unpaid PCN, court hearing letter - case CLOSED

Coupon-mad

i can't find that reply.

Yes you can.  It is in my replies from yesterday.

Will take you 5 minutes to find.  I said how and where to look, all good forum research practice.

kokolino23

Coupon-mad said:

Remove the adherence section but keep these, adapted as shown (and re-number all paragraphs). Put this one before you talk about the POFA (so para 3, maybe?):

-  The Defendant believes that the PCN was issued without allowing the driver a reasonable time to read the contract the onsite signage.  The timings on the Claimant's photographic evidence of the vehicle were taken from 12:32:56 to 12:33:40 which is less than 1 minute.  The PCN was therefore issued without allowing the driver any grace period to agree to any terms or conditions, which is a serious breach of the BPA Code of Practice.

And this (below) should go immediately under your para that puts them to struct proof of full compliance with the POFA (because there is no period of '42 days' in Schedule 4!)

-  A Notice to Keeper ('NTK') was sent to the Defendant which bizarrely referred to a period of 42 days.  There is no period of '42 days' (at all, not by any calculation) set out in Schedule 4 of the POFA.  This is just one example of non-compliance with the POFA in this case.  There is also a notable absence of any evidence of a breach of a 'relevant contract/relevant obligation' and/or 'adequate notice' of the parking charge on prominent signs placed where a driver could easily read the terms.

- The Defendant submits that the NTK was a 'non-POFA' (only capable of driver liability) alternative version, seen in cases where a parking operator has not been able to comply with (or does not intend to rely upon) the keeper liability provisions of Schedule 4.  Knowing that they used this particular wording in their NTK, by continuing to pursue a registered keeper who they know was not the driver, the Claimant would be (either by accident or design) misleading the court and this consumer, about liability under the only applicable law.  The Defendant submits there is no cause of action against the registered keeper and will rely on the persuasive appeal case of Excel Parking Services Ltd v Smith and the words of expert parking law barrister and Lead Adjudicator, Henry Greenslade, in the POPLA Annual Report 2015 about cases where 'keeper liability' cannot pass.

The reply was given to myself (thanks a lot once again!) and it's included in my Defence Paragraphs 4 & 5.

Coupon-mad

Ah good. But you appeared to have missed the point when you replied earlier today about the NTK.

No they don't have to repeat the discount if it was offered in a windscreen PCN.

kokolino23

Coupon-mad said:

Ah good. But you appeared to have missed the point when you replied earlier today about the NTK.

No they don't have to repeat the discount if it was offered in a windscreen PCN.

The keeper should also be informed about a discount, that's how I read it. Was £0 discount, if the driver was offered one, the keeper should've also had it IMO.

Anyway, The NTK must
specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

There is no period of parking at all on the NTK, just the time of the incident. This is not what the law says.

Coupon-mad

Agreed, you can add those as other observations of non-compliance but IMHO the bizarre '42 days' is the killer one.  We've used it in POPLA appeals to beat UKPC before and no other PPC has ever used that weird timeline, ever!

kokolino23

Hello again, last piece of the puzzle for me ATM and I need your help, please.

IMO, both PCN and NTK didn't follow the POFA so I need another parapgraph to cover this in my Defence.

https://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted#schedule-4-paragraph-8

a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates

g) inform the keeper of any discount offered for prompt payment

They should've had the period the car was parked but none of them has ?!

The PCN has the issue time while first time seen is BLANK. NTK only mentioned the time when the PCN was issued, there is no period at all.

Secondly, according to this link, NTK should include the discount also mentioned on POFA

https://www.parkingcowboys.co.uk/notice-to-keeper/

the NTK should have

Details of the discount for payment within 14 days,   The Discount should be at least 40% of the full charge under the BPA Code of Practice (applies to BPA members only).

UKPC Ltd are a BPA member (not sure if they were in 2017 though)

https://www.britishparking.co.uk/BPA-Members

So NTK did not follow this either.

Is the below Paragagraph looking OK to you, please?

The Claimant issued an NTK to the Defendant, but the parking period is not mentioned as required in Schedule 4 of POFA. Same NTK did not inform the keeper of any discount offered for prompt payment as required by both POFA and British Parking Association where the Claimant is a member.

Many thanks

kokolino23

@D_P_Dance, @KeithP, @Le_Kirk, @Redx, @coupon-mad, @patient_dream, @fruitcake

Would be possible to review my last Paragraph mentioned on the above post before I'll submit my Defence, please?

Thanks a lot

KeithP

I am a great believer in spelling things out. It removes all ambiguity and doubt from the reader's mind.

So my para would look like...
The Claimant issued an Notice To Keeper to the Defendant, but the parking period is not mentioned as required in Schedule 4 of Protection of Freedoms Act. That same Notice to Keeper did not inform the keeper of any discount offered for prompt payment as required by both POFA and British Parking Association - the Claimant's trade association.

kokolino23

@KeithP Thank you very much indeed, really appreciated. Defence ready so I can email it over by Friday afternoon.

Coupon-mad

The 42 days thing is far more important and they do NOT have to offer a discount under POFA, if it was already offered initially on the windscreen PCN.  These last additions are minor compared to the obvious non-POFA '42 days' (make it up as you go along) rubbish!