Parking charge - excess stay in "free" car park

iowens

Thanks for that - so I don't even have to state when the NTK was received - just that based on the date on the postmark shows that parking charge is invalid in accordance with requirements defined in POFA2012. - Assume that the suggested wording is in the templates.

Carthesis

No, the templates in the **NEWBIES** thread don't give suggested wording for this. They are generic and designed to be applied to any and every situation.

In this case, you have a specific point you're trying to get them to kick out on, so you need to hammer them with it.

As i said in POst #2, click on my username and search through my posts, you'll find a letter I drafted for someone else in similar circumstances - where the mandatory POFA2012 period had expired - stating that the PPC has exhausted their options for RK Liability. Use that as a starting point.

iowens

Have hunted through the posts by Carthesis but couldn't find a letter relating to a late NTK, all I could find was:


"
You need to add in that they have exhausted their avenues for transfer of liability to the registered keeper under POFA(2012) Sch. 4 as they have not complied with the mandatory timescales for service of a Notice to Keeper following an alleged parking infraction. As such, they can only pursue the driver, assuming they can demonstrate who the driver was at the time.
"
as a suggested addition to the standard "blue text" letter template. Can you point me in the right direction of the letter to use when NTK has not arrived within permitted timescale if this is not the correct one.
Thanks

Redx

just alter it slightly and add it to the blue text appeal in the NEWBIES sticky thread, as extra wording

Carthesis

There is another one where there were some other issues as well, and then there was a section of the letter starting "Notwithstanding the above... "

But yes - as RedX says, the text above is the basis of the argument. Combine it with the other information that has been posted in this thread, and that's your appeal letter.

Personally, I think I'd be tempted to leave out the other 'reasons' stuff in the template letter and just tell them that they haven't complied with the timescales hence no RK Liability, and that E-v-L cannot and does not apply (reference a couple of cases from PP blog), and then quote Henry Greenslade.

WHAT IS CRITICAL HERE IS THAT YOU MAKE NO STATEMENT OR INFERENCES AS TO WHO WAS DRIVING!

iowens

Okay, sounds good - will compile something along those lines.
I have scanned the envelope which is franked with the date of 25 Nov - would you suggest I include that with the appeal ?

Guys_Dad

Franked on the 25th? What is the date on the NtK? I bet they will claim it was posted on the date on the NtK so hang on to the envelope. They are out of time.

iowens

"Issued date" on the NtK was shown as 24 Nov 2016

Carthesis

In fact - just so I've got somewhere convenient to refer people in similar cases where this is the appeal point, I'm going to write the letter in draft here:

Dear {name of PPC}

PCN number: {your PCN number here}

I write to challenge the above referenced PCN as the Registered Keeper of vehicle registration XX 22 XXX. I deny liability for any sum at all.

[for a windscreen PCN followed by a postal Ntk - DELETE AS APPROPRIATE]

I contend that you have failed to establish Keeper Liability, as you have not complied with the mandatory timescales laid out in 'The Protection of Freedoms Act (2012)' [PoFA(2012)], Schedule 4, Paragraph 8. This states that:

When a windscreen notice (a Notice to Driver or NtD) is issued, an application for Keeper details may be made with the DVLA following the expiration of the 28-day period beginning with the day after the day on which the NtD was issued. The Notice to Keeper (NtK) must then be delivered to the current address for the Registered Keeper within the relevant period, defined as the 28 days following the initial period of 28 days for the NtD. (para. 8, sub-paras. 4 and 5).

In this case, the timeline of events is as follows:

- date of alleged infraction / date on NtD: xx/yy/zzzz
- first date of Keeper data application: {+28 days}
- date by which NtK must be delivered for Schedule 4 to apply: {+56 days}
- date of NtK generation: xx/yy/zzzz (if known)
- date of NtK postage: xx/yy/zzzz (if known)
- actual date of reciept of NtK: aa/bb/cccc


[for a postal Ntk *ONLY* - DELETE AS APPROPRIATE]

I contend that you have failed to establish Keeper Liability, as you have not complied with the mandatory timescales laid out in 'The Protection of Freedoms Act (2012)' [PoFA(2012)], Schedule 4, Paragraph 9. This states that:

When a postal Notice to Keeper (NtK) is issued, an application for Keeper details may be made with the DVLA immediately, but the Notice to Keeper (NtK) must then be delivered to the current address for the Registered Keeper within the relevant period, defined as the 14 days beginning with the day after the day on which the alleged infraction occurred. (para. 9, sub-paras. 4 and 5).

In this case, the timeline of events is as follows:

- date of alleged infraction: xx/yy/zzzz
- date by which NtK must be delivered for Schedule 4 to apply: {+14 days}
- date of NtK generation: xx/yy/zzzz (if known)
- date of NtK postage: xx/yy/zzzz (if known)
- actual date of reciept of NtK: aa/bb/cccc

[END OF OPTIONAL SECTIONS]

As you have failed to comply with the mandatory timescales laid out in PoFA(2012), you have exhausted your options for transfer of liability to the Registered Keeper, and as such, can only pursue the driver.

There will be no admissions as to who was driving and no assumptions can be drawn. The case of Elliott -v- Loake (1982), as you are well aware, is not applicable, as this was a criminal case with abundant physical evidence which allowed the identity of the driver to be a finding of fact, hence not merely a 'presumption' in case law. I refer you to the recent cases of Excel v Mr C (C8DP37F1), Stockport, 31/10/2016, Excel v Mr L., Skipton, 17/11/2016 and VCS v Mr A. (C8DP70P3), Birmingham, 23/11/2016 which all found that E-v-L could not be applicable to private parking cases, and that there is no basis for pursuance of the Registered Keeper outwith the provisions of PoFA(2012).

Further, I draw your attention to the comments of Parking and Traffic Appeals Service (PATAS) and Parking On Private Land Appeals (POPLA) Lead Adjudicator and Barrister, Henry Michael Greenslade, who clarified that with regards to keeper liability, "However keeper information is obtained, 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." (p.12-13 POPLA Annual Report 2015).

As you have failed to establish Keeper Liability, to continue to process my data now that you have exhausted your only DVLA-allowed purpose (i.e. to invite me to name the driver, which I decline outright) would be wholly unreasonable and contrary to the Data Protection Principles. To share, sell, store or process my data at all now you are aware that you have no further excuse or reasonable cause, will be considered data misuse and will result in a complaint being filed with the Information Commissioner.

I require now that you issue me a letter stating that the charge has been cancelled; that no further action will be taken against me; and that you have now deleted all personal data which you may hold on me as you no longer have any requirement for it.

Do not send debt collector letters and do not add any costs, which would be a thinly-veiled attempt at 'double recovery' and is specifically prohibited by PoFA(2012) Schedule 4. I will not respond to debt collectors and to involve a third party would be a failure to mitigate your costs, as well as deliberate and knowing misuse of my data.

For the avoidance of doubt, I do not consent to my data being further shared or processed by you or your agents.

You should consider this letter a Section 10 Notice under the DPA. You are required to respond within 21 days.

Yours faithfully,

Guys_Dad

iowens wrote: »

"Issued date" on the NtK was shown as 24 Nov 2016

Earliest delivery date even using date on NtK is therefore 28th November, still well oiut of time. Game, set, match I think.