Excel PCN - no mention of POFA

Northern_b

Sounds good to me Guys Dad!

Would be grateful of the forum's thoughts on how to put this to the PPC then please?

I submitted the standard appeal on 20th August... Should I submit another with this additional point, or wait for them to come back and reply then?

Guys_Dad

Northern_b wrote: »

Sounds good to me Guys Dad!

Would be grateful of the forum's thoughts on how to put this to the PPC then please?

I submitted the standard appeal on 20th August... Should I submit another with this additional point, or wait for them to come back and reply then?

I take it you are still in the appeal with PPC stage. If so, then you should follow up with a 2nd challenge along the lines of.

Following my previous challenge dated dd/mm/yy. I have taken further advice and from that, I see that your NtK was sent outside the timescales laid down by the Protection of Freedoms Act 2012 that would enable you to envoke keeper liability.

Specifically, the alleged incident occurred on Friday 14th July. POFA states the following

(4) The notice (to Keeper) must be given by:
(a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted;
and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

This means that the NtK had to be delivered to me no later than Saturday August 8th. However, as that is a non-working day as defined by the legislation, the NtK should have been with me on Friday August 7th.

The date on the NtK is Thursday 6th August and as you can read from the legislation it is deemed delivered on Monday 10th August which is outside the POFA timescale.

This means that only the driver can now be pursued and as I was not the driver at the time and decline, as is my right, to name the driver, I am exempt from being pursued as keeper.

As a consequence, I now require you to do one of two things.
(a) cancel the charge
(b) issue me with a POPLA code and we will allow POPLA to take a view on this when I appeal to them.

I would advise you strongly to take the first choice as we both know that it will cost you the POPLA fee and the legislation supports me 100%. Perhaps some staff retraining might be in order?

Northern_b

Many thanks for that GD, have waited to post again until I had something from the PPC to update with...

Their response to original appeal (standard appeal letter from me on August 20th, I sent a further message re: their out-of-timescale notice on Sept 1st) is dated Sept 11th and fairly predictably disagrees with all of the points made in the appeal. It asserts that they "are proceeding on the reasonable assumption that you were the driver of the vehicle on the date in question unless you are able to prove the contrary." No mention made of POFA.

They refer to the Court of Appeals judgement on ParkingEye vs Beavis to "advise that our charges are neither extravagant nor unconscionable... are commercially justified and legitimately enforceable."

I'm happy to scan the full letter if it's of interest as an up to date example?

I now have until October 2nd to appeal to the IAS or to pay the charge, they say.

I would appreciate any reassurance re: awaiting a response to my second appeal submission on the 'out-of-time' PCN point, or any other action I should take at the moment. I note that they state "We will not accept any further appeals" - Might they try to ignore my second submission on this basis?

Guys_Dad

They can proceed on that basis if they like, but do look at the POPLA win reported by Van girl today on the POPLA decisions sticky.

They are bluffing you!

Having said that, there is a new POPLA regime that will handle your appeal and here is hoping they use the old POPLA and not IAS adjudication standards!!!

Umkomaas

Guys_Dad wrote: »

They can proceed on that basis if they like, but do look at the POPLA win reported by Van girl today on the POPLA decisions sticky.

They are bluffing you!

Having said that, there is a new POPLA regime that will handle your appeal and here is hoping they use the old POPLA and not IAS adjudication standards!!!

I'm afraid this is Excel - IPC members. So its second stage appeal is to the IAS who, unfortunately, use IAS adjudication standards!

Guys_Dad

:sad: OOPs !

I would still go with the single point saying that by missing the timescale to invoke keeper liability, the PPC has to prove that the RK was the driver and the RK refutes this. British law puts the onus on the accuser to approve their case (innocent till proved guilty) and as a newly appointed Alternative Dispute Resolution centre, you expect them to uphold that tenet of law.

Should they choose to presume the driver was the RK, and turn down the appeal where POFA standards were not met, then you will ensure this is brought to the relevant authorities.

Now I know this is not an ADR adjudication, but it is the same people and they need to abide by standards irrespective.

Northern_b

Hi All,

Having received no response to my second challenge back in September (on the out of time to invoke PoFA point) and happily ignored debt collection letters since (3 different companies I think!) I've now received something a bit different from Excel and BW Legal.

2 letters arrived together, one from Excel saying "Your account has been passed to our legal team", the other from BW Legal requesting payment of "the £100 PCN charge plus our Client's initial legal costs of £54 which are detailed in the car park terms and conditions."

"If you fail to make payment or provide reasons for non payment within the specified timeframe, we will seek Our Client's instructions to commence legal proceedings against you in the form of a County Court Claim Form in the County Court."

It seems similar to letters from BW Legal that gave ride to the responses by Gan and Hoohoo on the Pepipoo forums, but seems to have been updated to head off some of the arguments in those responses, notably:

i) The time frame to respond is 16 days.

ii) the "County Court Proceedings" section has been reworded (to be less misleading?)

[“In the event County Court proceedings are issued you will be liable for Court fees, further solicitors' costs and statutory interest. Shoud we successfully obtain a County Court Judgment (“CCJ”), this may have a detrimental effect on your future creditworthiness and employability. Our Client also reserves the right to commence enforcement proceedings against you for the recovery of the Balance Due”]

iii) Alleging that the initial legal costs of £54 are detailed in the car park terms and conditions.

Please can someone advise - Should the response still be as per the example letters referred to above or is the section referring to the content of BW's letter now moot? If they "seek Our Client's instructions to commence legal proceedings" might the next thing I hear be from the Court?

I intend to write to inform BW that Excel served the PCN outside the timescales to invoke PoFA (because they did!) and would obviously like to include any and all arguments in my favour but would appreciate any advice on what those additional arguments could be. Here's my intended letter:
>
Dear Sir/Madam

Ref: XXX

I note your letter dated 03/06/2016.

I deny any debt to your client and refer you to my correspondence dated 01/09/2015 to your client which is copied below.

You will note that your client has already been informed that I was not the driver and it had failed to meet the requirements of the Protection of Freedoms Act to pursue me as keeper.

This being the case I expect the charge to be immediately cancelled and all correspondence with myself relating to it to cease.

Yours Faithfully,
>

Any changes/additions please?

Many thanks,

NB

Coupon-mad

That will do, better to respond than not and Excel don't use POFA PCNs anyway so it matters not when they posted it.

Plenty of newbies fixate on the '15 days to serve a NTK' under the POFA and yet if it's Excel, VCS, Smart, CP Plus or CEL (to name a few) the timing really is just almost an aside, extra detail, because they can all only hold drivers liable anyway.

If they don't have Schedule 4 wording from para 8 or 9 of the Schedule in the NTK, then they don't comply, regardless of date posted. With Excel that's in-your-face obvious anyway and you need know nothing about Schedule 4 to realise why only the driver can be 'liable' because the NTK says exactly that.

Northern_b

I've had three more letters from BW Legal after sending my response above, admittedly that was at the last possible moment of the timeframe they set out.

The first of these was just another template letter saying I had neither paid up nor 'provided detailed grounds for dispute' within their timeframe. This was dated 18 days after my response.

The second letter (dated 27 days after my response, rec'd another 4 days later) was actually written to counter my response, but essentially stated that having refused to provide driver details at the time the contravention occurred their client is entitled under POFA to pursue the registered keeper.

The third (images below) has me more concerned as it's headed "Letter Of Claim" although it doesn't read very differently from all of the previous "scary" letters. Does it look like a genuine letter before action? Would the advice be to respond, again asserting that there is no keeper liability or does it look like Court action is indeed imminent and I should start to build a defence?

Thanks again in advance for any input,

NB.

Coupon-mad

Yes, could well be:

https://forums.moneysavingexpert.com/discussion/5460897

https://forums.moneysavingexpert.com/discussion/5461798

Doesn't mean you just pay though. Yes you would need to respond to that.