Questions about Schedule 4 of POFA

ihatetrump

Apologies if this has been asked before, but I've trawled through the NEWBIES thread and elsewhere and not entirely sure on this one. 

I've started this under a new username (Yes, I do hate Trump!) as I don't want to identify myself - I've used the forum before and received advice, for which I am grateful.

In a nutshell - driver (family member but not me - I'm the registered keeper) failed to pay a private parking charge in time for a 24 hour stay back in early 2019 - paid via app an hour later. No notice or ticket was left on the vehicle and first knowledge of anything was letter from cowboy operator demanding £100 on an original £3.30 charge. FCN issued 3 days later (ignored) and all future correspondence ignored. If I'd seen the forum earlier I maybe would have done things differently but hey ho, I didn't. I had one telephone conversation with the BW Legal over  year later, told them to back off as parking fee had been paid and I wasn't the driver - this conversation has been verified through an SAR.

Needless to say BWL did not back off and have pursued me all the way to now County Court. I then discovered the forum, followed the template, filed my defence and answered Directions Questionnaire (N180) - all within time. 

So here's my questions:
1.
 

Umkomaas

So here's my questions:
1.

Well that's easy to answer!  Napier Parking I presume?

ihatetrump

Somehow managed to post before finishing typing - oops!
1. contravention is failure to display valid ticket/permit - how do you display a ticket when you paid by app while travelling on train? Is there any defence here?
2. In my defence I've said - The claimant did not comply with the ‘keeper liability’ requirements set out in the Protection of Freedoms Act 2012, Schedule 4.. Now I'm not stupid and I've now read POFA multiple times, but from a layman's point of view - what are the common failures here? what should I be looking for (or have looked for?)

Many thanks for all the time you guys put into this Forum. And thanks for any response.

ihatetrump

Yes Napier - but how the hell?? not surprising you're an expert with 31.5k posts

Umkomaas

ihatetrump said:

Yes Napier - but how the hell?? not surprising you're an expert with 31.5k posts

To my knowledge they're the only PPC that uses the term Fixed Charge Notice (FCN), simples really, you gave it away! 😄

1. If that's what the charge is, you make that impossibility the part of your defence and let the judge determine. You've a very strong point!

2. Period of parking to be shown, and if the NtK was delivered within just 3 days, then para 9 of PoFA Schedule 4 comes into play, especially them getting the correct warning onto the NtK specifically 9(2)(f), but there may be other issues within para 9 to pick at.  But you do know that they don't have to use PoFA per se, but that means they cannot hold the keeper liable, but with their IPC cohorts they have brought in the charge they have issued the charge 'on the presumption that the keeper was also the driver'. You should be bombproof if you weren't the driver, so if you have some proof that you were not, that adds to your hand. It doesn't mean you provide an 'admission from the driver', but you might have a work schedule to show you being somewhere else, for example. You will need to get a good understanding of PoFA so that you're confident in delivering the points in court - if it ever gets there. 

ihatetrump

Thanks for the input - much appreciated. So now I'm studying para 9 of PoFA Schedule 4 alongside the response I got under my SAR. Might be getting into minutia here, but thoughts and comments appreciated. FCN refers to a period of parking of just over 13 minutes with failure to clearly display a valid parking ticket/permit. Evidence in the FCN only has 2 photos of vehicle taken 8 seconds apart - that's it- not exactly proof of a 13 minute violation. SAR request provided more photos but again only covering a period of just over 2 minutes - does this mean that if necessary I could argue that the PPC has provided no proof of the period of violation and this is in fact disputed?

Redx

Of course , but your main defence would be timescales and wordings , plus any minutia as well

If they failed POFA , they fail , because you were not the driver , so have no responsibility in law

The real question with those timings is grace periods , under the IPC CoP , which cannot be 8 seconds !! The 13 minutes is considered beyond any reasonable grace period

But you did give it away with FCN , whereas we would have no clue had you said PCN

For POFA compliance , check if it has the standard pofa warning on the NTK , if after 28 days , as seen on Parking Eye NTK PCN letters

ihatetrump

Thanks @Redx for your response. Just in terms of the photo evidence in total is more than a dozen photos but all taken within a 2 minute spell - not exactly of a grace period - also who is to know if the time was correct on their camera? I've seen motoring speeding offences fail because of no proof of calibration of speed cameras. I can produce a photo of the car today taken on a digital camera that could be easily dated a couple of years ago - proves nothing. If the time of the photo was manipulated out by an hour, that would make all the difference!

They did appear to comply with the the standard PoFA wording on the NTK, but I will study it some more. 

I know that another piece of advice you often give is about No Landowner Authority - any tips on how I can go about proving that one at such a late stage? I think the PPC may have even lost the contract now.

D_P_Dance

Do not forget to complain to your MP?

Redx

I think that Napier own the land or have land owner authority , so although you can try , I suspect it's a distraction

You can argue all the minutia in court , where a judge decides , judge bingo , it's their job to adjudicate v, not ours

As a defence and WS you put the claimant to strict proof of landowner authority , proof they complied with POFA , proof the signage adequately forms a contract , etc

If you get a fair judge and the claimant has holes in the case , you win , if they have closed all legal loopholes and technicalities , you lose

So if you have a losing set of arguments , no amount of salad dressing will improve the result

On the other hand , they must win on POFA alone to even home you liable as a non driver , hence this POFA thread

nosferatu1001

Do you dispute teh vehicle was there? If not, then saying "but they could have manipulated the time" doesnt help
Odd - a lack of calibration cert has no bearing on speeding offences. Hasnt ben anything to raise for years now
Maybe just show us the FCN?