Parking fine using ANPR - Protection of Freedoms Act not followed?

paggers6394

Hi all.

Just looking for some advice re. two parking charges I recently received on private land. I believe that Park With Ease Ltd haven't been compliant with the Protection of Freedoms Act (2012), and as such I'm not permissible to pay the fine. Apologies as I know there is a lot of stuff on here regarding parking but I want to be sure in this individual case.

As ANPR was used no Notice to Driver was given, and a Notice to Keeper was sent in the post. The Notice to Keeper (both times) were not sent within the 14 day period (beginning on the day after the alleged parking). Therefore as they're writing to me as the keeper, I do not have to accept liability - is this correct? As the keeper I declined to name the driver, as I believe is permissible with impunity.

Secondly, the Notice to Keeper also stated that I had 14 days in order to receive the reduced amount of £25.00, however, this amount was increased to £50.00 14 days from when the letter was dated, but this was only 10 days from when I received the Notice to Keeper.

Below is the letter that I sent to them, and I await a response. Any advice welcome, thanks.

To Whom it May Concern,

I am emailing you regarding two Parking Charge - Notice to Keeper letters that I have received, as the keeper of vehicle XXXX XXX.

I have posted two letters to your Appeals department, however, it is my understanding that you may respond quicker to emails. In receipt of this email you no longer need to respond to my letters responding to these Parking Charges.

I am concerned that the Protection of Freedoms Act (2012) (POFA 2012) has not been adhered to in the processing of these Notice to Keeper letters.

As a Notice to Keeper has been served using Automatic Number Plate Recognition (ANPR), and is alleging the keeper's liability in the absence of the driver's details, and I quote from the Notice to Keeper: "As the registered keeper of the vehicle you are now invited to: (i) Pay the unpaid Parking Charge; or (ii) if you were not the driver of the vehicle, to notify us of the name of the driver and a current address for service for the driver AND pass this Notice on to the driver", the POFA (2012) does apply.

In dealing with both of these parking charges I believe that the POFA (2012) has not been followed and therefore I no longer hold liability for these fines.

Paragraph 6 of the POFA (2012) states that:
“(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 the driver in accordance with paragraph 7, followed by a notice to the keeper in accordance with paragraph 8; or
(b) has given a notice to the keeper in accordance with paragraph 9.”

As no Notice was given due to the use of ANPR paragraph 9 applies and states that:

“(4) The notice 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 by the keeper so that it is delivered to that address within the relevant period.”

Further, paragraph 9 also states:
“(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.”

In regards to PWEXXXXXX:

As the parking charge relates to parking on the Sunday 21st May 2017 the 14 day period begins on Monday 22nd May 2017, and ends Sunday 4th June. I did not receive the Notice to Keeper, dated Friday 2nd June 2017, until Tuesday 6th June 2017. This was therefore after the 14 day period required under the POFA (2012).

In this instance I also did not receive the full 14 days set out in the Notice to Keeper to pay the discounted rate of £25.00. On the Park with Ease Ltd website I became aware that the charge had risen to £50.00 on Friday 16th June - this was 14 days from the date of the Notice to Keeper, but not 14 days from which the date it was received. Therefore, I have also not received the correct period to pay the discounted rate as is set out by yourselves in the Notice to Keeper, should I wish to do so.

In regards to PWEXXXXXX:

As the parking charge relates to parking on Saturday 27th May 2017 the 14 day period begins on Sunday 28th May and ends on Saturday 10th June 2017. I did not receive the Notice to Keeper, dated Monday 12th June 2017, until Wednesday 14th June 2017. This was therefore after the 14 day period required under the POFA (2012).

Therefore as Paragraph 6 of the POFA (2012) were not abided by in both cases, as the keeper, I am not liable to service these charges. Please therefore clear my name as the keeper of this vehicle from your records.

As is legally permissible I decline to name the driver with impunity.

Yours faithfully"

Redx

apart from this thread https://forums.moneysavingexpert.com/discussion/5667807 being about a BPA member and not an IPC member, its similar advice

ie:- they dont have to conform to POFA , but if they dont then the keeper is not liable, as you say

in which case any appeal should not divulge the driver

so I think that your appeal (s) are peobably ok , but this wont necessarily stop them from pursuing you further, but if they do then they have to prove that the keeper is the driver (not assume , but prove)

so if you read the NEWBIES sticky thread, the short story is as follows

the keeper appeals using something like the above, OR uses the IPC template from the NEWBIES sticky thread (which we would have recommended that you do)

after that , its IGNORE anything EXCEPT an LBC or an MCOL from Northampton, within the next 6 years

paggers6394

Thanks for that speedy advice. So now I have sent that email off (I did yesterday), if they respond, I should just ignore it? Or is it worth using the IPC template as well/if they get back to me?

Thanks again,

LP

Redx

if they get back to you , it should be one of 3 things

1) asking for the drivers details (dont give them this info)

2) cancelling the pcn (yeah right!! , lol)

3) rejecting the appeal and offering the IAS

if its 3), read all about IAS appeals in the NEWBIES sticky thread, then IGNORE everything except an LBC or an MCOL

paggers6394

They replied the following:

"Thank you for your email.

Upon entering the site you entered into a contract to pay for the parking that was due at the time or up to 48 hours following your departure (online) or pay a parking charge notice (reduced if paid within 14 days).

Having checked all the payments made during both of your visits I am unable to see a payment for your registration or anything I might assume is an incorrect entry of your registration, therefore the parking charges have been issued correctly.

We have not claimed to and are not seeking to use POFA 2012 to pursue the matter, therefore we have no requirement to issue any letters within 14 days.

You can pay your parking charge notice online at (Won't let me post link as a new user) or by sending a cheque or postal order to Park with Ease Ltd, Unit 14, Theatre Court, London Road, Northwich, Cheshire, CW9 5HB. We also accept payments over the telephone on the contact number below.

The Independent Appeals Service provides an Alternative Dispute Resolution scheme for disputes of this type. As you have complied with our internal appeals procedure you may use, and we will engage with, the IAS Standard Appeals Service providing you lodge an appeal to them within 21 days of this rejection.

If you believe this decision is incorrect, you are entitled to appeal to the Independent Appeals Service (IAS). In order to appeal the IAS will need your parking charge number, your vehicle registration and the date the charge was originally issued.

Kind Regards"

Do I email back stating that as they wrote to me as the keeper and they have not provided proof of who the driver was, they can only pursue under POFA and as such I am no longer liable to pay. And as the keeper did not enter a contract with them. And ask them to provide proof of who was driving?

Thanks again,

LP

paggers6394

Reason I'm asking is that from reading part of the NEWBIES thread IAS appeals are flawed from the POV of the consumer, and are totally in favour of their members.

Thanks.

beamerguy

paggers6394 wrote: »

Reason I'm asking is that from reading part of the NEWBIES thread IAS appeals are flawed from the POV of the consumer, and are totally in favour of their members.

Thanks.

IAS are just a proven scam operated by the incompetent solicitors called gladstones

The only way is for government to fully understand the scam they operate and take away their ATA status

Theresa May promises to stamp out "unfair practices" but this is probably part of her dream world

Umkomaas

Do I email back stating that as they wrote to me as the keeper and they have not provided proof of who the driver was, they can only pursue under POFA and as such I am no longer liable to pay. And as the keeper did not enter a contract with them. And ask them to provide proof of who was driving?

You could do that. If you get a reply they will probably say they are working on the 'reasonable presumption that the keeper was the driver' and quote Elliott v Loake and/or CPS v AJH Films (both have no validity in the context of private parking and have been debunked by judges across the country).

You could also tell them that you have no intention of appealing to the flawed IAS, so if PWE want to proceed to have the case heard before a judge, they should issue proceedings in the small claims court within 14 days, otherwise you will consider the matter closed. If they continue to pursue you without issuing proceedings you will consider their action to be harassment and will take appropriate legal advice in relation to issuing proceedings against them.

paggers6394

Thanks Umkomaas. When you mention they should issue proceedings in a small claims court within 14 days - this is within 14 days of what point, the point at which I tell them this?

Thanks,

LP

Umkomaas

Put however many days you wish - 14 was just a suggestion, but don't give them forever! 14/21 are about right. Say 'within x days of the date of this letter, for which I have a Certificate of Posting from the Post Office'.

paggers6394

Does the following sound ok, or is it too consensual? Anything else I should mention?

Thanks again everyone!

____

"Dear Gemma,

Thank you for your quick response to my email. However, the substance is not legally correct.

The keeper did not enter into a contractual agreement with Parking With Ease Ltd. The driver did so. As the keeper, I therefore still have no liability under the Protections of Freedom Act (2012) as you have failed to comply with the criteria set out in paragraphs 6 and 9 (as aforementioned in my previous email).

I understand that in these instances it is usual for companies, such as yourselves, to cite Elliot v Loake (1982) in order to presume that the keeper was the driver. In order to avoid sending emails to and fro, I would like to tackle that argument head on. Elliot v Loake does not set a legal precedent for the presumption that the keeper is the drive. In the case of Elliot v Loake:
- The driver was found to be the driver because of conclusive evidence that he was driving. He was not presumed as the driver, because there was a lack of evidence to suggest who the actual driver was and as the keeper he therefore became culpable.
- There was DNA evidence which found that the appellant had lied, and there is a clear legal precedent that once a witness has been found to be lying it is taken that they may have lied about evidence elsewhere in the same case.
- The appellant was also proven to be in possession of the only set of keys for the car in question at the time of the incident, and was the only person with permission to drive the car.

None of those point directly apply to this case. Therefore, could you provide evidence of who was driving? Whilst as the keeper my liability has not been established as you have failed to comply with the the conditions set out in the Protection of Freedoms Act, as a gesture of goodwill, with evidence and/or proof of who was driving I will do my best to service this charge. Unfortunately, without this, it is not possible for me to do so.

Kind regards"