Appealed but didn't get a POPLA

ADringer

Hi,

To give a run through of my ticket history:

1. I got a windscreen ticket from UKPC for leaving the site of a free car park (I popped across the road to some shops) on 22/5/16.
2. I received a 'final reminder' letter dated 7/7/16.
3. I emailed UKPC on the 8/7/16 appealing and asking for a POPLA as per the email templates on this site.
4. I recieved a letter dated 4/8/16 stating 'In order to make a final decision regarding your appeal, please can you provide the drivers full name and address to our Appeals Department with 21 days of this letter

Now I'm not too sure how to proceed. I thought that by asking for a POPLA would result in me getting one but it didn't and I believe I shouldn't divulge the drivers details. So what should I do now? Ignore it so they make their final decision?

Thanks

Castle

Don't respond, but wait for their final decision which should include your POPLA code.

Was their "Final Reminder" called a NTK?

Fruitcake

This is a ploy in the hope you will give away the driver's details.

Ignore and await a PoPLA code, then appeal to PoPLA.

Coupon-mad

This happens all the time on UKPC threads, which you would do well to read in readiness for POPLA anyway, to crib from other people's POPLA appeals. Search 'UKPC driver letter' or 'UKPC POPLA'.

But as regards that letter, of course, sit tight. The POPLA code & 'final decision' is what you want.

ADringer

Castle wrote: »

Don't respond, but wait for their final decision which should include your POPLA code.

Was their "Final Reminder" called a NTK?

It didn't mention it anywhere, but does say 'we wrote to you previously...' even though this was the first letter I received so I assume the one they supposedly sent was the NTK

Coupon-mad

I think their letter is a template (in fact I know it is) so the words 'we wrote to your previously' can be taken with a pinch of salt. They didn't.

ADringer

Hi all,

I received my POPLA code today

So I've been looking at the templates and have the following below so far. One other point that I haven't added (though I imagine it's quite a major point) is that they don't actually have any evidence that I left the site. The photographs they took only show the car so they can't actually prove i left. Should I add that as another point?

Thanks

---

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxx and am appealing a parking charge from UKPC on the following points:


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice


1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLAbut in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement

ADringer

In addition, this is the photo they are using as evidence of signage. It's difficult to see the the cost of the charge (not even sure it's on there!). Can I use this as well?

Can't add links as I'm a new user so remove the space:
http /!!!!!!/2d7WH54

Coupon-mad

Great, yes you must use that sign in your POPLA appeal, the charge and terms are illegible:

https://www.ukpcappeals.co.uk/resources/Temp/fYBNfaYc1330561431155lp15xvefYBNfaYc/9012553zhKiKNnH15Bx.jpg

So you can grab the 'unclear signs' POPLA template wording from 'POPLA Decisions (penultimate page, one of my posts there from September). And add a line mentioning how illegible this sign is and embed the picture into your word document to illustrate it and break up the wall of words for the POPLA Assessor. Make it easy to read and see what's what.

And yes, have a final point:

No evidence that the driver and/or occupants of the car left the site, nor is there any map or definition of 'the site' boundary on any signs

Then expand on that a bit without saying who was driving. Just saying UKPC have provided no evidence of any contravention at all nor defined what constitutes 'the site' nor how a driver could have known. You could also mention VCS v Ibbotson and link it:

http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231)

...making the point that (even since the Beavis case which changed nothing in this regard) it is incumbent upon a parking employee to mitigate loss, not 'sit on their hands' and just watch a person allegedly walk 'off-site' (not that the site is defined on any map/sign). To then pounce with a huge penalty when they could have stopped the driver if they allege he/she left the site, is against contract law and unfair business practices as well as contrary to the CRA 2015.

Read the link to understand that point about an employee's duty to mitigate any loss; it's a great case to read!!

Umkomaas

ADringer wrote: »

In addition, this is the photo they are using as evidence of signage. It's difficult to see the the cost of the charge (not even sure it's on there!). Can I use this as well?

Can't add links as I'm a new user so remove the space:
http /!!!!!!/2d7WH54

http://!!!!!!/2d7WH54

Always include signage in a POPLA appeal. The one you've linked is a 'forbidding' sign (No Unauthorised Parking) - you cannot contract for something that is forbidden. Read the following:

http://parking-prankster.blogspot.co.uk/2016/05/bargepole-spanks-ukpc-in-court-no.html

I think the POPLA Decisions sticky (last couple of pages) includes a near-template Signage appeal point written by Coupon-mad - adapt to suit (without inadvertently identifying the driver).

UKPC are likely to pray-in-aid the Beavis case, so you need to head that off in your appeal. Here is a very detailed Beavis rebuttal. But this was for a P&D car park, so you will need to carefully adapt to make sure it fits with your case.

http://forums.moneysavingexpert.com/showpost.php?p=71071381&postcount=15