 above. If you do not now cancel, then I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs which are likely to exceed £100 if you ignore the fact I have cancelled the contract, should you now proceed to independent appeal and/or small claims court.

Only reply with a rejection letter if you understand and accept your future liability, since I have already openly indicated the main points of appeal and have pointed out that your contract breaches current UK Regulations which were introduced in 2014 to protect consumers in a consistent manner. I have also cancelled any contract that you may think exists. If you choose to refuse my drop hands offer, you accept liability for my expenses and time wasted on repeating my points at further appeal stage and in court if necessary.

Where sent by post I have obtained proof of posting. Where submitted online/by email I have kept a copy and this communication is clearly received by you unless proved otherwise. I look forward to your considered reply within 28 days and urge you to accept the drop hands offer and accept that I have cancelled any 'contract' because this resolves the dispute without cost.

If this challenge / appeal is rejected, to enable me to prepare a formal appeal to IAS please provide the following documentation:

A copy of your contract with the land owner which authorises you to act on their behalf in the management of this area.
A copy of the contract which you allege was entered in to.
Photographic evidence of the actual signs in situ, together with identification of the locations around the site where these signs are currently placed. Please also confirm the date when the photographs were taken (if not evident from the photographs themselves) and whether you have made any alterations to the signage since the photograph was taken.
A copy of the full terms and conditions for use of the land where the vehicle was allegedly wrongly parked.
A copy of your certificate of membership of the IPC
A copy of your protocol which your enforcement and CCTV operators are required to follow.
A copy of your standard appeal procedure and confirm whether or not it complies with the Arbitration Act 1996.
Full details of the owner of the parking area (if it is not already stated in the copy contract above) as I wish to send them a copy of my letter to you.
A copy of all of the images that you have of my vehicle. I understand that the Data Protection Act entitles me to all of this information.
A copy of your protocol for handling personal data such as images of my vehicle. I assume that such data is not disclosed to any third party (other than IAS in the event of an appeal) but please confirm this.

Please provide this information within 28 days of receipt. If you are unable to provide any of the requested documents please provide a reason for each omission.

Yours faithfully

xxxxxx

nigelbb

rob.j.jackson wrote: »

Are you saying that they can get away with assuming the keeper was the driver with no need for proof in court? I’m beginning to think i am very naive when it comes to this country’s legal system if that is the case. I always assumed thing were fair!

In court a simple statement that the keeper was not the driver will be sufficient unless proved otherwise as perjury is a very serious offence.

rob.j.jackson

Hi, thanks nigelbb. Perjury isn't an issue as the registered keeper wasn't the driver in this case.

Has anyone any comments about my appeal letter before I send it?

Should I wait until closer the deadline (11/12/14) to send it. Also, am I better posting a paper copy or is an e-mailed version Ok.

Cheers,
Rob

Coupon-mad

No point waiting and I would email it, if VCS still allow emailed appeals. Do NOT even read the auto response and don't copy it out here like some posters do. Please. It's an Auto response...!

rob.j.jackson

Hi all,

Hope you all had a good christmas/new year.

Well I finally recieved a rejection letter to my appeal as expected, however the reason for the rejection seems a little bit strange to me.

They state on the letter that they are pursuing the PCN on the assumption that the RK was the driver at the time and are therefore unable to accept the formal appeal as it was not submitted in the the timescales as set out on the PCN which was affixed to the vehicle. The appeal was made on 7th Dec as the RK in response to the NTK that came through the post dated 20th Nov (so within the 21 days stipulated on the NTK).

The rejection letter is linked here:
hxxps://www.dropbox.com/s/emu1qhf7fo5plxr/Appeal%20Rejection%20Letter.jpg?dl=0

I have also uploaded the NTK and signage to dropbox as recommended.

Sign:
hxxps://www.dropbox.com/s/by1tw7w7dqql8oq/Parking%20Sign.JPG?dl=0

NTK front:
hxxps://www.dropbox.com/s/3p22v7sa8cerno4/NTK%20Front.jpg?dl=0

NTK back:
hxxps://www.dropbox.com/s/njdt644j07t18im/NTK%20Back.jpg?dl=0

Any idea how I should proceed? There is no mention of any method of further appeal (IAS/POPLA) on the letter, it simply states that £100 needs to be paid or provide evidence that the RK was not driving (what this evidence would consist of I am not sure).

Thanks for any help/insight offered.
Rob