NTK posted in time but delivered late, strange wording from NCP

CardiffCrank

Hi all,
Thanks to everyone who posts on here, as it's because of you that I knew I could win this one. Surprisingly, I won on direct appeal to NCP. I had already started getting the POPLA appeal ready as I really didn't think the first round was anything but a formality. Here's the timeline:

31/03/2021 - my car in NCP car park for 19 minutes (while driver and passenger argued about whether to park!!)
12/04/2021 - NCP issue me an NTK
14/04/2021 - last acceptable date for NTK to arrive
19/04/2021 - NTK actually arrives.

I had two main points to bring to POPLA. (1) The NTK didn't actually have any language that, on plain reading, transferred liability from driver to keeper. It was just a weird threatening sounding letter. (2) It was late, and they should have known it would be late.

So, in case it helps anyone, here are the arguments I would have made! First, on the language in the NTK.

Liability for a parking charge falls with the Driver, as acknowledged in the NtK. The Keeper of a vehicle can only be held liable for parking charges under very limited statutory grounds, namely the provisions of Schedule 4 of PoFA 2012. There is no other basis in law on which the Keeper may be held liable for a parking charge.

The Creditor did not state in the NtK that they held the Keeper liable for the charge nor did they indicate any intention to hold the Keeper liable in any way. The Creditor did not indicate any intention to rely on the provisions of PoFA 2012 for any purpose. However, the NtK in many ways resembled a notice of the type proscribed in PoFA Schedule 4. For a notice to be relied on for the purposes of paragraph 6(1)(b) of Schedule 4 of PoFA 2012, it must satisfy the conditions laid out in paragraph 9 of that schedule. This is essential as a matter of statute. The NtK does not meet at least two of the conditions laid out there and so cannot be relied on.

The notice is defective in form as it does not state that the Creditor will seek to recover the charge from the Keeper. Paragraph 9(2) specifies the required form of the notice. Paragraph 9(2)(f), in particular, places an obligation on the Creditor to ‘warn the keeper that … the creditor will … have the right to recover from the keeper so much of that amount [the parking charges] as remains unpaid’. The creditor must, by statute, warn the keeper that failure to provide the identity of the driver or pay the charges will result in liability attaching to the keeper. 

The NtK merely states ‘Please be warned: that if, after the period ... further recovery action will be taken to secure payment. Additional charges may be recovered from the liable party if debt recovery action or court proceedings become necessary’. In other words, the Creditor will continue to seek payment of the charge. The NtK does not give any warning to the keeper that it is the keeper who will be the object of that effort. It gives no indication whatsoever that the Creditor will seek to hold the Keeper or anybody other than the driver liable.

Even in the absence of the strict requirements of PoFA, a notice which fails to state any intention to seek recovery of the sum from the Keeper cannot, on its face, transfer liability to the Keeper.

The second defect was the lateness of delivery. I found the T&C for The Delivery Group online and it's fairly clear that they don't consider themselves a mail carrier and that sending things by them is slower than posting them. So I think this argument had legs and I'm almost sorry I couldn't make it! The T&C are here: www dot thedeliverygroup dot co dot uk/wp-content/uploads/2020/03/TDG-Key-Terms-Schedule-2019-new-customer.pdf 
This clearly shows that NCP could nevery expect delivery within the required timeframe.

Even if the notice were in the right form, it was not given within the statutorily required time frame. Paragraph 9(4) specifies requirements as to the delivery of the notice. If sent by post, it must be sent ‘so that it is delivered to that address within the relevant period’. The relevant period, set out in paragraph 9(5), ends on 14 April 2021. The notice was delivered on 19 April 2021. Therefore the notice cannot be relied on to transfer liability to the keeper.

Paragraph 9(6) defines a ‘presumed’ delivery date of the second working day after the date of posting, which the creditor states to be 12 April 2021. A notice sent by post on 12 April 2021 may be presumed to be delivered by 14 April 2021, the final day of the relevant period, ‘unless the contrary is proved’. 

I first argue that the Creditor cannot rely on paragraph 9(6) as, rather than posting the notice directly, it used the services of a mail consolidator to act as intermediary, creating a provably foreseeable delay in delivery. The envelope containing the NtK (Attachment B ) demonstrates that the Creditor placed the NtK in the care of The Delivery Group. It is more likely than not that the date of 12 April 2021 printed on the NtK is the date on which the NtK was entrusted to The Delivery Group. 

The services provided by The Delivery Group are described in Section 2 of the general terms and conditions (Attachment C). If the terms and conditions agreed between NCP and The Delivery Group vary from those in Attachment C, I put NCP to strict proof to demonstrate this by providing the agreed terms and conditions. I believe it is more likely than not that Attachment C is an appropriate description of the services provided by The Delivery Group and will rely on it as such.

Paragraph 2.5 states that ‘The Customer acknowledges and agrees that the Service Provider [The Delivery Group] is a Consolidator of Mail. The Service Provider receives mail from organisations, processes and sorts such mail and then transfers the mail to a Carrier, whom [sic] carries out the final mile delivery of mail to Recipients’. As is clear from the envelope, the ‘Carrier’ in this case was the Royal Mail. Paragraph 2.6 states that ‘The Service Provider will use its reasonable endeavours to deliver Mail to the applicable Carrier within two Business Days of Collection at the Collection Address.’ 

In summary, it is more likely than not that, on 12 April 2021, the Creditor entrusted the Notice to Keeper to The Delivery Group on the understanding that The Delivery Group would then post the Notice to Keeper (by Royal Mail) by 14 April 2021. The actual date of posting can only be demonstrated by The Delivery Group. If the date of posting were indeed 14 April, the presumed date of delivery would be 16 April 2021, which is not within the relevant period.  Only if The Delivery Group passed the NtK to the Royal Mail on the day of collection, 12 April, can the presumed date of delivery fall within the relevant period. It is in my opinion extremely unlikely that The Delivery Group provided this same-day service.

The Creditor cannot rely on a presumed date of delivery which is premised on delivery within two working days by post if they have arranged for an intermediary Consolidator of Mail to carry the NtK from the Creditor to a Carrier of Mail. Collection by a Consolidator of Mail is not equivalent to posting and the importance of this difference is witnessed by the need for customers of the Consolidator of Mail to acknowledge under Paragraph 2.5 that it is a mere Consolidator, not a Carrier. Paragraph 2.6 further states that ‘The Service Provider does not guarantee the actual delivery date of any Item to Recipients and time for performance of the Services is not of the essence.’ If the creditor has agreed with The Delivery Group that time is not of the essence, then it has failed in its obligation under Paragraph 9(4) of PoFA Schedule 4 to send the document ‘so that it is delivered to that address within the relevant period’. By statute, time is, in fact, of the essence. Choosing a delivery method which is intended for communications which are not time-sensitive violates Paragraph 9(4).

Even if the Assessor holds that the day on which the notice is collected from the Creditor by a Consolidator of Mail is equivalent to ‘the day on which it is posted’ (paragraph 9(6)), so that the presumed delivery date is 14 April, I can prove to the contrary by sworn eyewitness testimony that delivery took place on 19 April 2021.

On 19 April, 2021, I observed early in the morning that no mail had been delivered through my front door. Later that morning, I observed that an envelope from ‘The Delivery Group’ had been delivered. I opened it, found the Notice to Keeper, and memorialised the date of receipt immediately by noting it in ink on the face of the document. I also showed the Notice to a family member immediately on receipt. I will submit an affidavit attesting to these facts should the creditor seek to make me liable as Keeper in court. Given that the standard practice of The Delivery Group is to deliver mail to a Carrier within two working days and that the Royal Mail delivers mail within two working days, my statement that I received the Notice on the fifth working day after the Creditor sent it is entirely credible and reflects facts which the Creditor should have anticipated.

So, if anyone else gets an NTK just outside 14 days delivered by one of these batch mailing companies, you might want to try this argument out!

Coupon-mad

That's very interesting and a rare thread because you've told us something new! 

How do you know NCP use The Delivery Group as a (clearly delaying) middleman 'mail consolidator' (their phrase)?

https://www.thedeliverygroup.co.uk/wp-content/uploads/2020/03/TDG-Key-Terms-Schedule-2019-new-customer.pdf

2.5 The Customer acknowledges and agrees that the Service Provider is a Consolidator of Mail. The Service Provider receives mail from organisations, processes and sorts such mail and then transfers the mail to a Carrier, whom carries out the final mile delivery of mail to Recipients.

2.6 The Service Provider will use its reasonable endeavours to deliver Mail to the applicable Carrier within two Business Days of Collection at the Collection Address but the Customer acknowledges and agrees that the Service Provider is not responsible for delays caused by circumstances beyond its control, including road closures and other traffic incidents. The Customer further acknowledges and agrees that the Service Provider uses Carriers for final sortation and delivery of all Items to Recipients. The Service Provider does not guarantee the actual delivery date of any Item to Recipients and time for performance of the Services is not of the essence. Accordingly, the Service Provider shall not be liable to the Customer or to any other person for failure to deliver within the service timeframe set out in the Agreement.

8.2 The Customer acknowledges and agrees that the treatment of all Mail by the applicable Carrier once it is transferred to them pursuant to this Agreement will be the same as in the case of other mail posted via the applicable Carrier and the Service Provider does not keep detailed records of conveyance or delivery of any specific Item.

So, this service collects mail from a PPC or, more likely, prints it for them (if we know for sure that any PPC use this mail consolidator) and can then sit on these batches of mail for two business days before even thinking about 'transferring' it to the Royal Mail, which across a weekend or bank holiday, means it doesn't even reach the Royal Mail for up to a WEEK after the NTK was purportedly dated.

ParkingEye PCNs always arrive about a week after they are dated.  I wonder if they use a mail consolidator/collection service?  

I reckon people could ask for this information under a SAR, of any parking firm:

 ''Regarding companies with whom you share my data, please advise who do you use for the purposes of printing and/or collecting and/or transferring mail to a carrier?  

Do you use a service such as a 'mail consolidator' (batch mailing firm who transfer letters in bulk to a carrier to deliver) and if so, which firm?  

Do they print the letters and therefore have my data in their database, or do they physically collect and distribute pre-printed mail for you?  

Which company was used to print and/or transfer mail including my Notice to Keeper (parking ref xxxxxxx) to the Royal Mail (or other carrier to facilitate final delivery) and when - on what exact or approximate date - was my data passed to that company?''

CardiffCrank

All I had to go on here was the envelope, which has 'The Delivery Group' printed on it at the top right along with 'Delivered by Royal Mail'. There are some bar codes and alphanumeric codes on it that probably allow TDG to trace it. I retained the envelope and would have submitted it as well, and hoped that I had a convincing argument that on balance of probabilities the situation described above is what happened. I mean, I'm pretty sure that is what happened, so why wouldn't an assessor or judge agree! And if something less likely happened, if they have an arrangement with TDG which is for faster delivery, well, they could just say so and prove it, couldn't they?

I think the 'time is not of the essence' phrase is pretty hard to overcome as well.

D_P_Dance

Have you complained to your MP?

Rafaelowell

D_P_Dance said:

Have you complained to your MP?

I have submitted a request to MP but has not received a response, do you have any help?

D_P_Dance

do you have any help?

I have a chap comes in to do a bit of gardening if that is what you mean.

Le_Kirk

D_P_Dance said:

do you have any help?
I have a chap comes in to do a bit of gardening if that is what you mean.

Quite amusing @D_P_Dance but I think you know what the OP was asking for; help to get some response from his MP as you suggested he complain to them.

Umkomaas

D_P_Dance said:

do you have any help?

I have a chap comes in to do a bit of gardening if that is what you mean.

Is that all?  At your age I'd have thought you'd have a nurse and bath attendant! 😄

Le_Kirk

Umkomaas said:

D_P_Dance said:

do you have any help?
I have a chap comes in to do a bit of gardening if that is what you mean.

Is that all?  At your age I'd have thought you'd have a nurse and bath attendant! 😄

He has a Blue Nun who does that for him! 

Coupon-mad

All I had to go on here was the envelope, which has 'The Delivery Group' printed on it at the top right along with 'Delivered by Royal Mail'.

Why have we never noticed that? 

Can you show us a photo of the envelope and the top of the NTK in the same photo (to tally the two together to show this was an NCP eenvelope) as I'd like us to be able to use that as an argument, at least in NCP cases.   

I really wonder if ParkingEye use the same company but we will have to remember to ask people with 'late NTKs' to ask in their SAR!

Hopefully the new statutory CoP (or the audit/scrutiny processes within the framework) will require PPCs to have to show when a NTK was actually posted, in future, because they fail to even show it was sent at all, at the moment.

Umkomaas

I really wonder if ParkingEye use the same company but we will have to remember to ask people with 'late NTKs' to ask in their SAR!

I think PE used Whistl at one stage?