Lease car notice to hirer - help please!

Coupon-mad

Edna Basher is a chap. I think I made that mistake when he first started posting! He posts as Dennis Basher on pepipoo forum.

Refer to yourself as the lessee/hirer of the vehicle.

I agree that you should not wait, and should get this one appealed.

JohnBoy987

Ah I seem to be offending Edna all over the place! Was badger last week!

So I will send the template that Just says you haven!!!8217;t complied with pofa section whatever and therefore cancel or send me popla ref... the template I have has no reference to company car status, but that!!!8217;s ok at this stage?

Edna_Basher

No offence taken JimBob

Maybe I've missed it, but I can't see where your thread gives the name of the parking company that you're dealing with. The process for dealing with your "appeal" will depend on whether they are a BPA or IPC accredited operator.

JohnBoy987

Hi Edna - it’s a BPA member. I’ve sent your template (thank you very much) saying as leaser they having complied with section 4 13 and 14 so either cancel or give popla ref... hope that’s ok?

JohnBoy987

Clearly typo... meant to say they haven’t complied with 13 and 14

Ta. JB

JohnBoy987

Hi All.... got a poplar ref and a rejection of appeal letter through today

So now, how do I word the poplar appeal?? Any ideas?

KeithP

JohnBoy987 wrote: »

So now, how do I word the poplar appeal?? Any ideas?

It's back to the NEWBIES FAQ sticky thread.

This time, let post #3 be your guide.

JohnBoy987

HI Everyone,


Have pulled together a proposed POPLA appeal (as you may be able to tell I have started with a template and amended with additional relevant info) - would be grateful if you could review and ensure what I am saying is valid...


Thank you!!




Dear POPLA,On the xx/xx/xxxx, parking firm issued a parking charge notice highlighting that the above mentioned vehicle had been recorded via their automatic number plate recognition system for !!!8220;!!!8230;either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted!!!8230;!!!8221;!!!8232;!!!8232;As the registered keeper I wish to refute these charges on the following grounds:


As the registered keeper, I have no liability for this charge
Parking firm lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespass





As the registered keeper, I have no liability for this charge.


To support this point further the following areas of dispute are raised:!!!8232;


The Notice to Keeper is not compliant with Protection of Freedoms Act 2012 (POFA) for the following reasons:


Under sub-paragraph 14 (2) (a) of the Protection of Freedoms Act 2012 (POFA), the Notice to Keeper (NTK) was not sent with the required accompanying documentation, as per sub-paragraphs 13 (2) (a) (b) and (c) of the Protection of Freedoms Act 2012 (POFA).

Namely;

13 (2) (a) statement signed by, or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under the hire agreement;

13 (2) (b) a copy of the hire agreement;

13 (2) (c) a copy of a statement of liability signed by the hirer under that hire agreement.


I understand the letter sent to (the lease company) was received by them on xx. I understand they responded to parking firm on xx to confirm the car is leased to myself, and provided my details as hirer, together with a copy of my signed hire agreement and statement of liability. Parking firm acknowledge in the Parking Charge Notice sent to me on xx date that they have been sent copies of the signed hire agreement and statement of liability by the lease company.

None of these three required documents have been provided to myself as hirer. As a result of not complying with sub-paragraph 14 (2) (a), the creditor may not exercise the right under paragraph 4 of the Protection of Freedoms Act 2012 (POFA) to recover from the keeper any unpaid parking charges specified in the notice to keeper.

The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge.!!!8232;!!!8232;

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. 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.

In this case, no other party apart from an evidenced driver 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 no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.!!!8232;!!!8232;

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. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.!!!8232;!!!8232;

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.!!!8232;!!!8232;

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:!!!8232;!!!8232;Understanding keeper liability!!!8232;!!!8220;There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle. !!!8232;!!!8232;There is no !!!8216;reasonable presumption!!!8217; 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. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''!!!8232;!!!8232;Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA. !!!8232;!!!8232;This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
!!!8232;
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Finally with relation to this point, the appeal that was made to parking firm on xx date explained the elements of PoFA they had not complied with, and the rejection of my appeal did not refer to PoFA at all. I can only assume the person considering my appeal had not read my grounds for appeal as hirer.

Parking firm lacks proprietary interest in the land and does not have the capacity to offer contracts or to bring a claim for trespassing

It is suggested that parking firm. does not have proprietary interest in the land and merely acting as agents for the owner/occupier. Therefore, I ask that parking firm. be asked to provide strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, which specifically grants them the standing to make contracts with drivers and to pursue charges in their own name in the courts. Documentary evidence must pre-date the parking event in question and be in the form of genuine copy of the actual site agreement/contract with the landowner/occupier and not just a signed !!!8216;witness statement!!!8217; slip of paper saying it exists.!!!8232;!!!8232;
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:!!!8232;!!!8232;

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

Coupon-mad

As the registered keeper I wish to refute these charges on the following grounds:

As the registered keeper, I have no liability for this charge

You are NOT the registered keeper. Change it throughout.

You are the lessee/hirer and the difference is important, because that's what you are arguing in terms of non-compliance of para 13 of the POFA Schedule 4.

JohnBoy987

thanks coupon... will amend


In that case, the letter sent to me refers me to a notice of keeper... I've never seen anything titled this (assume it was sent to the lease firm but I have not seen a copy) should I mention this in my POPLA referral?


Aside from that, does the rest sound ok?