Parking Eye - POPLA

Barutd

Hi All

Somebody else was driving my lease car and got a PCN. They only picked someone up from the car park and did not actually park, they were there 11 minutes in total.

I had a look on the forum before appealing and I used one of the successful appeals from the lease car section which I've posted below.

It is based on the fact that they did not sent me a notice to keeper within 21 days and still haven't and I was not the driver at the time.

My appeal has been unsuccessful though, so I now need to make a complaint to POPLA.

Can someone please give me some advice on how to go about this.

Many Thanks


" Dear Parking Eye

RE: PCN No. .........

I would like you to know I (as the registered keeper of the vehicle) am not ignoring your letter suggesting my liability for a charge related to a parking infraction that you state took place on ..........................

I wish to outline my current position in reference to your PCN.

Keepers Liability and POFA 2012

As stated in paragraph 13(2) of POFA 2012...

"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) 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 a hire agreement;

(b) A copy of the hire agreement; and

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

AND

Paragraph 14(2) and (3) of POFA 2012:

(2) The conditions are that —

(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and

(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.

- You were required to send this information to me (as Registered Keeper) within 21 days after receiving them from the lease/hire company.

- I have spoken to the company and they were sent to you on ...................

- Therefore I should have received these documents no later than .................... (21 days beginning with the day after).

- As this has not happened, you cannot use POFA to assume keeper liability and there is more than one driver of the vehicle which have charged a PCN against.

As I result I would like to confirm that

- I was NOT the driver of the vehicle.

- I am not obliged to disclose the identity of the driver and this does not affect my liability in this matter .

- As Parking Eye has not complied with paragraphs 13 (2) and 14 (2) of POFA 2012, you cannot rely on the provisions of the Act and hold me liable as keeper.

- You will need to pursue this claim with the driver once you identify them.

Further Questions

To begin our discussions, as this is purely a claim under a purported contract, and you have no statutory footing to issue penalties, I wish to make you aware of the following details and require the specific information so that I can assess the validity of your claim:

1. Who is the party that contracted with Parking Eye for the provision of their services at the site of the alleged to have taken place on .........................?

2. What is the full legal identity of the landowner?

3. As you are not the landowner, please provide a contemporaneous and un-redacted copy of your contract with the landholder that demonstrate that Parking Eye have the authority of the landowner to both issue parking charges and legislate in your own name or on behalf of the landowner .

4. Is your charge based on damages for breach of contract? - Yes or no?

5. If the charge is based on damages for breach of contract, please provide justification of this sum.

6. Is your charge based on a contractually agreed sum for the provision of parking? - Yes or no?

7. If the charge is based on a contractually agreed sum for the provision of parking please, provide a valid VAT invoice as you make no mention on VAT in any correspondence.

8. The signage to the site (from a seated position in the vehicle as it enters the car park is impossible to read and any specific rules regarding simply driving into the car park and say, picking somebody up, but not actually parking. Please provide a copy of the sign that purportedly forms the basis of the contract entered into by the driver for my records.

In order to proceed with my complaint however, I will require a full reply to all these questions so I am in possession of all of the facts.

Alternatively, I would like to politely suggest that you cancel this notice because rest assured, I will pursue this as far as I have to in order to avoid paying this unfair charge.

Yours Sincerely "[/I]


Many Thanks

Coupon-mad

My appeal has been unsuccessful though, so I now need to make a complaint to POPLA.

I hope you mean you need to appeal to POPLA, you can't have LOST this at POPLA! Easy one to win at that stage, and it's not just about the 21 day period, it's also about the fact PE failed to send a NTH with the hire documents set out in para 13/14 of the POFA.

Try searching this forum for ParkingEye POPLA hirer and change the 'advanced' search to: SHOW RESULTS AS POSTS.

Barutd

Hi


Yes sorry, I mean an appeal to POPLA.


So is it just a case of reiterating what I have said in the appeal to Parking Eye to POPLA regarding the 21 days to sent the notice to keeper?


If so, they obviously just reject appeals so it takes up a bit more of your time in the vain hope that you just pay, idiots.


I'll look for something now, thanks.

The_Deep

They know the rules wrt hired vehicles, they are just wasting your time. Waste theirs, complain to your MP.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

Parking Eye, CPM, Smart, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week, hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers. It has even been suggested that some of these companies have links with organised ccrime.

Watch the video of the Second Reading and committee stage in the House of Commons recently. MPs have a very low opinion of this industry.

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

https://hansard.parliament.uk/commons/2018-07-19/debates/2b90805c-bff8-4707-8bdc-b0bfae5a7ad5/Parking(CodeOfPractice)Bill(FirstSitting)

and complain in the most robust terms to your MP. With a fair wind they will be out of business by early in the New Year.

Barutd

I do have a little bit of experience with PCN's and I have never paid one. I have always been able to write to the landowner or businesses that use the car park to prove I was shopping there and thus get the ticket cancelled though. The landowner in this case however is very mysterious, no one seems to know who it is. The shops that the car park is near have no idea either and no contact with the parking eye either. Thanks to this forum I've found another way though!


I will write to the MP as well, thanks The Deep


So, I've had a look through the POPLA appeals, would this be sufficient?

• [FONT="&amp]Re: [FONT="&amp]ParkingEye[/FONT][FONT="&amp] PCN, reference number xxxx
  [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp] Ref: xxxx[/FONT][FONT="&amp]
  
  I was the of the vehicle relating to the parking charge notice (reference above). I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.
  
  
  1) The Operator failed to deliver a Notice to [/FONT][FONT="&amp]Hirer[/FONT][FONT="&amp] that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (POFA).
  
  2) The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
  
  
  1) The Operator failed to deliver a Notice to [/FONT][FONT="&amp]Hirer[/FONT][FONT="&amp] that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)[/FONT][FONT="&amp]
  
  In order to rely upon POFA to claim unpaid parking charges from a vehicle’s [/FONT][FONT="&amp]hirer[/FONT][FONT="&amp], an operator must deliver a Notice to [/FONT][FONT="&amp]Hirer[/FONT][FONT="&amp] in full compliance with POFA’s strict requirements. In this instance, the Operator’s Notice to [/FONT][FONT="&amp]Hirer[/FONT][FONT="&amp] did not comply.
  
  The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA with the conditions that the Creditor must meet in order to be able to hold the [/FONT][FONT="&amp]hirer[/FONT][FONT="&amp] liable for the charge being set out in Paragraph 14.
  
  Paragraph 14(2) (a) specifies that in addition to delivering a Notice to [/FONT][FONT="&amp]Hirer[/FONT][FONT="&amp] within the relevant period, the Creditor must also provide the [/FONT][FONT="&amp]Hirer[/FONT][FONT="&amp] with a copy of the documents mentioned in Paragraph 13(2) (i.e. (a) 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 a hire agreement; (b) a copy of the hire agreement; and ( c ) a copy of a statement of liability signed by the [/FONT][FONT="&amp]hirer[/FONT][FONT="&amp] under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper). The Operator did not provide me with copies of any of these documents.
  
  Should the Operator try to suggest that there is any other method whereby a vehicle’s keeper (or [/FONT][FONT="&amp]hirer[/FONT][FONT="&amp]) can be held liable for a charge where a driver is not identified, I draw POPLA’s attention to the guidance given to operators in [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp]'s 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or [/FONT][FONT="&amp]hirer[/FONT][FONT="&amp]'s) right not to name the driver whilst still not being held liable for an unpaid parking charge under Schedule 4 of POFA. Although I trust that [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp]'s assessors are already very familiar with the contents of this report.
  
  
  I draw POPLA’s particular attention to the section entitled “Keeper Liability” in which Mr. Greenslade explains that:
  
  “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.......
  .......... However keeper information is obtained, there is no ‘reasonable presumption’ 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”.
  
  Through its failure to deliver a compliant Notice to [/FONT][FONT="&amp]Hirer[/FONT][FONT="&amp], the Operator has forfeited its right to claim unpaid parking charges from the vehicle’s [/FONT][FONT="&amp]hirer[/FONT][FONT="&amp]. For this reason alone, [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp] may determine that the Operator’s claim against me is invalid.
  
  2) 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
  
  In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp] 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 [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp] on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.
  
  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.
  
  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.
  
  Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp] Lead Adjudicator, in 2015:
  
  Understanding keeper liability
  “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 ‘reasonable presumption’ 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.''
  
  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.
  
  This exact finding was made in 6061796103 against [/FONT][FONT="&amp]ParkingEye[/FONT][FONT="&amp] in September 2016, where [/FONT][FONT="&amp]POPLA[/FONT][FONT="&amp] 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.''[/FONT][FONT="&amp]
  
  I trust all my evidence will be considered and I look forward to hearing from you.
  
  Yours faithfully[/FONT][/FONT]

Coupon-mad

I was the hirer/lessee of the vehicle relating to the parking charge notice (reference above). I contend that I am not liable for the parking charge on the grounds listed below and request that they are all considered.

You were missing those words above.

And as safety nets, you also need:

- no landowner authority

- grace periods/Kelvin Reynolds article

- unclear signs

Search the forum for keywords POPLA eleven minutes Kelvin and you will find one to copy those extra points from, which will make for a deliberately very long POPLA appeal to upload as a PDF under 'OTHER' (NOTHING ELSE!).

Barutd

Thanks Coupon Mad, I'll get it updated and sent then post an update when I get a decision.