Euro Car Park PCN received for rental car

Redx

It is rare to elaborate on the circumstances , especially if the claimant failed POFA , the law

I would not be mentioning anything at all about the incident , these PCN,s are usually won on a legal technicality , which is POFA

Your circumstances are that you were the hirer and you have no liability due to non compliance with POFA by the claimant , those are the circumstances !! (Unless you know different)

Your desire to tell your story could be the same as firing a gun whilst getting it out of the holster , namely , shooting yourself in the foot

turgidstrop

Great thank you Redx and everyone else for your help.  Sorry if I've made hard work of this!   So I can just substitute Highview for Euro Car Parks and I'm good to go?

Fruitcake

turgidstrop said:

Thank you Keith and Coupon-mad.  I think I understand which part of the thread you are referring to: there are 3 links above where it says "Thanks to Edna Basher for the template appeals above." Where I was confused is that not all of those were attributed to Edna.  So presumably the one you are referring to is this https://forums.moneysavingexpert.com/discussion/comment/69859059#Comment_69859059

which I understand to be appealing on the grounds that the operator have not followed proper procedures and timescales with regard to supplying the rental company with the PCN.  So my question is, does is apply in my case or should I be adjusting the template to better fit my circumstances?   I was advised of the citation by the rental comany on 28/9/20 and I my NTH was issued 10/10/20.  

Thanks in advance!

The first line of the post you have quoted says, "At this stage you're just after a POPLA code, so something short and sweet would do the trick."

PoPLA is where you will win this as long as the drier's identity is not revealed.
You have a read written template to get a PoPLA code.
Don't go making extra work for yourself and risk blowing your toes off.
Send the template exactly as it is, and research Hire/Lease PoPLA appeals whilst you await the probable rejection of your initial appeal.

Just remember to change the name of the PPC in your initial appeal.

Redx

turgidstrop said:

Great thank you Redx and everyone else for your help.  Sorry if I've made hard work of this!   So I can just substitute Highview for Euro Car Parks and I'm good to go?

Obviously, just adapt it to suit the correct PPC and any corrections to the details, do not start adding jackanory stories

turgidstrop

Thanks again folks, I have sent it off now.  I will get on that thank you Fruitcake!

turgidstrop

Well I have received my appeal rejection email and I have been reading up on the POPLA appeals.  Euro Car Parks put the following in their rejection letter:

The Protection of Freedoms Act(PoFA) does not alter the principle of driver liability. What it does do, is to allow proceedings against the registered keeperfor unpaid parking charges when the landowner or their agent, the parking operator does not know who the driver wasat the time.The creditor/operator mustfollow the procedures set out in PoFA Schedule 4 to achieve the benefits of keeper liability.Ican confirm the parking charge notice was issued correctly and remains payable

So am I right in thinking if there is no mention of POFA 2012 on the original NTH (there isn't that I can see) this is what I should use in the POPLA appeal?  I noticed that the there was a template but that it only applied to ParkingEye, is there a specific template I should use in this instance?  Thank you in advance!

nosferatu1001

If they haven't met hirer liability then obviously that applies whether it is parking eye or someone else. The law is the law. 

It is ONE PART of your appeal. Landowner contract and signage always included 

Redx

Whilst the answer is , yes they can pursue the Driver , if known , the lease company can only comply with POFA and name the hirer or lessee

The hirer or lessee appeals it to the PPC and then to Popla

If the claimant failed to comply with an optional law.  POFA , then a keeper or hirer has no liability

So if you have a Popla code , no landowner authority , poor and inadequate signage and POFA non compliance should get a winning result

It is the naive or ignorant people who blab about who was driving that tend to lose

Red tape , procedures , the law , a Claimant must prove their case

Coupon-mad

turgidstrop said:

So am I right in thinking if there is no mention of POFA 2012 on the original NTH (there isn't that I can see) this is what I should use in the POPLA appeal?  I noticed that the there was a template but that it only applied to ParkingEye, is there a specific template I should use in this instance?  Thank you in advance!

Copy an appeal about a NTH that someone has already used to win at POPLA.  Find one by working your way back from the end of the POPLA Decisions thread - I know for a fact someone this year posted about winning on NTH failure to enclose the documents, and will have put a link to their thread in their success post on that sticky thread.

turgidstrop

Thanks Coupon-Mad.  I have been reading through POPLA appeals thread as suggested, and studying in particular VelvetyFrog and Kernewekjak but I haven't been able to locate their actual appeals.  Following the latters ciation however I have found a post from yourself in 2016 and have added the assessor's comments from Velvetyfrog's post for good measure and come up with the following:

The Operator failed to deliver a Notice to Hirer that was fully compliant with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 ('POFA')

In order to rely upon POFA to claim unpaid parking charges from a vehicle's hirer, an operator must deliver a Notice to Hirer in full compliance with POFA's strict requirements. In this instance, the Operator's Notice to Hirer 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 hirer liable for the charge being set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer 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 hirer under that hire agreement), together with a copy of the Notice to Keeper.

The Operator did not provide me with copies of any of these documents, (a), (b) or (c).

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. The Operator's Notice to Hirer refers only to the Notice to Keeper, not to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide me with a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, the Operator failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2) of Schedule 4 of POFA.

Should the Operator try to suggest that there is any other method whereby a vehicle's keeper (or hirer) 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 POPLA's 2015 Annual Report by Henry Greenslade, Chief Adjudicator in which he reminded them of a keeper's (or hirer'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 POPLA's assessors are already very familiar with the contents of this report, for ease of reference I set out a link as follows:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

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'.

In addition, recent appeals to POPLA have been upheld under similar circumstances, here I quote Assessor Amy Smith:

The driver of the vehicle has not been identified. Therefore, the operator is pursuing the hirer for the PCN. As such I need to consult with the provisions of the Protection of Freedoms Act (PoFA) 2012. For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the hirer of the vehicle, the regulations laid out in the PoFA 2012 must be adhered to. Schedule 4 paragraph 13 (2) of PoiFA 2012 states: “ (2) 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.” Having reviewed the operator’s evidence I can see that the operator has not provided any of the documents which are required under 13 (2) of PoFA 2012. As such, I am unable to determine that the operator has successfully transferred liability to the hirer of the vehicle and must allow this appeal as PoFA 2012 has not been met. Whilst I acknowledge that the appellant has raised other grounds, I have not considered them as PoFA 2012 has not been met. Accordingly, I must allow this appeal.

Through its failure to deliver a compliant Notice to Hirer, the Operator has forfeited its right to claim unpaid parking charges from the vehicle's hirer. For this reason alone, POPLA may determine that the Operator's claim against me is invalid.