Invalid NtK Shall I appeal to IAS?

kensiko

Thanks for the confirmation. This is exactly as I was thinking with the second draft.

Seems odd that if they know they haven't complied (legally) with POFA they still think they can get you on an assumption.

This is pretty much what I was trying to get across in that second draft, but if it is pointless sending it then so be it.

I did read up a bit on similar issues and spotted http://parking-prankster.blogspot.co.uk/2017/01/vcs-lose-claim-no-keeper-liability.html
The case was dismissed and the defendant won, is it worth mentioning this in an appeal so even if they don't accept it it may make them think twice to take this particular case to court?

The Judge in this case sums up my thoughts exactly by asking if the PPC isn't relying on POFA then what legally are they using to pursue the claim other than 'an assumption'?

It's all very odd!

Umkomaas

Nothing makes them ‘think twice’ in my view, they plough on regardless. The main forum view is that if you lose at the IAS it gives the PPC more momentum (and evidence that an ‘impartial and independent ADR provider’ - ho ho - has already found in their favour) to push forward with a claim.

Who knows what they might next do - your call, ultimately, in how you handle it.

kensiko

Perfect. Thanks for all the advice.
I now understand it a little more.

I will reopen thread should anything exciting happen in the future!

bergkamp

Personally I would send the appeal staing you were not the driver.

As stated before, this means the PPC will be calling you a liar and have to prove you were driving.
And they can't prove it can they...

This will not mean you will win the appeal or not receive toothless debt collector letters, but I believe will stop any court action....

The two IAS appeal rejections I have received have been utter codswallop!!

Coupon-mad

I would never have appealed to the IAS, they say a PPC can 'assume' who was driving and that the victim appellant hasn't proved they were a million miles away.

Did you lose?

bergkamp

Coupon-mad wrote: »

I would never have appealed to the IAS, they say a PPC can 'assume' who was driving and that the victim appellant hasn't proved they were a million miles away.

Did you lose?

Of course I lost!


But the PPCs were only G24 and Topher , which resulted in the debt collector chain of letters for the first, then nothing for the second. These were in 2015.


G24.
The NTK was not POFA compliant and this was the the main appeal point along with Locus standi, grace periods and CoP compliance.


Operators reply;

This is not a relevant consideration as the motorist entered into a contract with G24 Ltd, so have agreed to pay.

The signs advertising the terms and conditions of the car park are compliant with our Approved Operator Scheme and displayed in prominent locations throughout the car park.

All other queries have no relevance to this CPCN.

It is for the above reasons that the appeal has been rejected.

Adjudicators Decision;

It is important that the appellant understands that the adjudicator is not in a position to give legal advice. The adjudicator's role is to look at whether the parking charge has a basis in law and was properly issued in the circumstances of each particular case. The adjudicator's decision is not legally binding on the appellant (it is intended to be a guide) and the Appellant is free to obtain independent legal advice if they so wish.

The guidance to this appeal makes it clear that I am bound by the law of contract and can only consider legal challenges not mistakes or extenuating circumstances. I am also only allowed to consider the charge being appealed and not the circumstances of other drivers or other parking events. In this appeal procedure the onus this is on the Appellant to prove their case on the balance of probabilities.

On considering images provided it is clear that sufficient amounts of signage existed on the site at the time of issuing the Parking Charge Notice (PCN). The Operator shows evidence that the maximum amount of time allowed is 180 minutes and that the Appellant's vehicle was on site for a total of 196 minutes. As it appears to be accepted that the Appellant was on site in excess of the maximum parking period I am satisfied that the PCN has a basis in law.

I have considered the Appellant's comments and am satisfied that the conditions in schedule 4 of PoFA 2012 have been complied with. It is noted that the Operator is pursuing the Appellant as the keeper of the vehicle rather than the driver.

The signage on the site indicated that the charge would be £100. The Appellant raises the issue of damages for loss caused. The Operator does not pursue the Parking Charge following a breach of contract. The Parking Charge has been issued pursuant to a specific contractual term and therefore the question of loss is not a relevant consideration for this appeal.

In my view the parking charge is not excessive for two reasons. First, because the amount being sought by the operator was clearly communicated to the appellant by way of the signage on the site. If the Appellant considered the charge to be excessive, the Appellant had the choice to reject it by either not parking or parking in accordance with the terms. Second, the amount being claimed by the Operator is in my view justified given the operator's running costs. It is also in line with industry standards.

For further guidance on this point the Appellant may wish to consider the judgment in PARKINGEYE LIMITED and BARRY BEAVIS [2015] EWCA Civ 402.

The Appellant goes on to query whether the Operator has the authority to issue PCN's at this site. This site has been audited by the IPC and a copy of the landowner's authority has been provided to them as part of the audit process. In this appeal procedure the onus this is on the Appellant to prove their case on the balance of probabilities. I am satisfied from the evidence provided that that the Operator has the authority to issue and enforce Parking Charge Notices on this site.

It is worth noting on this point, more recent case law is provided by the decision of the Court of Appeal in Vehicle Control Services (VCS) v. HMRC [2013] EWCA Civ 186, para, 22 per Lewison LJ. In this case the contract between VCS and the landowner gave VCS the right to eject trespassers. That is plain from the fact that it is entitled to tow away vehicles that infringe the terms of parking. The contract between VCS and the motorist gives VCS the same right. Given that the motorist has accepted a permit on terms that if the conditions are broken his car is liable to be towed away, it would be open to a motorist to deny that VCS has the right to do that which the contract says it can. In order to vindicate those rights, it is necessary for VCS to have the right to sue in trespass. If, instead of towing away a vehicle, VCS imposes a parking charge there is no impediment to regarding that as damages for trespass.

I finally the comments regarding grace periods however it is the driver's responsibility to ensure that the terms of parking are complied with and whilst sympathizing with the Appellant, once liability has been established, only the Operator has the discretion to vary or cancel the parking charge based on mitigating circumstances.

Accordingly this appeal is dismissed.

Topher;
NTK was not POFA compliant and no photographic evidence was on PCN Parking Solutions website that the event happenened.


Operators reply;

THE LAND IN QUESTION IS PRIVATE AND IS THEREFORE SUBJECT TO TERMS AND CONDITIONS OF PARKING.

BY WAY OF CONTRACTUAL WARNING SIGNAGE, WHICH IS DISPLAYED AT THE SITE, MOTORISTS ARE MADE AWARE THAT SHOULD THEY DECIDE TO PARK AT THE SITE, THEN A VALID PAY AND DISPLAY TICKET MUST BE CLEARLY DISPLAYED AT ALL TIMES.

IN THE EVENT THAT A VALID PAY AND DISPLAY TICKET IS NOT CLEARLY DISPLAYED, THEN THE MOTORIST BY WAY OF AFFIRMATION, HAS AGREED TO PAY THE OPERATOR A FIXED AGREED UPON SUM OF MONEY. IN ESSENCE THIS SUM IS A CORE CONTRACTUAL PRICE TERM.

SHOULD THE MOTORIST NOT AGREE TO THE TERMS AND CONDITIONS OF PARKING, THEN THEY ARE FREE TO REMOVE THEIR VEHICLE FROM THE SITE AND TO PARK AT AN ALTERNATE LOCATION.

AS PER THE OPERATORS PHOTOGRAPHIC EVIDENCE, IT IS CLEAR THAT THE APPELLANT WAS NOT DISPLAYING A VALID PAY AND DISPLAY TICKET AT THE TIME OF THE UNAUTHORISED PARKING EVENT.

THE OPERATOR WOULD ALSO DRAW THE IAS ASSESSOR TO THE FACT THAT AT NO POINT HAS THE APPELLANT APPEALED AGAINST THE ISSUING OF THIS PCN BUT HAS MERELY STATED THAT THE "NTK IS NOT POFA COMPLIANT" FOR UNSPECIFIED REASONS.

AS A RESULT OF THIS WE SAY THAT THE APPELLANT IS LIABLE FOR THIS PARKING CHARGE NOTICE.

Adjudicators Decision;

It is important that the Appellant understands that the adjudicator is not in a position to give legal advice. The adjudicator's role is to look at whether the parking charge has a basis in law and was properly issued in the circumstances of each particular case. The adjudicator's decision is not legally binding on the Appellant (it is intended to be a guide) and the Appellant is free to obtain independent legal advice if they so wish.

I am satisfied that as the Operator is pursuing the Appellant as the Driver of the vehicle that PoFA does not apply in this situation. In the case of Elliot v Loake (1982) the legal principle is established, that, in the absence of sufficient evidence to the contrary, the keeper of a vehicle is assumed to be the Driver. I am not satisfied that the Appellant has not proved that they are not the Driver as claimed.
It is clear from the photographs provided by the Operator that no valid ticket or permit was on display in the vehicle at the time of the parking event, therefore I must conclude that a Parking Charge Notice has been legally issued.
As no further grounds are raised by the Appellant I must dismiss this appeal.

I know you don't recommend appealing to the IAS C-m , but on my current thread I may try to get an up to date decision from them....


Apologies to the OP for slight hijack...