Non PoFA NTK - appeal dismissed

W4LS

Hi there, grateful for your advice please as my NON POFA NTK appeal has been rejected by the IAS.

I received a non POFA NTK but I was not the driver. I’ve followed the great advice on this site but my appeal has been rejected by the adjudicator (IAS). The operator states that it’s lawful to pursue me as the keeper because they can presume that I was the driver and they were transferring liability to me and that the charge was based in contract. They cited Elliot v Loakes (but I don’t believe this is a valid case as the circumstances were different and it pre-dates POFA). I explained that they couldn’t do this because, by their own admission, their notices were not compliant with POFA (e.g. the notice arrived outside of the 14 day period) and the law doesn’t allow them to transfer the liability to the keeper from the driver unless they comply with POFA. I’ve asked them for photos of me driving (I wasn’t driving so knew they couldn’t produce any) but they said they take photos of the reg and car only to show a contravention has occurred. I said they should be reminded of the general legal principle that they needed to prove their case with evidence and they don’t have any (as I genuinely wasn’t driving). I also cited two legal precedents that demonstrate this e.g. vehicle control services v Quayle (2017) and Excel Parking Services v Lamoureux (2016). Both judges said that the operators must comply with POFA if they want to transfer liability to the keeper. The judge on the 2016 case said “there is no reasonable presumption in law that the registered keeper of a vehicle is the driver...I do not even need to rely on R (Duff v Secretary of State) everybody knows that you cannot assume the keeper is the driver which is why most parking companies rely on POFA. The defendant denies he was the driver and the claimant has absolutely no evidence that he was the driver ...as your correspondence does not refer to POFA 2012 you cannot therefore transfer liability to the keeper nor does the keeper have to name the driver whatsoever...”.

Despite this, the adjudicator at the IAS has dismissed my appeal. Is the IAS dodgy? I cannot fathom why it’s been rejected based on the cases I’ve cited. The IAS do say it’s not a legally binding decision and that they’ve looked at whether the charge has a basis in law and was properly issued but the adjudicator is silent on the points I raised  e.g. S/he does not appear to have taken into account at all whether there is legal basis for transferring liability to the keeper (when the keeper was not the driver) and especially when the operator states that they do not comply with PoFA. They appear to have reached the decision just based on whether someone drove the car onto the private  land. But they do say:

 “The terms of this appeal are that I am only allowed to consider the charge being appealed and not the circumstances of other drivers or other parking events. The guidance to this appeal also makes it clear that I am bound by the law of contract and can only consider legal challenges not mistakes or extenuating circumstances. S/he then refers to the signage as compliant ....it is clear that the appellant did indeed stop/park ...I am satisfied the operator has the authority to issue and enforce PCNs at this site...and that the correct Appellant is pursued..” I’ve been given 14 days to pay.

But there is no evidence of me driving because I genuinely wasn’t driving! 

I’d really appreciate your views. Many thanks indeed.

D_P_Dance

Nine times out of ten these tickets are scams, so consider complaining to your MP., it can cause the scammer extra costs and work, and in some cases, cancellation. 

Parliament is well aware of the MO of these private parking companies, many of whom are former clampers, and on 15th March 2019 a Bill was enacted to curb the excesses of these shysters. Codes of Practice are being drawn up, an independent appeals service will be set up,

Just as the clampers were finally closed down, so hopefully will many DVLA's date base more rigorously policed, persistent offenders denied access to the DVLA database and unable to operate.

Hopefully life will become impossible for the worst of these scammers, but until this is done you should still complain to your MP, citing the new legislation.

http://www.legislation.gov.uk/ukpga/2019/8/contents/of these Private Parking Companies.

Just as the clampers were finally closed down, so hopefully will many of these Private Parking Companies.

BrownTrout

Of course that would lose at the ias.   Beatable at court 

Umkomaas

Is the IAS dodgy?

Is the Pope Catholic?

I'd ask the DVLA to investigate this, they may be able to ask some awkward questions. Why not also rev up your MP and get them involved. 

Which PPC?

Fruitcake

What happened when you complained to the landowner?

Please tell us the name of the PPC and also where the alleged event happened.

Have you complained to your MP yet about this unregulated scam?

Coupon-mad

I received a non POFA NTK but I was not the driver. I’ve followed the great advice on this site but my appeal has been rejected by the adjudicator (IAS).

You haven't followed our advice then.  Oh no, don't tell us you read the awful MSE article and thought that was how to appeal and that appealing to IAS was a good thing?  The info on 'the MSE site' is pretty hopeless.
You can't win at IAS by using the POFA, because the system is (sadly/allegedly - according to all accounts we've seen for years) bent.  Eliott v Loake has no application but the IAS anonymous assessors pretend it does.

 Is the IAS dodgy? 

Hahahaha!!!  You definitely were not following the advice on this forum.  Did you miss post #3 of the NEWBIES thread telling you not to try IAS ...clearly.  This has been known for years:

http://parking-prankster.blogspot.com/2017/01/will-hurleyt-defends-outdated.html

http://parking-prankster.blogspot.com/2016/01/is-independent-appeal-service-kangaroo.html

http://parking-prankster.blogspot.com/2015/10/corruption-scandal-continues-at.html

W4LS

Thanks very much for your replies. Apologies I didn’t follow all the threads properly. It can be a little confusing between the MSE formal site and the forum threads, especially when you’re new to this. There are also so many threads to follow it adds to the confusion. 

The PPC is I-park services who are a member of the IPC. The location is the NFU car park in Penrith. No notice was put on the windscreen. I’ve only received a NTK but this says ‘NON POFA’ so they admit they don’t comply with the legislation. The NTK was served 17 days after the alleged contravention. They use Manual Number Plate Recognition (MNPR) but when I asked for a photo showing that I was the driver they said they don’t use MNPR for this purpose. They won’t have a photo in any case because I wasn’t driving. I have at least two people who are prepared to write witness statements stating that I was not driving too.

Their case is that it is based in contract and they allege that I was the driver. They’ve also added, in their initial prima facie case to the IAS, that they issued a ticket on the date of the alleged contravention. But this is completely untrue. The NTK does not refer to a ticket having been issued and there are no photos in their case submission to the IAS showing that a ticket was issued at the time. They’ve made this up. But I focussed on their NON POFA notice and the fact there is no keeper liability, as per the threads on this site, the court cases above, and because the Ombudsman focuses on this too and doesn’t take into account other points if keeper liability cannot be proved (from what I’ve read).

I appealed on the grounds they cannot transfer liability to the keeper as they are knowingly not complying with POFA. I cited the two court judgement above (in my original post) but these appear not to have been taken into account. 

However, I’ve since read that this and the IAS are owned by Gladstones (or were) so there’s clearly a potential conflict of interest.

Nevertheless, I followed their own procedure because, if it gets to court, I wanted to show that I had followed their stated process. 

What do you all advise please? Do you have experience of this firm or similar cases please?  I suspect I will receive a debt collector’s letter or a letter before action next. I’m prepared to go to court based on the two cases I mention above where the judges concluded there was no keeper liability and the PPCs could not transfer the alleged charge to the keeper from the driver. 

Doesn’t the PPC need to show that I was the driver, rather than presuming that I was? Have there been any other cases since 2017 please? Or anything else I should be doing?

i haven’t yet complained to the landowner (I’ve not been able to find out who it is). But I will now complain to my MP etc. I didn’t think I could complain to the DVLA because the PPC is a member of an “accredited” firm, the IPC, so I understand that they can obtain my details from the DVLA.

many thanks again.

Coupon-mad

They’ve also added, in their initial prima facie case to the IAS, that they issued a ticket on the date of the alleged contravention. But this is completely untrue.

And illegal, can't have happened.  you said the NTK was dated 17 days after the event, therefore they can't have put a notice o the car first because they wouldn't have been able to get the data from the DVLA until day 29 if they had (para 8 of POFA).  But yours was issued by post (para 9 applies, or alternatively a non-POFA PCN as in your case). 

No windscreen was hurt during this process!

There is no Ombudsman.

The PPC is I-park services

Tiny firm, but most IPC members currently are likely to sue and most use Gladstones.  And we win 99% of the time in court, so this is what's likely to happen.  No need to stay on this thread, stick around and become a regular reader of all court/Gladstones threads and see how we win, so you are ready when it's your turn!

BrownTrout

I services dont issue windscreen tickets :)tiny Cumbrian firm

Castle

BrownTrout said:

I services dont issue windscreen tickets :)tiny Cumbrian firm

Although their web site claims they have "over 20 years experience in the industry"; which is pretty good going, considering they weren't incorporated until August 2018.

Coupon-mad

Anyone with a decade or more experience in the parking ''industry'' was surely a thug clamper back in the day.  Nothing to be proud of, mingling with the likes of Levi Bellfield.