Airport charge notice help please

Umkomaas

Aligoose wrote: »

Can VCS rely on 'the PRESUMPTION that the registered keeper was the driver? As per their point number 9 or the ASSUMPTION that I was the driver as per their point number 10?

They can try - but Elliott v Loakes was a criminal case with forensic evidence and has been dismissed a number of times by judges in private parking cases. Do some searches on the forum for 'Elliott v Loakes', or 'E v L' to read about the case. Parking Prankster has also covered it in his blogs.

You need to understand the issue to be able to rebut it.

You might also want to research 'Combined Parking Solutions v AJH Films' as this is another one they might try to press the judge on. This was the case of an employer being held liable for the parking infringement of an employee while using a company vehicle. Not relevant at all in your case, but it won't stop them scraping any barrel bottom in an attempt to part you from your money.

The_Deep

If you are a single person and the only named driver on your policy they may stand a chance. However, if others are named on the policy then they may struggle.

In my case my wife and I share a car. It is registered in my name but my wife does about 80% of all shopping trips. It would be reasonable therefore for a PPC to assume that, in most instances, I was not the driver

nigelbb

Aligoose wrote: »

Can VCS rely on 'the PRESUMPTION that the registered keeper was the driver? As per their point number 9 or the ASSUMPTION that I was the driver as per their point number 10?

No, not least because the registered keeper is Hyundai & a company cannot possibly have driven the car.

Aligoose

Please could someone take a look at my proposed response to the IAS.......

In response to the reply from VCS I would like to add the following to my earlier appeal regarding the lack of compliance with schedule 4 of PoFA. 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 as no evidence has been produced then a parking charge cannot be enforced against a keeper without a valid Notice to Keeper or Notice to Hirer.

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.

The burden of proof rests with the Operator, there is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. 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 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. .

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. VCS refer to Elliott v Loake but I fail to see the similarity with this case. My understanding is that the case referred to was a criminal matter in which forensic evidence was used to assist with identifying the driver of a vehicle

In addition the cctv evidence provided by VCS does not correlate to their claim that the vehicle was stationary for 106 seconds. Their time stamps show the vehicle at 12:04:30-12:05:07 a significantly shorter time of 37 seconds.

VCS at point 12 refer to no details of mitigation being provided to explain why the vehicle was stationary however in my initial appeal to VCS I informed them of the following: I would like to note that on the date this charge notice refers to (09/01/17) the driver had dropped off airport passengers in the designated car park and after departing the car park it was necessary to pull over momentarily. It was not a premeditated act to allow anyone to alight from or return to the vehicle. The driver opted for the safest place where they would cause no obstruction for the minimal amount of time that they were present.

In VCS's response to my appeal they failed to mention the mitigating circumstances or to request any further information about why it had been necessary to stop the vehicle as they simply responded with an inaccurate pro-forma letter which appears to support the notion that there was never any intention of providing a fair appeal process.

I would also query whether the land in question is covered by airport bylaws and whether this has any bearing on whether any alleged infringements should be dealt with under criminal law rather than civil law.

As previously stated I would request that you uphold my appeal against this charge notice.

---

Any thoughts on whether this is ok for the IAS stage?

Coupon-mad

I would not use any template wording for IAS.

What evidence are you going to attach/upload? For example if you are saying you weren't driving you need to prove that to the IAS. If you are saying the PPC didn't follow the POFA, you need to upload a scan of both sides of the NTK to prove it (unless they already produced one in their 'prima facie case'...).

If talking about VCS' response to your appeal you need to show that letter (unless VCS already did).

etc.

I would also query whether the land in question is covered by airport bylaws and whether this has any bearing on whether any alleged infringements should be dealt with under criminal law rather than civil law.

Pointless querying something - the IAS are never going to assist. They will expect you to state and prove that the road is covered by statutory byelaws and show how the sections of byelaws assist your appeal.

Your burden of proof is roof-height, whereas VCS just need a foot in the door and they will win. That's how the IAS 'works'.

You need to be much, much more assertive and with evidence, blow by blow. No template.

Aligoose

Thanks for the advice.
To be honest I'm struggling quite a bit with this. I've been looking at so many threads that I think I'm getting a bit confused about where my best challenges sit.

I've already uploaded the NTK to IAS to show the lack of compliance with PoFA and I'll upload VCS reply to my initial appeal to show it was clearly a standard rejection letter with no consideration given to my mitigating circumstances.

As I have to submit my reply to IAS by tonight I'm not going to get my head around all the points I might be able to challenge on-bye laws,contract, signage etc so if I keep the IAS appeal to the fact that they haven't shown who was driving and can't presume or assume that it's me, they have failed to consider my mitigation and have not provided cctv evidence to substantiate their claim of how long the vehicle was stopped would I be able to address other issues such as bylaws etc of the matter goes to court?

Umkomaas

Without dealing with all the issues provided by CM's advice, why are you even thinking about appealing to the IAS?

Even if you gold-plated all of CM's points, there's a more than likely chance it would still be rejected by the IAS. What you're now likely to go with is a lamb to the slaughter offering. It will be rejected.

Why give the PPC an IAS decision in their favour so they can wave this in front of a judge? Please go back to the NEWBIES sticky, post #3 and read the cons and cons of appealing to the IAS.

Aligoose

I have already started the appeal process with IAS following earlier advice on this thread that I might have a point to make regarding the failure of VCS as far as the lack of a notice to hirer is concerned so I submitted my IAS appeal and then received the reply above which I have until midnight to respond to. I have already uploaded the NTK to show the lack of compliance with schedule 4 and I will also upload the VCS pro-forma letter to show their lack of acknowledgement of the mitigating circumstances. I plan to include the points above relating to the fact that VCS cannot presume/assume that I was the driver and cannot rely on Elliott v Loake to do so. As they have not complied with schedule 4 they have not transferred liability to the keeper either.

I am asking whether anyone knows if I don't include a point in my IAS appeal would that mean that I can't use it in a Court hearing if it went that far?
If they did pursue me to Court, taking in to account that if bylaws apply then I understand that the airport have 6 months to do so.

The_Deep

Even if you gold-plated all of CM's points, there's a more than likely chance it would still be rejected by the IAS

Which would mean that a court would have every reason to treat it with a great deal of suspicion.

So why should not OP appeal to the kangaroo court? Doing so makes sound sense to m, especially as he/she is making all the right arguments. Any decision other than to allow the appeal would be perverse.

If I was in OP's position I would put in a single point appeal citing byelaws.

Aligoose

Thank you for your responses. I've decided to put in the appeal (I've started it so may as well finish it) so will see what happens.