Indigo Railway Parking

Handbags-at-dawn

twhitehousescat wrote: »

"The Byelaws 14(4) state that it is the owner of a vehicle that may be liable for a Penalty.

much like counsil car parks , and many stationary police offences

we are talking magistrates here , NOT civil with pofa 2012

Council parking penalties are completely different. They are recoverable as a civil debt; owners have access to an independent appeal tribunal established by law; and prosecutions are specifically prohibited - see reg 7, Civil Enforcement of Parking Contraventions (England) General Regulations 2007.

A breach of the Railway Byelaws, by contrast, is as you say a criminal matter. Thus only the Magistrates can decide whether or not a parking offence has occurred. Until then the presumption of innocence prevails and no penalty can be imposed.

Thus any penalty issued before conviction is unenforceable. Even fixed penalties for speeding are unenforceable. If you refuse to pay you can be prosecuted for speeding but you can’t be prosecuted for not paying the penalty. Similarly a Byelaws parking penalty is no more than an offer of settlement - by law it can’t be anything else - and an owner cannot be prosecuted for not paying it. It’s not an offence to reject an offer.

The waters are muddied by the badly drafted Byelaw 14(4)(i). But this Byelaw is not a directive which can be breached. It’s no more than a statement of hypothetical possibility: the owner may be liable. The most it could possibly give rise to is a recoverable debt.

If ITAL or anyone else tries to state otherwise, ask them this: at what point in time was the alleged offence committed? When, following receipt of the Notice, does non-payment of the penalty become an offence? Does the owner have one week to pay? Four weeks? Six months? There is, of course, no answer.

Radiomic27

Thanks all for the discussion yesterday, all very interesting.


After my post yesterday I caught up with messages on the '11 Indigo penalties....' thread and this answered the two concerns mentioned. I now understand that under Byelaws we are talking magistates and not CC, therefore criminal and not civil prosecution and also that Indigo's contract forbids them from prosecuting. Many of yesterday's comments above also shed further llight on the situation. I am with Waamo in thinking I don't wan't to poke the potential hornets nest that is ITAL just yet, particularly as it will go nowhere.



Thanks to C-M; my next step will be to contact Indigo regarding Steve Clark's suggestion and I also spotted somewhere that someone was contacting them (Indigo) to complain about them passing the Keepers details to ZZPS in contravention of DVLA (and also, I think GDPR) rules, so that will keep up the ping-pong.

Radiomic27

Just a quick post by way of an update. So far I have written to our MP, the BPA, Indigo themselves and the TOC. All responses are either negative or of little help, mostly passing the buck.



Despite raising this with Indigo, we have still not been offered an 'independent' appeal but we have received another letter from ZZPS and the 'charge' has now risen to £170. Bizarrely, on the same day as receiving the letter I got an email from ZZPS requesting I contact them immediately on 'personal business matter'. yeah right!


I have also submitted a complaint to Transport Focus who have said they will respond within 35 days.


I will be writing to Indigo in a few days, again re the lack of independent appeal and also questioning their right under GDPR legislation/DVLA rules to impart the RK info to ZZPS. I have today submitted a query/complaint to DVLA re this and intend to do the same with the ICO once I have written to Indigo.


The only thing I am a little uneasy about is that we will be out of the country from the last week in April until the first week of June and therefore I will be unable to keep up the ping-pong. It will be 6 months from the incident at the end of May. I hope that this lack of contact will not provoke a more drastic escalation of the situation, although from what has already been said and what I have read here, this is not an option available to anyone but the TOC. Is this a fair estimation of the situation?


Thanks in advance.

waamo

As someone far better than I said Don't Panic. They can't do anything so just sit it out.

Radiomic27

We are now back from 6 weeks away as mentioned previously. As the original incident occurred on the 29th November, 6 months have now passed at the end of May and I therefore assume that the ability to prosecute in the Magistrates Court has expired under the statute.


On our return however, we found 2 letters dated 7th & 23rd May respectively fron QDR Solicitors of Leamington Spar stating that their client MAY decide to pursue the 'debt' in the County Court (which has now risen to £182), pointing out the consequences of such action, should a judgement be obtained.


Is there any legal basis for Indigo (Saba) to now chase this through the CC? If we just ignore this and any further correspondence from them could a summons be issued against the keeper? If not, should I write to them and demand that they stop this harrasment?

waamo

It's either a byelaws offence or a contractual charge. It can't be both. If it's a contractual charge then they are obliged to offer POPLA.

Report them to the BPA and DVLA for blatant misrepresentation.

nosferatu1001

Their basis is they will claim it was somehow a civil charge all along.
Theyre not prohibited from running a contractual model as well. its just harder AND they CLEARLY cannot hold the keeper liable
So you need ot check - did they mention byelaws initially? If so they cant change their mind

You could respond back, pointing out they have no prospect of success as they said it was byelaws, thus not possible to pursue in the CC (if they did!), AND regardless they canot pursue the Keeper as they are FULLY aware this land is "not reelevant land" for the purpose of POFA2012. As such any aciton would be vexatious, leaving htem open to you claiming your full costs on the indemnity basis, at £19 per hour.

Handbags-at-dawn

It’s a new tactic. Have a look at posts 53 onwards on this Pepipoo thread, where they’ve done the same thing.
http://forums.pepipoo.com/index.php?showtopic=125339&pid=1491119&st=40&#entry1491119
You must complain in very strong terms to the DVLA.

The penalty notice is and always has been an offer to avoid prosecution. It can’t suddenly morph into a breach of contract claim.
a) A contract is a legal agreement. The driver’s obligation to pay arose not from an agreement between the parties but from the Byelaws as set out on the signage. That’s a statutory order, nothing to do with the driver’s agreement.
b) if there was an agreement, the terms were varied by the ticket clerk. You asked for a ticket to the following day and that’s what he issued.

It is also a breach of the Data Protection Act to use your personal details for a purpose incompatible with the original purpose for which it was obtained. To use it for the purpose of making an offer to the owner to avoid prosecution under the Byelaws is not compatible with using it to sue the driver for breach of contract. Particularly as for breach of contract they have to justify the amount claimed in damages.

Coupon-mad

That's a useful link from Handbags-at-dawn, and a useful post by Gary Bloke:

The DVLA does not allow parking operators to use a mixture of contract law and Byelaws at the same time. Parking operators must choose one or other form of parking management and stick to it. This is demonstrated in the emails released in response to Freedom of Information Request 302420. On pages 15 and 16, the DVLA writes to the Legal Counsel at NCP as follows:

“We note the position you are in with railway car parking but we would restate that if you are operating the railway car parks under Byelaw 14 then that must be clear on the signage, communications and tickets and if you are operating the car parks under contract then that needs to be clear on signage, communications and tickets. We will not release data for those sites where it is not clear to the users which you are using or where you may decide after the event which you will use (byelaw prosecution or contractual breach)”.

Radiomic27

Thanks for the replies Waamo, Nosferatu, Handbags & Coupon-Mad. I have had a look at the Pepipoo thread. I didn't think that once the 6-month deadline re Magistrates Court had passed it could suddenly become a Civil matter!


I shall write to the DVLA, the BPA and the Solicitors Regulatory body to complain as suggested variously and will report back the responses.



We are only around for 4 months before again departing abroad for up to 7 months and I do not want to be returning to any nasty surprises! I now know from previous advice that it is about developing a thick skin and not giving in to intimidation, but sometimes one has to remind oneself of this.


What I do know is that without this forum we would have probably capitulated a long time ago. Good work all!