Late PCN, how do you prove it?

kernow999

"If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!) the a postal PCN must arrive by day 14 if there was no windscreen ticket." said by coupon mad in the newbie bit
I have smartparking bpa pcn, incident 29/10/22, letter dated 11/11/22= 14 days, delivered to me 16/11/22 = 19 days, how do i prove it arrived on day 19 and therefore outside of the deadline???????
0r is the 14 days late enough?? How do i know smartparking "allege keeper liability under pofa 2012, as most pcn deadlines are 28 days

KeithP

Is this about the same parking incident as your other Smart Parking thread?
Please don't start a new thread just because you have a new question.

Did you read this in the same part of the NEWBIES thread that you are quoting from?...

kernow999

Yes it is, however from a completely different angle and therefore as its a separate subject i feel it warrants a new thread.

Fruitcake

Remember that the date of the alleged event is day zero. 

The Interpretation Act 1978, Practice Direction 1985, and PoFA 2012 all state that a document sent by first class post is deemed to have arrived two working days after the issue date, and four days if sent by second class post.

Whatever date is on the NTK, add two working days, then see if that is after fifteen days from the date of the event.

As KeithP said, the wording on a PCN/NTK is just as important when determining if it is or is not capable of holding the keeper liable.

Interpretation Act 1978
Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression ” give ” or ” send ” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Practice Direction [1985] 1 All ER 889 states that, unless the contrary is proved, First class mail is deemed delivered on the second working day after posting, and Second class the fourth working day after posting. “Working Day” means Monday to Friday not including Bank Holidays.

kernow999

Fruitcake said:

Remember that the date of the alleged event is day zero. 

The Interpretation Act 1978, Practice Direction 1985, and PoFA 2012 all state that a document sent by first class post is deemed to have arrived two working days after the issue date, and four days if sent by second class post.

Whatever date is on the NTK, add two working days, then see if that is after fifteen days from the date of the event.

As KeithP said, the wording on a PCN/NTK is just as important when determining if it is or is not capable of holding the keeper liable.

Interpretation Act 1978
Where an Act authorises or requires any document to be served by post (whether the expression “serve” or the expression ” give ” or ” send ” or any other expression is used) then, unless the contrary intention appears, the service is deemed to be effected by properly addressing, pre-paying and posting a letter containing the document and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.

Practice Direction [1985] 1 All ER 889 states that, unless the contrary is proved, First class mail is deemed delivered on the second working day after posting, and Second class the fourth working day after posting. “Working Day” means Monday to Friday not including Bank Holidays.

Thank you, Fruitcake, adding 2 days from date of pcn gives 15 days (a sunday, no deliveries). Therefore 16 days minimum, ie it could not arrive before day 16, any grounds for pofa 2012?

KeithP

But never mind the dates, the wording on the PCN isn't good enough to transfer any driver's liability to the keeper, is it?

Please re-read my earlier post.

kernow999

KeithP said:

But never mind the dates, the wording on the PCN isn't good enough to transfer any driver's liability to the keeper, is it?

Please re-read my earlier post.

Thank you KeithP, i seemed to getting date obsessed, are you saying that because smartparking do not use pofa 2012, they are unable to transfer liability from named keeper to actual driver (as long as driver is unknown) and therefore any popla submission will be rejected?

KeithP

kernow999 said:

KeithP said:

But never mind the dates, the wording on the PCN isn't good enough to transfer any driver's liability to the keeper, is it?

Please re-read my earlier post.

Thank you KeithP, i seemed to getting date obsessed, are you saying that because smartparking do not use pofa 2012, they are unable to transfer liability from named keeper to actual driver (as long as driver is unknown) and therefore any popla submission will be rejected?

Yes that's what I am saying - although the correct PoPLA decision cannot be guaranteed.

Have you already appealed to Smart?
I guess I'll have to go back to your earlier thread to find the answer and I won't be doing that.
I say again... one incident, one thread.

Coupon-mad

As KeithP says, this is what the NEWBIES thread says and as Smart are NOT saying you are liable as keeper (they never use the POFA) you win at POPLA as long as you appeal only as keeper:

If they are a firm which alleges 'keeper liability' under the POFA 2012 (which they don't have to!) the a postal PCN must arrive by day 14 if there was no windscreen ticket.
Or, the NTK must arrive with you between day 29 and day 57 if there was a windscreen PCN.

Some firms (e.g. Civil Enforcement, Highview, Smart Parking, CP Plus and some small PPCs) don't even bother with POFA 2012wording so the keeper is not liable and you must you point that out to POPLA. 

Smart do not fall into the bracket of that first paragraph.  

Please ask any other questions on your thread.