3 x PCNs from EXCEL. Doh!

FGLLA

Snakes_Belly said:

https://www.derbytelegraph.co.uk/news/derby-news/flood-complaints-siddals-road-car-8470668.amp

I think that the driver may have struggled to find the app for this car park and the default app was the NCP. It seems to have happened to a number of other people.

This has happened in my area whereby drivers have struggled to access an app on an Excel car park and have moved but have gone over the 10 minutes allowed to park. 

It might be an idea to get the MP involved. Whilst Excel will not take any notice of letters from MP's it can put pressure on landlords. 

True this car park in particular has raised many many complaints!
and another one jus 2 days ago:
https://www.derbytelegraph.co.uk/news/derby-news/flood-complaints-siddals-road-car-8470668

Coupon-mad

FGLLA said:

Fruitcake said:

B789 is correct. Nowhere in Schedule 4 of the PoFA 2012 does it state "on the assumption you were the driver". There is no warning that the keeper can be pursued either.
Therefore, the NTK is not PoFA compliant and therefore incapable of holding the keeper liable.

Normally we don't suggest an IAS appeal, but it might just work as long as you state categorically that the keeper was not the driver, and that the NTK is not PoFA compliant so the keeper cannot be held liable.

For any NTK not already appealed, you can try it anyway on the appeal portal or send the appeal by post, first class from a Post Office counter, and obtain the important free proof of posting.

Alternatively you could send a cease and desist order stating much the same, quoting all three PCN numbers.

I understand the driver assumption part, however, doesn't the extract from PoFA below warn that the keeper would be liable to pay (if all conditions were met)?
or do "pursue" and "right to recover" have different meanings also?

PoFA:

" (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Yes, of course the POFA says that. But it's not the PoFA that Fruitcake was talking about here!

"There is no warning that the keeper can be pursued either."

FGLLA

Coupon-mad said:

FGLLA said:

Fruitcake said:

B789 is correct. Nowhere in Schedule 4 of the PoFA 2012 does it state "on the assumption you were the driver". There is no warning that the keeper can be pursued either.
Therefore, the NTK is not PoFA compliant and therefore incapable of holding the keeper liable.

Normally we don't suggest an IAS appeal, but it might just work as long as you state categorically that the keeper was not the driver, and that the NTK is not PoFA compliant so the keeper cannot be held liable.

For any NTK not already appealed, you can try it anyway on the appeal portal or send the appeal by post, first class from a Post Office counter, and obtain the important free proof of posting.

Alternatively you could send a cease and desist order stating much the same, quoting all three PCN numbers.

I understand the driver assumption part, however, doesn't the extract from PoFA below warn that the keeper would be liable to pay (if all conditions were met)?
or do "pursue" and "right to recover" have different meanings also?

PoFA:

" (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Yes, of course the POFA says that. But it's not the PoFA that Fruitcake was talking about here!

"There is no warning that the keeper can be pursued either."

So just to be clear, there is no warning in the NTK that the keeper can be pursued, as the NTK assumes the keeper is the driver, which is not true in my case?

Umkomaas

FGLLA said:

Coupon-mad said:

FGLLA said:

Fruitcake said:

B789 is correct. Nowhere in Schedule 4 of the PoFA 2012 does it state "on the assumption you were the driver". There is no warning that the keeper can be pursued either.
Therefore, the NTK is not PoFA compliant and therefore incapable of holding the keeper liable.

Normally we don't suggest an IAS appeal, but it might just work as long as you state categorically that the keeper was not the driver, and that the NTK is not PoFA compliant so the keeper cannot be held liable.

For any NTK not already appealed, you can try it anyway on the appeal portal or send the appeal by post, first class from a Post Office counter, and obtain the important free proof of posting.

Alternatively you could send a cease and desist order stating much the same, quoting all three PCN numbers.

I understand the driver assumption part, however, doesn't the extract from PoFA below warn that the keeper would be liable to pay (if all conditions were met)?
or do "pursue" and "right to recover" have different meanings also?

PoFA:

" (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Yes, of course the POFA says that. But it's not the PoFA that Fruitcake was talking about here!

"There is no warning that the keeper can be pursued either."

So just to be clear, there is no warning in the NTK that the keeper can be pursued, as the NTK assumes the keeper is the driver, which is not true in my case?

Not sure what you're trying to unpick.  The NtK is not PoFA compliant, therefore the keeper cannot be held liable in law. But whether the IAS will be able to stomach that remains to be seen. If you were definitely not the driver, categorically state that, but expect the IAS to not accept that unless you can prove it.  Can you provide proof?

B789

It is not for you to prove you were not the driver but for the PPC to prove that you were. There can be no assumptions made. Just because you are the RK does not allow the PPC, or anyone else, to presume you were also the driver.

In law, the driver and the RK are two separate entities. Only the police or a local authority can oblige the RK to reveal the identity of a driver. A scamming, unregulated, private parking company is neither and cannot assume anything.

Umkomaas

It is not for you to prove you were not the driver but for the PPC to prove that you were.

But the IAS will accept the PPC's assertion that the keeper was also the driver. The IAS won't help the motorist without proof. Perverse I know, but that's the reality, and that's why we're getting a new appeals service next year!

FGLLA

Umkomaas said:

FGLLA said:

Coupon-mad said:

FGLLA said:

Fruitcake said:

B789 is correct. Nowhere in Schedule 4 of the PoFA 2012 does it state "on the assumption you were the driver". There is no warning that the keeper can be pursued either.
Therefore, the NTK is not PoFA compliant and therefore incapable of holding the keeper liable.

Normally we don't suggest an IAS appeal, but it might just work as long as you state categorically that the keeper was not the driver, and that the NTK is not PoFA compliant so the keeper cannot be held liable.

For any NTK not already appealed, you can try it anyway on the appeal portal or send the appeal by post, first class from a Post Office counter, and obtain the important free proof of posting.

Alternatively you could send a cease and desist order stating much the same, quoting all three PCN numbers.

I understand the driver assumption part, however, doesn't the extract from PoFA below warn that the keeper would be liable to pay (if all conditions were met)?
or do "pursue" and "right to recover" have different meanings also?

PoFA:

" (f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Yes, of course the POFA says that. But it's not the PoFA that Fruitcake was talking about here!

"There is no warning that the keeper can be pursued either."

So just to be clear, there is no warning in the NTK that the keeper can be pursued, as the NTK assumes the keeper is the driver, which is not true in my case?

Not sure what you're trying to unpick.  The NtK is not PoFA compliant, therefore the keeper cannot be held liable in law. But whether the IAS will be able to stomach that remains to be seen.

If you were definitely not the driver, categorically state that, but expect the IAS to not accept that unless you can prove it.  Can you provide proof?

I'm just trying to understand the "There is no warning (in the NtK) that the keeper can be pursued either." part that Fruitcake mentioned.

The NtK mentions:
"we may pursue you (the Keeper) on the assumption you were the driver"

To me the first part reads that the Keeper can be pursued?
Why does this not apply as the warning to the Keeper? Because they assume the Keeper to be the Driver? They don't use the exact PoFA wording?
EDIT: I've just read B789's reply regarding the Driver and the RK being separate entities which I believe now explains this.

Have I got the below correct?
The NtK is non-compliant to PoFA 2012 due to:
- Non-compliant to PoFA section 9 paragraph 6 regarding when the Notice is given/delivered.
- PoFA does not allow the keeper to be assumed to be the driver.
- The NtK does not include PoFA wording in regards to Keeper liability.


I definitely wasn't the driver. ANPR was used to log the entry and exit times with pictures of the front and rear of the vehicle, which includes the driver. Whilst the printed pics on the NtK aren't the best, it's quite clear the driver doesn't look like me. The original digital pictures should show this more clearly? Would this be enough proof?

I could probably show bank statements/transactions I was elsewhere.

Coupon-mad

The POFA is not based on any 'assumption that a keeper was the driver". Quite the opposite! 

If it were that simple, Schedule 4 would never have been needed at all.  Think about it...

This invention by Excel has also been tested on appeal and Excel lost.  And we have the transcript to prove the Judge's findings.

Search the forum for a link to the transcript of Excel v Smith (appeal). You'll need it as a court exhibit to educate your Judge to understand that those words are NOT POFA compliant and a persuasive decision at Circuit Judge level has already dealt with this rubbish.

Snakes_Belly

The NtK mentions:
"we may pursue you (the Keeper) on the assumption you were the driver"

This is Excel's own interpretation. They can make the assumption but it's meaningless. 

FGLLA

Hi All,

Finally received the court court claim papers (at a previous address!) and managed to file the AoS just in time, so I'm just preparing a defence and WS to submit soon.

Please could you check through my defence below?
Where do I input the part about non compliant to POFA?

Many Thanks,