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  • FIRST POST
    • freddie212
    • By freddie212 6th Mar 18, 9:41 PM
    • 4Posts
    • 2Thanks
    freddie212
    Indigo railway "penalty notice" - appeal rejected
    • #1
    • 6th Mar 18, 9:41 PM
    Indigo railway "penalty notice" - appeal rejected 6th Mar 18 at 9:41 PM
    Hello experts! First time poster here, please be gentle. I have read everything that I can find that I think is relevant, e.g. the official MSE advice, the "best newbie thread ever" about Indigo, the FAQs, the Parking Tickets Board Sticky. So I'll restrict my questions to what I don't already know, to minimise my use of your time


    Firstly, I admit it, I apologise, I didn't know about this forum and didn't come here first, so I already admitted I'm the driver and gave my details. Am I doomed?


    I received a "penalty notice" on 9 Feb for failing to display a valid permit. Thing is, I have a valid annual permit at an exorbitant cost of 950. It was clearly displayed. Problem was it was upside down, it was a windy day and the new permits from this year are so tiny and lightweight (round paper discs, smaller than a tax disc) that I believe it flipped over as I was exiting the car or closing the door. I know that I put it on the dashboard the right way up. Normally I double check after closing the doors and setting the alarm, but on this case I didn't as I saw the train approaching and I needed to do the 150m sprint rather swiftly (for me, that is). The permit was a few inches away from where I usually place it. Since then, I have started keeping it in a plastic wallet to minimise the chance of this happening again.


    Being a newbie, I appealed almost immediately using the Indigo website, not the "template" found on here - mistake 1. Mistake 2, I ticked the box that says "I'm the driver", at least I didn't untick it. I gave my name and address. However in mitigation, they already know my name and address because it's a registered annual permit, and they have on their records my details and registration numbers of our 3 cars.


    The rejection was rejected, I received this yesterday. No POPLA code, as it's a railway car park and apparently some byelaws apply. Some thoughts:
    - I'm aware of Canterbury Council losing their case on "flipped tickets" - does that count as legal precedent, or is that different?
    - The parking regs as displayed call only for clear display of a valid permit. I had a valid permit, it was displayed clearly. Is it a defence that the regs do not specify that it must be the right way up?
    - Last year, the permits were large, square, laminated and heavier so harder to flip over in the wind. To me, it's Indigo's fault that it flipped over due to the change.
    - It would be easy to make the permit double sided. But they choose not to.
    - A flipped over ticket seems to be a "de minimis" breach of contract. I don't know if that's a valid defence.
    - For a railway car park, is the owner, driver or keeper liable? I'm not sure.. maybe it doesn't matter that I told them I'm the driver?


    Anyway the long and short of it is, should I now just pay up and move on with my life, should I ignore it, or should I take the MSE "Tough, but possible" advice and write to them telling them why I'm not paying? I have to say, I do not mind taking the risk of the charge increasing from 60 to 100 by missing the early payment deadline (in 13 days I think) because I am incensed by this - I have a damned expensive valid ticket.


    Thank you so much!!
    PS: edited to add, the reason for the new thread is that everything I've read is about not admitting to being the driver, and using the standard template to appeal to POPLA if it gets that far, but I'm not sure what to do if I've already been dumb enough to get those bits wrong and I cannot appeal to POPLA; most threads here date back to before the Jan 2018 change that eliminates the POPLA route.
    Last edited by freddie212; 06-03-2018 at 9:46 PM. Reason: edited to add reason for new thread
Page 1
    • twhitehousescat
    • By twhitehousescat 6th Mar 18, 9:57 PM
    • 1,264 Posts
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    twhitehousescat
    • #2
    • 6th Mar 18, 9:57 PM
    • #2
    • 6th Mar 18, 9:57 PM
    what have you read? there are about 4 more INDIGO cases on this first page that explain everything
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • waamo
    • By waamo 6th Mar 18, 9:58 PM
    • 3,183 Posts
    • 4,212 Thanks
    waamo
    • #3
    • 6th Mar 18, 9:58 PM
    • #3
    • 6th Mar 18, 9:58 PM
    Read this it explains it all http://forums.moneysavingexpert.com/showthread.php?t=5803499
    This space for hire.
    • twhitehousescat
    • By twhitehousescat 6th Mar 18, 10:00 PM
    • 1,264 Posts
    • 1,714 Thanks
    twhitehousescat
    • #4
    • 6th Mar 18, 10:00 PM
    • #4
    • 6th Mar 18, 10:00 PM
    and http://forums.moneysavingexpert.com/showthread.php?t=5805822
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • Coupon-mad
    • By Coupon-mad 6th Mar 18, 10:21 PM
    • 57,393 Posts
    • 70,997 Thanks
    Coupon-mad
    • #5
    • 6th Mar 18, 10:21 PM
    • #5
    • 6th Mar 18, 10:21 PM
    Am I doomed?
    No, Indigo are.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • freddie212
    • By freddie212 8th Mar 18, 10:08 PM
    • 4 Posts
    • 2 Thanks
    freddie212
    • #6
    • 8th Mar 18, 10:08 PM
    • #6
    • 8th Mar 18, 10:08 PM
    Waamo and twhitehouse's cat, yes, I read both of those threads (and others) and I was left confused over whether the differences in those cases to mine are relevant, or not. Maybe that's because I'm time poor and didn't read it properly, or I'm just paranoid, or just not getting it. Anyway, these were the sources of confusion:


    - in one of those threads, one of the main points is that 6 months has already expired; in my case it has not.
    - in both threads, one of the main pieces of advice seems to be, don't declare the driver; as financewarez said, "If you haven't told them who the Driver is, and it sounds like you haven't, you've basically won". Whereas I did declare that, in the online appeal.
    - some posts seem to imply that the driver is liable, "tell them to go contact the Driver" and others seem to say that the Owner is liable.
    - in other threads, where railway byelaw 14 is mentioned, there is advice that there's no offence of failing to display a ticket in byelaws. However I'm wondering if compliance with T&Cs displayed at the car park counts as an offence.


    Anyway trying to keep this short, am I right in saying that (based on some posts in those threads) under railway byelaws it's the Owner that's liable, not the Driver or Keeper? And that they have no way of finding out who the Owner is? And secondly, that Indigo cannot take anyone to magistrates court, only the TOC can, but the TOC doesn't know my details and that Indigo cannot pass them on?


    Something else that just occurred to me, can they clamp the car for non-payment of a penalty? The car is there every day.. that would be a bad outcome. As would going to magistrates. Worst of all would be a criminal record of course.


    Coupon-mad: thank you, the reassurance is welcome!


    thanks!
    • twhitehousescat
    • By twhitehousescat 8th Mar 18, 11:34 PM
    • 1,264 Posts
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    twhitehousescat
    • #7
    • 8th Mar 18, 11:34 PM
    • #7
    • 8th Mar 18, 11:34 PM
    a car can not be clamped , a car could be clamped for non payment of a FINE , (yes FINE) however they have to take you to court and for you to be found guilty , not going to happen

    therec was a case several yrs ago , NCP V mayhook http://www.davidmarq.com/bama/Mayhook-V-NCP%20Judgement%20transcript.pdf

    it all went wrong for them , high 6 figure sums lost , bankruptcy etc etc , how sad

    Mr Mayhook was awarded 87,000, broken down as follows;

    Solicitors costs 45000
    Barrister 12500
    After the event Insurance 24000
    Disbursements 4500
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • financerulez
    • By financerulez 8th Mar 18, 11:43 PM
    • 102 Posts
    • 185 Thanks
    financerulez
    • #8
    • 8th Mar 18, 11:43 PM
    • #8
    • 8th Mar 18, 11:43 PM
    Driver has liability. Don't reveal driver. Owner might have liability, it's untested and questionable law. Don't reveal Owner. Keeper has no liability. All they know is that you're the Keeper. Appeal as Keeper.

    Ah just read your initial message. The answer is yes, now they know you're the driver they theoretically would be within their rights to prosecute you for a byelaw breach. (Anyone can prosecute in Magistrates' Court if they want.)

    But it's unlikely that they will. There's a few reasons why it's unlikely:
    1. They would need to do it within 6 months.
    2. They would need to prove in Magistrates' Court beyond reasonable doubt that a byelaw breach has occurred.
    3. They would need to spend significant amounts of money on bringing this private prosecution, knowing that even if they win in Court they receive 0.00.
    4. They cannot pass the data to the TOC, and it's only the TOC who gain really from prosecutions in the sense that it may scare people into not breaking the byelaws. Only a couple of TOCs even bother when they have acquired the data themselves legally, which one is this for?

    Before you send any replies, it could be useful for us to see a redacted NtK. Some PPCs have started trying to bring contract law claims while quoting byelaw breaches - blending criminal and civil law. Will need to see this to understand whether they have any civil claim against driver, and advise on your course of action.

    I'll let someone else respond on the clamping - I don't know too much about that, but I'm fairly sure the answer will be that they cannot clamp, at least not until they had won in Magistrates' Court. The reason is, before the Court enforces/judges that a breach has occurred, it is only an alleged breach up until that point. Their allegation may be totally wrong and unfounded, and it would not be fair to clamp cars in this situation.

    Re criminal records - byelaw offences are not recordable offences, similar to speeding, you will not get a criminal record even if found guilty.
    • twhitehousescat
    • By twhitehousescat 8th Mar 18, 11:49 PM
    • 1,264 Posts
    • 1,714 Thanks
    twhitehousescat
    • #9
    • 8th Mar 18, 11:49 PM
    • #9
    • 8th Mar 18, 11:49 PM
    I would also add that if indigo did bring a magistrates case for bylaws , it would couse problems with the BPA british PARKING assoc , and would cause the DVLA to question the right to use kodoe


    "I'll let someone else respond on the clamping - I don't know too much about that, but I'm fairly sure the answer will be that they cannot clamp, at least not until they had won in Magistrates' Court. The reason is, before the Court enforces/judges that a breach has occurred, it is only an alleged breach up until that point. Their allegation may be totally wrong and unfounded, and it would not be fair to clamp cars in this situation."

    correct
    Time pretending I was asleep whilst under his desk , has given me insight to this sordid world
    • The Deep
    • By The Deep 9th Mar 18, 9:05 AM
    • 9,203 Posts
    • 8,968 Thanks
    The Deep
    This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

    Parking Eye, Smart and a smaller 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 nearly always lose) and have been reported to the regulatory authority by an M.P.

    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 HofC recently.

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

    and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.
    You never know how far you can go until you go too far.
    • waamo
    • By waamo 9th Mar 18, 11:30 AM
    • 3,183 Posts
    • 4,212 Thanks
    waamo
    Relax. They haven't taken anyone to court yet. I'm pretty sure they wouldn't know how even if they did have the power.

    This is magistrates court so can't be done online by them. Given they aren't lawyers do you think they would know how to lay an information at court?

    That's not even taking into account they likely don't even have the authority.
    This space for hire.
    • nosferatu1001
    • By nosferatu1001 9th Mar 18, 11:35 AM
    • 2,454 Posts
    • 3,004 Thanks
    nosferatu1001
    Clamping - again, INdigo would be nus to try it. Clamping was madce ILLEGAL in 2012 (POFA) and there is nothing in the byelaws enabling legisltion that allows clamping for an alleged breach. If they did clamp the vehicle it would be a call to the police, and to your solicitors for a 5 figure settlement for illegal detention
    • freddie212
    • By freddie212 15th Mar 18, 12:32 AM
    • 4 Posts
    • 2 Thanks
    freddie212
    Clamping is allowed under railway byelaw 14 section 4 part ii, apparently:
    Without prejudice to Byelaw 14(4)(i), any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be clamped, removed, and stored, by or under the direction of an Operator or authorised person.


    There are clamping signs around the car park. I gather that POFA doesn't apply here, if they're using byelaws rather than a breach of contract.


    Thanks everyone. I haven't yet received a NtK, just the PCN so far. Although I read somewhere that Indigo doesn't send NtKs anymore.


    Called Indigo to ask whether they are alleging a breach of contract or a breach of railway byelaws. Reply was "breach of contract under railway byelaws so both, really." Maybe he actually meant "breach of terms and conditions under railway byelaws"... hmm. I also pointed out that the PCN offers, on the back, an appeal with POPLA and they had failed to honour it. They just said that they don't offer this anymore. So why's it printed on the back of the ticket?? I feel a complaint to BPA coming on. And a complaint to the TOC. And a game of ping-pong?

    OR... should I not complain to the TOC because then they have my details?
    Last edited by freddie212; 15-03-2018 at 12:34 AM. Reason: to add an extra line
    • waamo
    • By waamo 15th Mar 18, 1:02 AM
    • 3,183 Posts
    • 4,212 Thanks
    waamo
    You have to have an SIA license to clamp and nobody has one of those.
    This space for hire.
    • financerulez
    • By financerulez 15th Mar 18, 6:30 AM
    • 102 Posts
    • 185 Thanks
    financerulez
    I wouldn't complain to TOC until after the 6 month point, just in case. They'll not do anything anyway, so no need to take the risk.

    Yeah we know what the byelaws say about clamping, that doesn't mean they're right though. As said above, there is no enabling legislation that allows it. Also note that it says clamping is allowed if a breach of the byelaws takes place. It doesn't say clamping is allowed for an ALLEGED breach of byelaws. To clamp, they would need to go through Mag Court and prove that a breach has occurred.

    Why the heck did you call Inidgo?! Before a NtK? You might still be able to argue this isn't evidence you were the driver, but you're not following the process advised. And we never advise calling!

    Send what Indigo told you to the DVLA please. DVLA have previously gotten angry about PPCs blending contract and civil law to confuse consumers. You can find David Dunford's email on here somewhere - please take the 2 minutes to actually send this DVLA complaint. Here it is: David.Dunford@dvla.gsi.gov.uk. Maybe also copy the email to their complaints department.

    I think your goal will be to time it out, and see what their correspondence brings up about pursuing the breach of contract. The fact they are still relying on byelaws for the breach of contract, means they would still need to turn the alleged breach into a proven breach, and at the end of the day that means they need to go to Magistrates' Court.
    Last edited by financerulez; 15-03-2018 at 6:33 AM.
    • Umkomaas
    • By Umkomaas 15th Mar 18, 7:29 AM
    • 17,571 Posts
    • 27,778 Thanks
    Umkomaas
    There are clamping signs around the car park. I gather that POFA doesn't apply here, if they're using byelaws rather than a breach of contract.
    Trespassers will be shot!
    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.
    • Handbags-at-dawn
    • By Handbags-at-dawn 15th Mar 18, 8:59 AM
    • 114 Posts
    • 242 Thanks
    Handbags-at-dawn
    Trespassers will be shot!
    Originally posted by Umkomaas
    Exactly!

    It's easy to forget, in the face of such official-looking signage and notices, that the criminal justice system in this country is designed to protect us all from unfair treatment. This means: i) everyone is presumed innocent until proved guilty by an independent tribunal (ie Magistrates Court or Crown Court); ii) the said tribunal will have no financial interest in the outcome (imagine if the Magistrates could pocket the fines they impose); iii) the punishment will fit the crime.

    Thus a motorist accused of parking in breach of the Railway Byelaws (which is a criminal offence) is presumed innocent, and cannot be punished, unless and until he is found guilty in the Magistrates Court. And any penalty he is ordered by the Court to pay goes into the State purse. Even the DfT have admitted (albeit reluctantly) that only the Magistrates can impose a penalty for breach of the Byelaws.

    So what do we have here? We've got private enterprises trying to impose their own home-made penalties, without trial, on the basis of an unproven allegation, with no opportunity whatsoever to appeal to an independent tribunal; pocketing the proceeds; and worst of all, threatening to clamp until their wholly unwarranted demands are met.

    This is third world stuff. It drives a coach and horses through our ancient laws - laws which were developed to protect our human rights and stretch back over eight centuries, from Magna Carta through the Bill of Rights Act to the modern-day European Convention on Human Rights; laws which would require earth-shattering legislation to repeal. A poxy little Byelaw can't do it.
    Last edited by Handbags-at-dawn; 15-03-2018 at 10:22 AM.
    • freddie212
    • By freddie212 15th Apr 18, 9:26 PM
    • 4 Posts
    • 2 Thanks
    freddie212
    Update.. I left it until I had something to report as I don't believe in bothering everyone with too many posts!

    I never did receive a NtK. I just received a ZZPS letter though demanding 170. Is the strategy now then to:
    1) Write letters.. but to Indigo or to ZZPS? And: dumb ones asking questions, or shirty ones saying I'm not paying due to penalties not being legal under contract law, and there being no debt until decided by a magistrate under railway byelaws?
    2) Do nothing.

    If it's (1), should I point out that of course I cannot actually remember who the driver was that day? It might have been me, it might not have. I remember it was me putting the permit in the window though. Their little information gathering *cough* I mean appeal form had the "I am the driver" ticked automatically and greyed out to look like it can't be unticked, *and* if you do untick it, it forces you to enter the driver's details, or the form cannot be submitted. So I'm minded to write to them to tell them that I left it ticked simply because I didn't think it mattered.

    Finally, here's the main deal. I took a photo of the T&Cs board at the entrance of the station, and under "Railway Byelaws: Terms of Use" regarding permits it says only "You must purchase a valid ticket or permit and/or purchase a valid cashless parking session covering the duration of the stay". Nowhere does it say that a permit or ticket must be displayed!! And of course, I had purchased a permit. Which they could have checked, if they had been bothered.

    thanks as always.
    • Redx
    • By Redx 15th Apr 18, 9:42 PM
    • 18,113 Posts
    • 22,902 Thanks
    Redx
    as post #4 of the NEWBIES FAQ tells you, IGNORE the debt collectors

    if INDIGO are writing then you reply, refuting it all same as in other INDIGO threads, especially read the thread by financerulez http://forums.moneysavingexpert.com/showthread.php?t=5789847 as welll, so you get the gist

    once 6 months has passed its too late for the TOC to enforce the bylaws in the Magistrates Court

    so always take umbrage with INDIGO and point out their errors and misconceptions by reading what others have already done and follow their lead
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
    • waamo
    • By waamo 15th Apr 18, 9:48 PM
    • 3,183 Posts
    • 4,212 Thanks
    waamo
    It's up to you what kind of letters you write. They aren't going to do anything other than threaten you and continue to demand money so feel free to take whatever approach you favour.
    This space for hire.
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