Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@.

Search
  • FIRST POST
    • MariJane
    • By MariJane 9th Aug 18, 12:58 AM
    • 4Posts
    • 0Thanks
    MariJane
    Popla Appeal - Comment on Evidence Provided
    • #1
    • 9th Aug 18, 12:58 AM
    Popla Appeal - Comment on Evidence Provided 9th Aug 18 at 12:58 AM
    Dear all,

    I'm hoping that I have posted in the correct place. I have received a PCN from a company and have followed the steps as suggested on this site. E.g. appeal to company which was rejected and then move onto a popla appeal (please see the appeal letter below).

    The grounds for appeal were based on the fact that the NTK failed to meet the obligations of schedule 4 of the POFA act 2012. Wherein that the NTK was dated a month after the alleged incident occurred. As well as the fact that the company have not provided sufficient information that supports them owning the land. The company have however, attached evidence to support that the land ownwer (supermarket) gives the parking company permission to provide tickets to vehicles.

    I have now been asked by Popla to provide a comment on the evidence provided by the company. Can you please help?

    Thank you.

    Original Popla Appeal Letter:

    I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.

    The NTK failed to meet the POFA requirements to transfer liability to the Registered Keeper. I quote below the relevant sections from POFA and I contend that I am not liable for this parking charge on the basis of the below points:

    The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. The Notice to Keeper was dated XX/XX/XX when the alleged incident occurred on XX/XX/XX.

    1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

    Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions are met, as stated in paragraphs 5, 6, 11 & 12. ParkingEye have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

    ’’The notice must be given by (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’
    The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

    The NTK sent to myself as Registered Keeper was issued on XX/XX/XX when the actual date of event is recorded as XX/XX/XX, a difference of more than 4 weeks. This means that ParkingEye have failed to act in time for keeper liability to apply. Furthermore, it is clear that ParkingEye know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with 4 complete paragraphs being omitted from the ‘PARKING CHARGE INFORMATION' section on the reverse side of the notice, and no reference to ‘keeper liability’ or the POFA.

    2) The operator has not shown that the individual who it is pursuing is in fact 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. I am the appellant throughout (as I am entitled to be), and 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, because they cannot use the POFA in this case, 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. They cannot – they will fail to show I can be liable because the driver was not me.

    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.''

    No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''

    3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

    As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

    Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

    Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

    Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

    7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.
    7.3 The written authorisation must also set out:
    A) The definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
    B) Any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
    C) Any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
    D) Who has the responsibility for putting up and maintaining signs.
    E) The definition of the services provided by each party to the agreement.

    4) The Operator has not shown evidence that the current ANPR system is reliable, accurate or maintained. Parking Eye have provided no evidence that the ANPR system is reliable. The operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.

    It is vital that this Operator must produce evidence in response to these points and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss by the Operator in Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence form the Operator was 'fundamentally flawed' as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

    Parking Eye has not provided any evidence to show that their system is reliable, accurate or maintained. I request that you uphold my appeal based on this.
Page 1
    • Umkomaas
    • By Umkomaas 9th Aug 18, 8:46 AM
    • 18,891 Posts
    • 29,762 Thanks
    Umkomaas
    • #2
    • 9th Aug 18, 8:46 AM
    • #2
    • 9th Aug 18, 8:46 AM
    I have now been asked by Popla to provide a comment on the evidence provided by the company. Can you please help?
    You go through the evidence and rebut anything and everything that you disagree with or which is fundamentally incorrect. Anything you don't rebut could be taken by POPLA that you accept their assertions- so go through it carefully.

    You only have 2,000 characters (not words) to play with, so use short, sharp bulletpoints to make your rebuttal statements. Please note that you cannot add new evidence not originally entered in your original POPLA appeal.

    By the way, your POPLA appeal seemed to cover well the main issue of 'No Keeper Liability' - I'm surprised PE didn't throw their cards in earlier.
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • The Deep
    • By The Deep 9th Aug 18, 9:01 AM
    • 9,968 Posts
    • 9,764 Thanks
    The Deep
    • #3
    • 9th Aug 18, 9:01 AM
    • #3
    • 9th Aug 18, 9:01 AM
    This is a scam, read this


    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors.

    Parking Eye, CPM, Smart, and another company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each year). They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

    Hospital car parks and residential complex tickets have been especially mentioned.

    The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the House of Commons recently

    http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41 recently.

    and complain in the most robust terms to your MP. With a fair wind they will be out of business by Christmas.
    You never know how far you can go until you go too far.
    • MariJane
    • By MariJane 9th Aug 18, 11:45 AM
    • 4 Posts
    • 0 Thanks
    MariJane
    • #4
    • 9th Aug 18, 11:45 AM
    • #4
    • 9th Aug 18, 11:45 AM
    Thank you for your response!

    The company have included pictures of the vehicle on the ANPR and have images of the signs around the car park most of which were dated 2013 and a few more recent which were dated 2018. They have also included lots of documentation which is slightly difficult to understand.

    Would it be an idea to reiterate the aforementioned non compliance with schedule 4 of the POFA act 2012 as well as the fact that I am not the driver?
    • beamerguy
    • By beamerguy 9th Aug 18, 12:01 PM
    • 8,107 Posts
    • 10,655 Thanks
    beamerguy
    • #5
    • 9th Aug 18, 12:01 PM
    • #5
    • 9th Aug 18, 12:01 PM
    Thank you for your response!

    The company have included pictures of the vehicle on the ANPR and have images of the signs around the car park most of which were dated 2013 and a few more recent which were dated 2018. They have also included lots of documentation which is slightly difficult to understand.

    Would it be an idea to reiterate the aforementioned non compliance with schedule 4 of the POFA act 2012 as well as the fact that I am not the driver?
    Originally posted by MariJane
    Also watch this ... Watchdog BBC .... PARKING EYE
    https://www.youtube.com/watch?v=WIaKMkO3YVM

    Note that with ANPR, it has been said by the CEO
    of the BPA that the system is NOT 100% reliable
    On the same programme, a POPLA appeal which
    was rejected was proven incorrect by Watchdog

    And that is a worry that POPLA employ assessors
    with little experience and knowledge
    RBS - MNBA - CAPITAL ONE - LLOYDS

    DISGUSTING BEHAVIOUR
    • Umkomaas
    • By Umkomaas 9th Aug 18, 12:29 PM
    • 18,891 Posts
    • 29,762 Thanks
    Umkomaas
    • #6
    • 9th Aug 18, 12:29 PM
    • #6
    • 9th Aug 18, 12:29 PM
    Would it be an idea to reiterate the aforementioned non compliance with schedule 4 of the POFA act 2012 as well as the fact that I am not the driver?
    If you've got space. As you've already made the point well in your appeal, concentrate on other rebuttal points .... but if there's still space ....
    We cannot provide you with a silver bullet to get you out of this. You have to be in for the long run, and need to involve yourself in research and work for you to get rid of this. It is not simple. We will help, but can't do it for you.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.
    • MariJane
    • By MariJane 10th Aug 18, 11:36 PM
    • 4 Posts
    • 0 Thanks
    MariJane
    • #7
    • 10th Aug 18, 11:36 PM
    • #7
    • 10th Aug 18, 11:36 PM
    I have viewed this video and will add this info to the final comment. I'm going with the unreliability of ANPR as well as any discrepancies found in the evidence they have provided to me.

    I just hope this is the final step before the appeal is made successful.
    • KeithP
    • By KeithP 10th Aug 18, 11:48 PM
    • 8,647 Posts
    • 8,570 Thanks
    KeithP
    • #8
    • 10th Aug 18, 11:48 PM
    • #8
    • 10th Aug 18, 11:48 PM
    Also point out to PoPLA anything in your appeal that PE have not challenged. Allege that as it remains unchallenged, then clearly PE agree with your assertion.
    .
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

3,814Posts Today

6,594Users online

Martin's Twitter
  • Ta ta... for now. This August, as I try and do every few yrs, I'm lucky enough to be taking a sabbatical. No work,? https://t.co/Xx4R3eLhFG

  • RT @lethalbrignull: @MartinSLewis I've been sitting here for a good while trying to decide my answer to this, feeling grateful for living i?

  • Early days but currently it's exactly 50 50 in liberality v democracy, with younger people more liberal, older more? https://t.co/YwJr4izuIj

  • Follow Martin