Is the lack of warning in NtK a failure of PoFA?

yetneveragain

A friend has received the NtK below. Having read up on PoFA, I note that the PoFA section of the NtK on the back, second paragraph, reads as follows:

"You are advised that if, after a period of 28 days...". I note that PoFA paragraph 9(2) states that:

• 9(2) The notice must—

Paragraph 9(2)(f) states:

• 9(2)(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

A warning is a formal notice highlighting legal consequences, while advice is guidance or recommendations offered, which individuals can choose to follow or not. Warnings are more directive and carry a stronger legal implication, whereas advice is more consultative and informative.

Considering that there is a significant difference between advice and a warning, does that constitute a technical breach of the validity of the NtK being compliant and therefore unable to hold the RK liable?

troublemaker22

Sorry but that argument has no wings and would crash on take-off.  I don't think POPLA or a County Court judge will accept that the keeper has not been warned of the consequences laid out in 9(2)(f).

You might be able to construct a better argument based on whether both parts of the invitation required by paragraph 9(2)(e) have been given.

Do remember that POFA compliance is not the be all and end all.  A driver's liability can only be transferred to the keeper under POFA if the driver is liable and the driver may have good defences such as inadequate signage or lack of appropriate landowner authority.

And appeal is likewise not the be all and end all.  This is a classic retail park overstay case.  If the driver was a legitimate visitor to the park (whether as a customer or supplier) the park manager should be able to organise cancellation.

yetneveragain

Thank you @troublemaker22 for the opinion. I did discuss this with a family member who is a district judge and he said that if it was brought up in a defence that he was hearing, it would have some weight but would probably require other facts to convince him that a claim should be dismissed.

At this stage, my friend is awaiting the result of the initial appeal to ECP. I appreciate that a POPLA assessor would most likely not accept the argument that the NtK is deficient and the RK could be liable. As usual, if the initial appeal is rejected, the arguments about the poor ECP signage, time parked as opposed to time on-site etc. will be used at POPLA. If it is raised as a deficiency, it will have to be rebutted by ECP and I wonder if they are even likely to notice it and just respond with their usual template rubbish.

The site is managed by Savills and I have told my friend to approach them with a complaint and to see if they will get ECP to cancel the PCN. At the end of the day, my friend is happy to let this run all the way to court, if necessary.

Below are some photos of the site that my friend has collected since his daughter received the PCN.

1. The location where car was originally parked. Where the blue car is in the photo. Note no obvious signage.

2. The entrance to the retail park. Note that the single sign is barely noticeable under the similar conditions on the date of the event.

3. An example of the terms sign. Note the height and the font size.

4. The same sign as viewed without flash. Barely visible at night.

I will also be suggesting to my friend that they argue the BPA CoP breaches of 18.4 where, if they intend to rely on PoFA to hold the RK liable, the signs must give adequate notice and that they must adequately bring the charges to the attention of the driver. Also, BPA CoP 21.1 where there is inadequate notice of what the ANPR is being used for: 

21.1 Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

None of ECPs signs mention ANPR. Just a mention on the barely visible entrance sign that the car park is "camera controlled".

Umkomaas

At POPLA signage is a much stronger argument than one based on PoFA and a slightly imperfect NtK. Please look over the PoFA Decisions Announcement, pinned near the top of the forum thread list, go back around 12 months and have a read of the decisions going against ECP primarily based on the visibility of the £100 charge as its font size does not come anywhere near that of the ParkingEye 'exemplar' sign viewed by The Supreme Court as sufficient. 

Ust that argument in any POPLA appeal. The NEWBIES FAQ Announcement, third post, provides near-template appeal points to use, should they be necessary. Has a complaint been made to the landowner yet?

21.1 Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.

None of ECPs signs mention ANPR. Just a mention on the barely visible entrance sign that the car park is "camera controlled".

Doesn't fly. 

1505grandad

A heads-up  -  if you use/quote the BPA CoP make sure it is the latest version #8 dated January 2020.

fisherjim

Never use photos taken with a flash, the idea is to show how poor the signage is not to illuminate it for them!

troublemaker22

I agree with all the previous suggestions.  Another trick is always to include a challenge to landowner authority in the POPLA appeal because quite often the PPC fails to provide landowner authority evidence to the right standard in its evidence upload and POPLA assessors seem keen on holding PPCs strictly to account on this one.

In the POPLA appeal I just say:

The operator has failed to prove that it owns the land or was authorised by the landowner to issue and enforce parking charges for contraventions on the relevant date, and the appellant reserves the right to expand on this in light of any evidence or argument advanced by the operator.

During the 6 days (it says 7 but the day you received the notification is day 1) you have in which to comment on the operator's submission, check whether they've provided evidence of landowner authority and, if so, whether it ticks all the boxes in the Code of Practice.  Here for example are some POPLA decisions on the subject:

1.      POPLA assessor Gemma West on 12 July 2022 who ruled as follows:

….. In the present case, the appellant has challenged landowner authority. Having reviewed the operator’s evidence pack, the operator has provided a copy of its contract agreement. I can see that it is stated that the contract period commences on the effective date and expires on 31 March 2020 . There is no evidence that the contract was renewed or that it automatically renewed. Therefore, I am unable to determine that the contract was valid. As a result of this, I am therefore unable to determine that the parking charge notice has been issued correctly. Accordingly, this appeal must be allowed…  (POPLA verification code 6061252494)

2. POPLA assessor Rebecca Appleton on 21 September 2023 who ruled against Parkingeye as follows

It is the parking operator’s responsibility to demonstrate to POPLA that it has issued a PCN correctly. In this case the appellant has challenged the operator’s authority to issue PCN’s at this car park. I have reviewed the evidence provided and must note that the operator has not responded to this with either a signed agreement or a witness statement. As a result, I cannot conclude they have rebutted the appellant’s grounds and I must allow this appeal. Whilst I note the appellant has raised other grounds in this case, as I have allowed the appeal for the reasons above, I will not be considering them. (POPLA verification code 6061863341).

yetneveragain

troublemaker22 said:

Sorry but that argument has no wings and would crash on take-off.  I don't think POPLA or a County Court judge will accept that the keeper has not been warned of the consequences laid out in 9(2)(f).

You might be able to construct a better argument based on whether both parts of the invitation required by paragraph 9(2)(e) have been given.

Do remember that POFA compliance is not the be all and end all.  A driver's liability can only be transferred to the keeper under POFA if the driver is liable and the driver may have good defences such as inadequate signage or lack of appropriate landowner authority.

And appeal is likewise not the be all and end all.  This is a classic retail park overstay case.  If the driver was a legitimate visitor to the park (whether as a customer or supplier) the park manager should be able to organise cancellation.

In contrast to your statement in this thread (point #4): https://forums.moneysavingexpert.com/discussion/comment/80498637/#Comment_80498637 where you state:

troublemaker22 said:

The boys and girls at POPLA seem decent enough sorts but they are not legally qualified and they struggle with even the most basic legal concepts.  Some of them are particularly challenged by POFA and have handed down some spectacularly wrong decisions in relation to it.  So whenever I lodge a POPLA appeal that relies on a POFA argument, I make a point of starting as follows, almost like a mantra (obviously changing as necessary to take account of the facts of the particular case):

1.      The appellant appeals as keeper. The appellant is not obliged to identify the driver and declines to do so.

2.      The operator has candidly admitted in its purported “Notice to Keeper” (the “NTK”) that it does not know the identity of the driver:

[quote the bit on the NTK where it says they don't know the name and address of the driver]

3.      Section 21 of the BPA AOS Code of Practice explains what an operator must do in order to hold a keeper liable when it does not know the name and address of the driver:

21.1 ……. Because of the difficulties of identifying who drivers are and where they live, the law in England and Wales now allows car park owners and operators to recover unpaid parking charges from registered vehicle keepers, or, where relevant, from vehicle hirers.

21.2 Schedule 4 of POFA 2012 creates the new legal basis to claim unpaid parking charges from vehicle keepers and hirers. As long as the strict conditions of Schedule 4 are met, you may claim payment from the keeper or the hirer of the vehicle rather than from the driver. To do this you need to follow the procedures set out in the Schedule.

 4.  Please note that strict compliance is required. Partial or even substantial compliance is not sufficient.

Why would the argument I proposed regarding the strict wording in PoFA that states particular wording MUST be used and in the case of the NtK is not used make it an invalid point to use in a POPLA appeal? Obviously, it will not be the only point of appeal but it will certainly be a valid point, especially if used with the preamble you suggest.

As I have already mentioned, a district judge has already confirmed to me that it is a valid point and should be used in any subsequent defence, should it ever proceed that far, that would invalidate the reliance of the claimant on PoFA to hold the RK liable.

troublemaker22

Because (with all due respect to the learned judge) the statute doesn’t prescribe a form of words. It says the notice “must warn the keeper”. Can I warn you of something without using the word “warn”?  If you are about to step on a banana skin and I shout “Stop!  There’s a banana skin in front of you!” can you claim that I didn’t warn you about the banana skin because I didn’t use the word “warn”?

troublemaker22

There’s nothing to stop you including bad arguments as well as good ones, but if I were you I’d give greater prominence to the good ones 

Coupon-mad

troublemaker22 said:

There’s nothing to stop you including bad arguments as well as good ones, but if I were you I’d give greater prominence to the good ones 

Agreed.  The POFA point has no legs.

But that's the Goldstone Retail Park!

The site of the lovely old BHAFC Goldstone ground in Hove that some stalwart fans boycott, to this day, due to the history.

Savills will cancel it and alternatively, I'll hold the victim's hand if they get sued.  ECP are not litigious.  Get Savills to step in.