NTH POPLA Appeal - would you mention a previous case?

Skraivok

Hi,

I received a PCN for an overstay from Euro Car Parks and appealed on the basis of POFA, since I have a company car and responded as hirer using the advised template. As expected, they rejected it and I am now about to proceed with the POPLA appeal.

In 2022 I also received a PCN from Euro Car Parks for a company car and followed the forum advice for my appeal to be successful with POPLA, due to a failure of Euro Car Parks to comply with POFA (rational of the assessor below):

In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. In this case, the operator has issued a PCN to the keeper of the vehicle for, parking longer than the maximum period allowed. The appellant has identified as the hirer of the vehicle in question. The driver of the vehicle on the date in question has not been clearly identified and the operator is therefore pursuing the hirer of the vehicle for the charge in line with the Protection of Freedoms Act (PoFA) 2012. PoFA requires that when pursuing a parking charge from the hirer of a vehicle, an operator obtains from the keeper of the vehicle “a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement”, “a copy of the hire agreement” and “a copy of the statement of liability signed by the hirer under that hire agreement.” POFA also requires that an operator issues a “notice to hirer” as well “a copy of the documents mentioned, and the notice to keeper.” The operator has not provided evidence to show they have received the required documents to issue a notice to hirer. As they have not met the requirements of PoFA. For the reasons outlined above, I consider the PCN to be invalid and so, I must allow this appeal. All other grounds raised do not require any further consideration.

As I am appealing on the same grounds as my previous case (exclusively on non-compliance with POFA), would it be advisable to reference the verification code of the previous assessment? The aim would be to facilitate consistency of judgement.

From scanning some of the posts, it would seem POPLA are rejecting appeals based on POFA in some cases.

Gr1pr

I would definitely reference it

Skraivok

Below is my response that i intend to submit,vast majority is taken from the template in the forum, I've simply added the last part (highligted in bold). I just require a sanity chck to ensure i've not missed any points that should made.

"I submit that the parking charge notice received (reference ) is invalid. The car park operator (Euro Car Parks) has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

In this case, no other party apart from an evidenced driver can be told to pay. As there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge, which they cannot. Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015: Understanding keeper liability

'There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.There is no 'reasonable presumption' in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.' Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA. This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found: ''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''

Based on my outlined position and with reference to a decision in a previous case by one of your assessors (Verification Code 1234567), which also found that the operator had not provided evidence to show they have received the required documents to issue a notice to hirer and consequently not met the requirements of PoFA, I request that my appeal is upheld and the existing parking charge cancelled."

Gr1pr

I wouldn't use the word invalid, I would use the word unenforceable

Coupon-mad

Remove all of that blurb and just say:

I have identified as the hirer of the vehicle in question. The driver of the vehicle has not been identified and the operator could only pursue the hirer of the vehicle for the charge if they fully complied with paragrapghs 13 and 14 of Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. They did not.

PoFA requires that when pursuing a parking charge from the hirer of a vehicle, an operator obtains from the keeper “a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement”, “a copy of the hire agreement” and “a copy of the statement of liability signed by the hirer under that hire agreement.” POFA also requires that an operator issues a “notice to hirer” as well “a copy of the documents mentioned, and the notice to keeper” and serves them to the hirer.

The operator has not done any of this. There were no enclosures. Therefore, hirer liability is impossible in this case abd POPLA cannot conclude that the PCN was properly given.

Skraivok

Many thanks !

Skraivok

Just looking at the POPLA appeal process, would i select:

"I was not the driver or the registered keeper of the vehicle at the time of the alleged improper parking" which stipulates

• You bought the vehicle after the alleged improper parking.
• You sold the vehicle before the alleged improper parking.
• You hired a car, but were not the hirer at the time of the alleged improper parking.
• You were not the driver at the time of the alleged improper parking.
• You provided the driver's details, but the parking company continued to pursue you.

or "other" as this case is based on non-compliance with POFA? It states that appeals based on other are likely to be less successful.

Gr1pr

We always recommend OTHER, regardless, and have done for over a decade

Coupon-mad

But this is already in post 3 of the NEWBIES thread, in the advice section about POPLA.