OPS IAS appeal rejected.

BayConfused1234

Hi all,

I have read the NEWBIES thread and understand that after losing at IAS there is nothing I need to do unless I receive a proper Letter Before Claim or court claim.

I wanted some advice on a few specific points in my case and also what I should realistically expect if it does end up in court.

This is an OPS residential parking charge.

The vehicle was in a resident’s allocated numbered bay for around 17 minutes while helping the resident move boxes and belongings into a flat.

There were repeated trips between the vehicle and the flat. Loading and unloading was genuinely taking place as part of the move, although it was not physically continuous every minute because there were periods inside the building.

The resident had given permission for their allocated bay to be used.

For the IAS appeal I supplied:

• A signed witness statement from the resident confirming permission to use the bay and that belongings were being moved.

• Same day WhatsApp messages discussing the move, boxes and using the vehicle because it had more space. Oparater says this proves I was the driver however it just confirms I and my car and others where there.

• The operator’s photographs.

• The operator’s site map.

I also relied on Jopson v Homeguard.

Another point I raised was POFA Schedule 4.

The Notice to Keeper says that the creditor does not know the name of the driver or a current address for service for the driver.

However, I cannot find the warning required by paragraph 8(2)(f), which I understand should warn that if the charge remains unpaid after the relevant period and the driver remains unidentified, the creditor may recover the unpaid charge from the keeper subject to the Schedule 4 requirements.

Instead, the NTK appears to only refer generally to debt recovery and or County Court proceedings.

The driver has never been identified to OPS or IAS.

OPS said they were pursuing the keeper as the driver and relied on Elliott v Loake.

The IAS accepted this and said that because no evidence had been provided showing that the keeper was not the driver, OPS was entitled to assume the keeper was driving.

The IAS therefore said POFA compliance was not relevant because OPS were pursuing the appellant as driver rather than keeper.

They also rejected the loading and unloading argument and said that loading and parking are not mutually exclusive and that the terms contained no unloading exemption.

The main things I am trying to understand are:

If the NTK is missing the paragraph 8(2)(f) wording, does that prevent OPS from relying on keeper liability?

Does Jopson potentially apply where genuine unloading was taking place during a residential move but was not physically continuous every minute?

If this reaches a hearing, can the District Judge directly ask the defendant whether they were driving?

Can the judge also ask who the driver actually was if the defendant has never identified them to the parking company?

Coupon-mad

"If the NTK is missing the paragraph 8(2)(f) wording, does that prevent OPS from relying on keeper liability?"

Yes, if it is missing. No keeper liability.

"Does Jopson potentially apply where genuine unloading was taking place during a residential move but was not physically continuous every minute?"

Yes. IIRC, Jopson was about a lady carrying a table up flights of stairs. The car was photographed unattended.

"If this reaches a hearing, can the District Judge directly ask the defendant whether they were driving?"

Yes, they can ask.

Personally, if driving, I would defend as driver. It's a much more straightforward witness position and Judges hate silly games. They've usually been grumpy old gits in most cases where I've spoken for Defendants in court as a lay rep. You don't want to annoy a judge.

"Can the judge also ask who the driver actually was if the defendant has never identified them to the parking company?"

No. You would not have to name that person. But if it wasn't you, I'd knock this on the head by proving it to OPS now, by evidencing either where you were (at work?), or showing your photo ID if the photos show a different person at the wheel.

Is this at a Brighton or Worthing location?

Le_Kirk

They always "rely on Elliot v Loake" which was a criminal case using forensic evidence and did not relate to a parking case. Check the wording on the NTK against other NTKs you will find in @Coupon-mad's list of non-POFA NTKs linked from the NEWBIE sticky and use its full name to find it - One Parking Solution. If it is non-POFA, then yes, OPS cannot use keeper liability. Jopson v Homeguard is correct to use.

Elliott v Loake (1982) is a criminal case where the court concluded the registered keeper of a car was also the driver because physical and forensic evidence proved it, not because a keeper is automatically presumed to be the driver.

They are trying to con you!

The above recently posted by @James_Poisson

95Rollers

Don't worry too much, its very unlikely for anyone to win at the IAS or OPS appeals stage. There was a newspaper article in The Times where the Director of OPS openly boasted they'll never let anyone off a parking ticket! All useful material should the matter go to court.