Euro Car Parks Popla Appeal

nick_968

In the last section - Point 4 - I had to change the titles from Claimant and Defendant to Operator and I to make it read in line with the rest of the response as it appears to have been taken directly from a court case. Hopefully it all makes sense.

nick_968

Redx wrote: »

why is there no POFA2012 and transfer from driver to keeper arguments in the above appeal ?

if the driver has not been IDd , then add POFA2012 in and make them prove they had the correct POFA wording, plus met POFA timescales etc

I did not put that in because I thought they had it covered with the wording in their response to my appeal as follows::

"Please be advised that it is the registered keepers responsibility to inform of the full name and address within 28 days beginning with the day after the notice was given. If the full amount remains unpaid, under Schedule 4 of the Protection of Freedoms Act 2012, Euro Car Parks have the right subject of the Act to recover from the keeper of the vehicle at the time it was parked so much of that amount which remains unpaid."

"As the drivers details have not been provided you as the registered keeper are now liable for the outstanding amount. Prompt payment is now advisable."

KeithP

You really should not be believing what the PPC has told you.

You need to compare all the wording, line by line, on the NTK with the detailed requirements of PoFA.

There's a link to Schedule 4 of PoFA in post #1 of the NEWBIES FAQ sticky thread.

Redx

they have that right IF , and I mean , IF they complied with POFA2012 , exact wording and timescales

if you put the appeal point in , they have to prove it in their evidence pack and a popla assessor has to check it to make sure

if you fail to put it in there, it wont even be looked at

it is ECP,s job to prove their own case, so make them prove what they say, dont assume they are correct and dont assume that they have met each and every argument , including POFA2012 , BPA CoP , consumer laws , signage , landowner authority etc

these companies fail on so many levels its a joke considering they have had 6 years to get it right, you only have to win on one single point to win OUTRIGHT

assume nothing , query everything

nick_968

So I will add this in - taken from another post by Coupon-M:

2) The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court.

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 charge cannot be enforced against a keeper without a POFA-compliant NTK. Only full compliance with Schedule 4 of the POFA (or evidence that a keeper was the driver) can cause a keeper appellant to be deemed by POPLA to be the liable party. The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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.

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:-

Understanding keeper liability
!!!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.

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''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.''

Redx

and edit it to remove all the spurious characters in place of punctuation, like apostrophes etc , also renumber accordingly

KeithP

Nick, I would use this more recent adaptation of the same thing, linked from the NEWBIES:

forums.moneysavingexpert.com/showpost.php?p=71287626&postcount=2342

If nothing else, that newer version at least gets rid of that phrase "I am the appellant throughout (as I am entitled to be)...".

nick_968

KeithP wrote: »

If nothing else, that newer version at least gets rid of that phrase "I am the appellant throughout (as I am entitled to be)...".

Thanks, I have copied the newer version into my response but the phrase you quote above is still in there?

KeithP

nick_968 wrote: »

Thanks, I have copied the newer version into my response but the phrase you quote above is still in there?

Indeed it is!! But it has moved.

Perhaps we can encourage Coupon-Mad to make another little edit to that.

Meanwhile, I suggest you change that phrase to:

I am the keeper throughout (as I am entitled to be)...

Coupon-mad

It's been removed! Gone for good!