HX CPM Non POFA compliant and citing Elliot v Locke

Mr_Picklehead

Apologies if this is covered elsewhere but I have not managed to find it.


A relative has sent a first letter appeal to HX Car Park Management against a PCN issued by post (no windscreen ticket) alleging "you did not pay and display or did not enter the correct registration number".


The relative appealed as the keeper of the vehicle (not the driver) stating that there was no keeper liability and that "a parking charge cannot be enforced against a keeper without a valid NTK which by law must comply with the Protection of Freedoms Act 2012 (POFA)" Furthermore they issued HX CPM with a Section 10 Data Subject Notice for breach of the Data Protection Act 1998. This was issued as the relative stated that HX PCM had no "reasonable cause" to pursue the keeper. Non compliance with POFA they argued meant there can be no transfered liability and no legally enforceable charge against the keeper.


HX CPM rejected the appeal (no surprises there!). There rejection letter states:


"If you, the keeper, are unwilling to name the driver at the date of the contravention, you will remain liable for the PCN. We do not have to comply with POFA in regards to issuing tickets, and as per the case of Elliot v Loake, if the keeper is unwilling to name the driver, then we can proceed with the assumption that the keeper was the driver at the time of the contravention"


They go on to re-offer the lower "prevailing price" (sixty pounds) for a further period of 14 days from the date of the rejection letter or suggest an appeal to the Independent Appeals Service (IAS).


I am aware of the advice not to appeal to IAS. The letter also has a BPA logo on the bottom - could my relative request a POPLA appeal instead?


I am aware that Elliot v Loake is a criminal case ruling and is not relevant to keeper liability in a civil case. I am unsure however why HX CPM so readily claim that they do not need to comply with POFA. Is there something I am missing? Of course it's not the issuing of PCNs that has to comply with POFA but surely then, since they are not POFA compliant, they have no grounds to chase the keeper for payment of the PCN?

KeithP

Mr_Picklehead wrote: »

I am aware of the advice not to appeal to IAS. The letter also has a BPA logo on the bottom - could my relative request a POPLA appeal instead?

The parking company will only be a member of one Approved Operator Scheme, either the BPA's or the IPC's.

As indicated in post #1 of the NEWBIES FAQ sticky thread:

Q - ''My PCN is from UKCPM, or UKCPS, or Millennium (etc.) and it/the signs say they are both BPA & IPC members?''

A - NO, THEY ARE NOT, AND PLEASE NO MORE THREADS ASKING THIS!
http://forums.moneysavingexpert.com/showthread.php?t=5784929

Coupon-mad

I am unsure however why HX CPM so readily claim that they do not need to comply with POFA.
Is there something I am missing?

Yep, the fact that they don't have to. It doesn't stop them issuing a Notice that holds the driver liable.

The NEWBIES thread tells you that:

Want to dig deeper? Check the compliance of your Notice to Keeper, if the PPC is citing 'keeper liability' under the POFA. Here's a link to Schedule 4 of POFA 2012 which applies in England/Wales only (look for the words shown in paragraph 8 if it's a 'windscreen ticket followed by a NTK', or the words in paragraph 9 if it's a postal PCN only):

[/FONT]http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

If the NTK arrives late, this does not make the PCN 'void' but it means there is 'no keeper liability' possible.

If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!) the a postal PCN must arrive by day 14 if there was no windscreen ticket. Or, the NTK must arrive with you between day 29 and day 57 if there was a windscreen PCN.

Some firms (e.g. Civil Enforcement, Highview, Smart Parking and some small PPCs) don't even bother with POFA 2012 wording so the keeper is not liable...

But by not bothering with POFA, the keeper can't be held liable as long as they never admit who was driving. Read the thread by stevey (NO LINK, go find it) for what not to do as and when HX try a (usually) doomed small claim, via Gladstones. No saying who was driving.

Elliott v Loake has been rebutted so many times on here and in court:

http://www.parking-prankster.com/more-case-law.html

VCS v Quayle is good, as is Excel v Lamoureux (featuring 'Lamilad' who posts here) and Excel v Smith, all show that Elliot v Loake (which had nothing to do with contract law, nor assuming who was driving) and CPS v AJH Films (about a company car driver being an agent of the company) have no application, and the keeper can't be held liable.

Mr_Picklehead

Apologies but how I read it the link on the NEWBIES thread appears to be relevant "If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!)"
In this case the firm do not allege keeper liability under POFA. They state that they don't have to comply. My relative will therefore challenge this as there is no keeper liability. What I was wondering is why they are so ready to admit they are non-POFA compliant. The thread states that some firms don't bother to be POFA compliant but doesn't really offer an explanation for why this might be. An understanding of the ways these firms work can often help prepare an effective defence.

I'm reading the Stevey thread now. Other than that I'll re-check the advice on not appealing to IAS... and my relative will wait for the debt collector letters which will be ignored!

Coupon-mad

In this case the firm do not allege keeper liability under POFA.

I know, same as any Excel thread, for example. Nothing new.

The thread states that some firms don't bother to be POFA compliant but doesn't really offer an explanation for why this might be. An understanding of the ways these firms work can often help prepare an effective defence.

OK, I would say the reason they don't use the POFA is:

- they don't need to. Sadly, more than enough naive or clueless or otherwise hoodwinked saps pay.

- If it ain't broke, why try to fix a business model that sees them sloshing in money?

- PPCs have to meet strict deadlines to issue a NTK that holds a keeper liable, and many can't routinely meet the 14 days. Knowing they can't, they would be in danger of a ban from the DVLA if they were investigated, and in danger of failing DVLA and Trade Body audits which can end up with sanctions (and again, a DVLA ban).

- much easier to stick with what you know, looser deadlines. Less risk of sanctions - and the victim saps still pay up.

- most people who appeal, dob in the driver anyway so these PPCs are laughing.

- they can't lie and say they hold you liable, so they admit it's non-POFA, knowing that will confuse you, and it has.

Le_Kirk

Mr_Picklehead wrote: »

... and I'll wait for the debt collector letters which will be ignored!

You mean your relative will wait for .......

Mr_Picklehead

Coupon-mad wrote: »

- PPCs have to meet strict deadlines to issue a NTK that holds a keeper liable, and many can't routinely meet the 14 days. Knowing they can't, they would be in danger of a ban from the DVLA if they were investigated, and in danger of failing DVLA and Trade Body audits which can end up with sanctions (and again, a DVLA ban).

.

In this case they seem to have been very quick with obtaining keeper details from DVLA.


Date of alleged contravention: 3/4/18
PCN "Date of Notice": 6/4/18


And from their rejection letter: "The request for your data from the DVLA was made on 6/4/18"


However, my relative contends that the PCN in non compliant with PoFA because of the inadequate wording and it seems they aren't going to dispute this... Very similar to the well documented cases here, as Coupon Mad also states above. Check Parking Prankster "More Case Law" for the links:


CS043 Excel v Lamoureux C3DP56Q5 proceedings to judgment. (No keeper liability)


CS044 Excel v Lamoureux C3DP56Q5 judgment (No keeper liability)

Ralph-y

you seem ...like many a newbie to think that PPC's are regular decent companies ...

our MP's ... do not ....
watch / read the below ...


https://hansard.parliament.uk/commons/2018-02-02/debates/CC84AF5E-AC6E-4E14-81B1-066E6A892807/Parking(CodeOfPractice)Bill

''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

These are the exact words used, so you should quote them to your MP in a complaint and ask him/her to contact Sir Greg Knight MP if he wants further information about this scam.


Ralph:cool:

Mr_Picklehead

Ralph-y wrote: »

you seem ...like many a newbie to think that PPC's are regular decent companies ...

our MP's ... do not ....
.
''Rip-offs from car park Cowboys must stop''; unfair treatment; signage deliberately confusing to ensure a PCN is issued; ''years of abuse by rogue parking companies''; bloodsuckers; ''the current system of regulation is hopeless, like putting Dracula in charge of the blood-bank''; extortionate fines; rogue operators; ''sense of injustice''; unfair charges and notices; wilfully misleading; signage is a deliberate act to deceive or mislead; ''confusing signs are often deliberate, to trap innocent drivers''; unreasonable; a curse; harassing; operating in a disgusting way; appeals service is no guarantee of a fair hearing; loathed; outrageous scam; dodgy practice; outrageous abuse; unscrupulous practices; ''the British Parking Association is as much use as a multi-storey car park in the Gobi desert''; and finally, by way of unanimous conclusion: ''we need to crack down on these rogue companies. They are an absolute disgrace to this country. Ordinary motorists and ordinary residents should not have to put up with this''.

These are the exact words used, so you should quote them to your MP in a complaint and ask him/her to contact Sir Greg Knight MP if he wants further information about this scam.


Ralph:cool:

Oh no not at all. I know they are scammers.... I have a few victories against PPCs under my belt. I just haven't had a personal case where they have admitted from the off that they are not POFA compliant with regards to keeper liability. Previously I have come across them using POFA but being outside the timeframe; I have seen PPCs try to issue a PCN when they can't even get the colour of the car right; I've had one when the keeper challenged was neither the keeper nor the driver at the time of the contravention!

Coupon-mad

Mr_Picklehead wrote: »

In this case they seem to have been very quick with obtaining keeper details from DVLA.

Date of alleged contravention: 3/4/18
PCN "Date of Notice": 6/4/18

And from their rejection letter: "The request for your data from the DVLA was made on 6/4/18"

However, my relative contends that the PCN in non compliant with PoFA because of the inadequate wording and it seems they aren't going to dispute this... Very similar to the well documented cases here. Check Parking Prankster "More Case Law" for the links:

I know HX NTKs are non-POFA and I told you that! I agree.

The dates are irrelevant (a non-POFA PCN is a non-POFA PCN anyway). I don't need to check PP blogs to know that HX NTKs are not compliant. This has been said on umpteen threads, including on stevey's, where I gave him a link to a court case where that was successfully argued.

I just haven't had a personal case where they have admitted from the off that they are not POFA compliant with regards to keeper liability. Previously I have come across them using POFA but being outside the timeframe;

HX never pretend to use the POFA, and nor do this lot, this really is nothing new:

Smart
CP Plus
Excel
VCS
Highview
Civil Enforcement...

etc.. etc. the list goes on. HX never use the POFA.

Did you miss the court case (HX case won on 'no keeper liability') that I linked in stevey's thread? Have another look.

Mr_Picklehead

My post wasn't specifically to you Coupon Mad. It's a public forum and people come here for help. Thanks to the good folk like you that have posted thousands of time it provides a valuable resource. Hopefully others (maybe searching HX Car Park Mnagement) might find this thread and be signposted towards a way to deal with their unfair PCN.


Perhaps the NEWBIES sticky thread could include a line on where to look to contest a non PoFA compliant PCN. For example, "For PCNs from firms that are not compliant with PoFA (e.g. HX, Excel, Smart, CP Plus..... ) the keeper cannot be assumed to be liable and are under no obligation to name the driver. See these links: Lamoureux, Quayle etc"..... That might just prevent annoying NEWBIES writing repetitive posts as they try to get their head around something which you know all about, but for them it's a PCN issue that they have not come across before!