14 Day Rule for Receiving a NTK

JustRaider

Hi,

The driver of my car parked in a small lay-by off a main public
road in front of a row of six shops. As it was just after 9pm at
night, it was dark and there was no entrance sign on driving
into the lay-by, so the driver did not realise that the lay-by was
on private land. On returning to the lay-by the next evening it
was noted that just 3 car parking signs were attached to
the shop walls at irregular intervals and they were not
illuminated.

The lay-by had ANPR cameras in use so I received a Notice to
Keeper PCN through the post 15 days after the incident. I was
not the driver so I should be able to appeal on the grounds of
"Keeper liability", as the company failed to deliver the notice to
me within 14 days. However, the NTK was delivered to my
house on a Saturday. As this is not a week day does this count ?
Also, how do I prove that it was delivered in 15 days as there
was no post mark with a date on the envelope. POFA 2012
Section 4, paragraphs 8 (2) (i) states : “A Notice to Keeper
should specify the date when the notice was sent." The NTK I
received does not contain this date. There are only 2 dates on
the NTK which are : Incident date 15/2/2019 and PCN issue
date 27/2/2019.

Under POFA 2012 Para 4 the rule for sending a NTK is as follows
"A notice sent by post is to be presumed, unless the contrary is
proved, to have been delivered on the second working day after
the day on which it is posted; and for this purpose working day
means any day other than a Saturday, Sunday or a public
holiday in England and Wales." Therefore if the NTK had been
posted on the 27/2/2019 then after 2 working days I should
have received it on the Friday 01/03/2019 at the latest.
However I received it the next day (the 15th day). Again
how do I prove all this ?

Thanks,
JustRaider

Umkomaas

With an incident date of 15 Feb, the NtK had to arrive by 1 March for the PPC to have any hope of invoking keeper liability. The days' count includes weekends, high-days and holidays.

However I received it the next day (the 15th day). Again
how do I prove all this ?

Who do you want to prove it to?

Is there any indication on the envelope as to whether sent first or second class delivery?

Which parking company?

JustRaider

Hi Umkomaas,
Thanks for you advice.

The parking company is CEL. I need to prove that I received
a late NTK to the parking company and POPLA. Surely, the parking
company will say something like "Well we posted it early enough.
How do we know it arrived on the Saturday".

On the envelope it states : Royal Mail "2nd Class".

KeithP

As you say, the NtK was deemed delivered on 1st March.

You will have an uphill struggle to prove that it arrived later than that.

Unfortunately, POFA makes no distinction between 1st and 2nd class post.

Umkomaas

Unfortunately, POFA makes no distinction between 1st and 2nd class post.

That shouldn't prevent you making a very firm point within any POPLA appeal that, given the date of issue and the fact that the NtK was posted second class (evidence the mark on the envelope) that on the balance of possibility (probably even greater than that) the NtK could not have been received within the statutory time limit for CEL to invoke keeper liability.

Turning to the actual NtK, does it contain a paragraph about the Protection of Freedoms Act 2012, which commences 'You are notified under paragraph 9(2)(b) of Schedule 4 ..... '. And a further paragraph which commences 'You are warned that if, after 29 days from the date given ....'?

JustRaider

Hi Umkomaas,

The NTK does not contain any paragraph relating to The Protection
of Freedom Act 2012.

Umkomaas

JustRaider wrote: »

Hi Umkomaas,

The NTK does not contain any paragraph relating to The Protection
of Freedom Act 2012.

If it's the first letter you've received (rather than a reminder) from CEL, then, without that warning, they cannot hold the RK liable. It's more powerful than trying to argue your dates points in isolation at POPLA (but you build them in to make this rock solid on no keeper liability).

So you send CEL the initial appeal template from the NEWBIES FAQ sticky, post #1, either as it is, unaltered, or you could add a final paragraph to the effect that as their NtK doesn't meet the strict requirements of PoFA, you as the RK have no liability to them. Suggest they therefore take it up with the driver. Hopefully they'll realise they're shot, and cancel.

If they plough on with a rejection, you will win this at POPLA with a suitably constructed appeal to them.

JustRaider

Hi Umkomaas,

Thanks for that excellent advice. I'll prepare an appeal letter using
the template. The notice states that an appeal can be made on their
website or by post. I'll probably use their website as its quicker than
post.

The Protection of Freedom Act 2012 Section 4, paragraphs 8 (9) (7)
states : “When a Notice to Keeper is given it must be accompanied
by any evidence.” On their notice it says they have photographic
evidence of this incident, but they haven't included it.

I'll therefore add the following paragraph to my appeal letter :

You state that you have photographic evidence. Should this
not have been sent with the Notice to Keeper ? Please send
me the photographic evidence of my car in the alleged
parking bay. Without such evidence the Notice to Keeper
PCN is invalid, as per POFA 2012 Section 4, paragraphs 8 (9) (7).

Fruitcake

The scammers might say it would have arrived in time and ask you to prove a negative. However, you state you require a proof of posting, not a proof of issuing/printing etcetera. It could have been generated and left in the mail out tray for a day before being posted.

Using second class post helps you because the Interpretion Act states,

Interpretation Act 1978
Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression ” give ” or ” send ” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Practice Direction [1985] 1 All ER 889 states that, unless the contrary is proved, First class mail is deemed delivered on the second working day after posting, and Second class the fourth working day after posting. “Working Day” means Monday to Friday not including Bank Holidays.

Umkomaas

JustRaider wrote: »

Hi Umkomaas,

Thanks for that excellent advice. I'll prepare an appeal letter using
the template. The notice states that an appeal can be made on their
website or by post. I'll probably use their website as its quicker than
post.

The Protection of Freedom Act 2012 Section 4, paragraphs 8 (9) (7)
states : “When a Notice to Keeper is given it must be accompanied
by any evidence.” On their notice it says they have photographic
evidence of this incident, but they haven't included it.

I'll therefore add the following paragraph to my appeal letter :

You state that you have photographic evidence. Should this
not have been sent with the Notice to Keeper ? Please send
me the photographic evidence of my car in the alleged
parking bay. Without such evidence the Notice to Keeper
PCN is invalid, as per POFA 2012 Section 4, paragraphs 8 (9) (7).

I wouldn't go any further than stating that their NtK is not PoFA compliant, don't give them any help. You might find photos of the vehicle on their website by using your PCN number and VRM.

Unless you know precisely what you are doing, the more you tinker with trying to find a cast iron guarantee of cancellation, the more you risk inadvertently messing up.

Appealing through their website is safest, but I'd take a screenshot of your appeal just before pressing the 'Submit' button.

Coupon-mad

Keep that envelope and use it at POPLA stage as POPLA are not the brightest at understanding keeper liability (the old POPLA service used to get it; this one doesn't, and needs words of one syllable, unfortunately).