Indigo railway "penalty notice" - appeal rejected

freddie212

Hello experts! First time poster here, please be gentle. I have read everything that I can find that I think is relevant, e.g. the official MSE advice, the "best newbie thread ever" about Indigo, the FAQs, the Parking Tickets Board Sticky. So I'll restrict my questions to what I don't already know, to minimise my use of your time


Firstly, I admit it, I apologise, I didn't know about this forum and didn't come here first, so I already admitted I'm the driver and gave my details. Am I doomed?


I received a "penalty notice" on 9 Feb for failing to display a valid permit. Thing is, I have a valid annual permit at an exorbitant cost of £950. It was clearly displayed. Problem was it was upside down, it was a windy day and the new permits from this year are so tiny and lightweight (round paper discs, smaller than a tax disc) that I believe it flipped over as I was exiting the car or closing the door. I know that I put it on the dashboard the right way up. Normally I double check after closing the doors and setting the alarm, but on this case I didn't as I saw the train approaching and I needed to do the 150m sprint rather swiftly (for me, that is). The permit was a few inches away from where I usually place it. Since then, I have started keeping it in a plastic wallet to minimise the chance of this happening again.


Being a newbie, I appealed almost immediately using the Indigo website, not the "template" found on here - mistake 1. Mistake 2, I ticked the box that says "I'm the driver", at least I didn't untick it. I gave my name and address. However in mitigation, they already know my name and address because it's a registered annual permit, and they have on their records my details and registration numbers of our 3 cars.


The rejection was rejected, I received this yesterday. No POPLA code, as it's a railway car park and apparently some byelaws apply. Some thoughts:
- I'm aware of Canterbury Council losing their case on "flipped tickets" - does that count as legal precedent, or is that different?
- The parking regs as displayed call only for clear display of a valid permit. I had a valid permit, it was displayed clearly. Is it a defence that the regs do not specify that it must be the right way up?
- Last year, the permits were large, square, laminated and heavier so harder to flip over in the wind. To me, it's Indigo's fault that it flipped over due to the change.
- It would be easy to make the permit double sided. But they choose not to.
- A flipped over ticket seems to be a "de minimis" breach of contract. I don't know if that's a valid defence.
- For a railway car park, is the owner, driver or keeper liable? I'm not sure.. maybe it doesn't matter that I told them I'm the driver?


Anyway the long and short of it is, should I now just pay up and move on with my life, should I ignore it, or should I take the MSE "Tough, but possible" advice and write to them telling them why I'm not paying? I have to say, I do not mind taking the risk of the charge increasing from £60 to £100 by missing the early payment deadline (in 13 days I think) because I am incensed by this - I have a damned expensive valid ticket.


Thank you so much!!
PS: edited to add, the reason for the new thread is that everything I've read is about not admitting to being the driver, and using the standard template to appeal to POPLA if it gets that far, but I'm not sure what to do if I've already been dumb enough to get those bits wrong and I cannot appeal to POPLA; most threads here date back to before the Jan 2018 change that eliminates the POPLA route.

twhitehousescat

what have you read? there are about 4 more INDIGO cases on this first page that explain everything

waamo

Read this it explains it all https://forums.moneysavingexpert.com/discussion/5803499

twhitehousescat

and https://forums.moneysavingexpert.com/discussion/5805822

Coupon-mad

Am I doomed?

No, Indigo are.

freddie212

Waamo and twhitehouse's cat, yes, I read both of those threads (and others) and I was left confused over whether the differences in those cases to mine are relevant, or not. Maybe that's because I'm time poor and didn't read it properly, or I'm just paranoid, or just not getting it. Anyway, these were the sources of confusion:


- in one of those threads, one of the main points is that 6 months has already expired; in my case it has not.
- in both threads, one of the main pieces of advice seems to be, don't declare the driver; as financewarez said, "If you haven't told them who the Driver is, and it sounds like you haven't, you've basically won". Whereas I did declare that, in the online appeal.
- some posts seem to imply that the driver is liable, "tell them to go contact the Driver" and others seem to say that the Owner is liable.
- in other threads, where railway byelaw 14 is mentioned, there is advice that there's no offence of failing to display a ticket in byelaws. However I'm wondering if compliance with T&Cs displayed at the car park counts as an offence.


Anyway trying to keep this short, am I right in saying that (based on some posts in those threads) under railway byelaws it's the Owner that's liable, not the Driver or Keeper? And that they have no way of finding out who the Owner is? And secondly, that Indigo cannot take anyone to magistrates court, only the TOC can, but the TOC doesn't know my details and that Indigo cannot pass them on?


Something else that just occurred to me, can they clamp the car for non-payment of a penalty? The car is there every day.. that would be a bad outcome. As would going to magistrates. Worst of all would be a criminal record of course.


Coupon-mad: thank you, the reassurance is welcome!


thanks!

twhitehousescat

a car can not be clamped , a car could be clamped for non payment of a FINE , (yes FINE) however they have to take you to court and for you to be found guilty , not going to happen

therec was a case several yrs ago , NCP V mayhook http://www.davidmarq.com/bama/Mayhook-V-NCP%20Judgement%20transcript.pdf

it all went wrong for them , high 6 figure sums lost , bankruptcy etc etc , how sad

Mr Mayhook was awarded £87,000, broken down as follows;

Solicitors costs £45000
Barrister £12500
After the event Insurance £24000
Disbursements £4500

financerulez

Driver has liability. Don't reveal driver. Owner might have liability, it's untested and questionable law. Don't reveal Owner. Keeper has no liability. All they know is that you're the Keeper. Appeal as Keeper.

Ah just read your initial message. The answer is yes, now they know you're the driver they theoretically would be within their rights to prosecute you for a byelaw breach. (Anyone can prosecute in Magistrates' Court if they want.)

But it's unlikely that they will. There's a few reasons why it's unlikely:
1. They would need to do it within 6 months.
2. They would need to prove in Magistrates' Court beyond reasonable doubt that a byelaw breach has occurred.
3. They would need to spend significant amounts of money on bringing this private prosecution, knowing that even if they win in Court they receive £0.00.
4. They cannot pass the data to the TOC, and it's only the TOC who gain really from prosecutions in the sense that it may scare people into not breaking the byelaws. Only a couple of TOCs even bother when they have acquired the data themselves legally, which one is this for?

Before you send any replies, it could be useful for us to see a redacted NtK. Some PPCs have started trying to bring contract law claims while quoting byelaw breaches - blending criminal and civil law. Will need to see this to understand whether they have any civil claim against driver, and advise on your course of action.

I'll let someone else respond on the clamping - I don't know too much about that, but I'm fairly sure the answer will be that they cannot clamp, at least not until they had won in Magistrates' Court. The reason is, before the Court enforces/judges that a breach has occurred, it is only an alleged breach up until that point. Their allegation may be totally wrong and unfounded, and it would not be fair to clamp cars in this situation.

Re criminal records - byelaw offences are not recordable offences, similar to speeding, you will not get a criminal record even if found guilty.

twhitehousescat

I would also add that if indigo did bring a magistrates case for bylaws , it would couse problems with the BPA british PARKING assoc , and would cause the DVLA to question the right to use kodoe


"I'll let someone else respond on the clamping - I don't know too much about that, but I'm fairly sure the answer will be that they cannot clamp, at least not until they had won in Magistrates' Court. The reason is, before the Court enforces/judges that a breach has occurred, it is only an alleged breach up until that point. Their allegation may be totally wrong and unfounded, and it would not be fair to clamp cars in this situation."

correct

The_Deep

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

Parking Eye, Smart and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They nearly always lose) and have been reported to the regulatory authority by an M.P.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

waamo

Relax. They haven't taken anyone to court yet. I'm pretty sure they wouldn't know how even if they did have the power.

This is magistrates court so can't be done online by them. Given they aren't lawyers do you think they would know how to lay an information at court?

That's not even taking into account they likely don't even have the authority.