Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: Chaseman on December 21, 2023, 06:44:44 pm
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That's the problem with POPLA, you don't know whether you are going to get an experienced, legally trained assessor or if the tea-boy has been commandeered in that day to help with the case load.
The problem is in how each PPC decides to word their NtKs. If POPLA don't uphold an appeal, there is no adverse effect on the case. Let it go to court and have a judge decide whether the keeper is liable or not.
The issue is that if a PPC sends out an NtK that is not PoFA compliant but then decides to send out a new NtK that is compliant, it would have to have been sent so as to have arrived (deemed delivered) by day 14 after the alleged contravention. That doesn't give them much time and I have not seen any PPC actually do this in over three years of learning and dealing with these issues.
I have seen and I am dealing with an ongoing claim where the initial NtK actually says on it (Non-PoFA) yet the PPC (I Park Services) subsequently sent out a reminder claiming that the keeper was liable under PoFA. Go figure! ::)
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I had the opposite experience in the thread headed St Michaels Court. The first PCN specifically referred to POFA. I challenged on the basis of imprecise location and then got a second PCN that failed to address the matter of location at all but specifically said it was not being issued under POFA. At this point I said "well, if you are not making the claim against me - the RK - under POFA then address it to the driver, but I am under no obligation to name him/her".
When it went to POPLA the adjudicator dismissed the second PCN and the reference to it not being under POFA as a "typo" despite this being effectively repeated in two other places and relied entirely on the first one. The adjudicator did not, it seems, go back to the PPC to ask if the second letter did indeed contain a "typo".
So it seems as though both PPCs and POPLA can decide at will whether a non-POFA compliant PCN succeeding a POFA compliant one - or vice versa - prevails. Hence my original enquiry in the Purley Way case as to whether the first PCN or communication had to mention POFA in order for it to be invoked. As a read of St Michael's Court will show I was pretty familiar with POFA but did not know the answer to this last point. It seems from the correspondence between Nosy Parker and b789 that it is not entirely clear. However I got off Purley Way because the original PCN did not mention POFA, the PPC accepted that I could not be liable in the absence of a POFA compliant PCN, and they did not send a second one.
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I appreciate your point… However, if the first NtK specifically states that the operator is not relying on PoFA as indicated on the NtK here:
Can a subsequent, amended NtK that now relies on PoFA, take precedence as long as it arrives after the initial, non-PoFA NtK as long as it arrives within the relevant period?
I don't think the words 'non POFA' can be taken as a promise or representation not to invoke PoFA in a subsequent NTK if there is still time to deliver one within the relevant period. They are simply an acknowledgment that this particular NTK is not PoFA-compliant.
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I appreciate your point… However, if the first NtK specifically states that the operator is not relying on PoFA as indicated on the NtK here:
(https://i.imgur.com/8beeCz7.jpeg)
Can a subsequent, amended NtK that now relies on PoFA, take precedence as long as it arrives after the initial, non-PoFA NtK as long as it arrives within the relevant period?
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It's not an issue about precedence or invoicing. It's just about reading the words in POFA. If the PPC delivers a notice within the 'relevant period' and it says all the things required by POFA, it doesn't matter what other notices it sent previously or sends subsequently.
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@Nosey Parker, as a matter of interest, if a non-PoFA compliant NtK is sent within the relevant period but then a second, amended and PoFA compliant NtK is then sent out, again, within the relevant period, which NtK would take precedence, as far as any subsequent legal action against the defendant as keeper, is concerned.
Is the operator able to simply claim the the second NtK is an amended invoice?
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I certainly have read that but had not immediately appreciated that the PPC had to specifically refer to it in the first communication. Thank you for your advice.
Have another look at POFA which says nothing about the first communication. It just says what must be included in a ‘notice to keeper’ that must be delivered within the ‘relevant period’. If it says the right things and is delivered before the end of the relevant period, it doesn’t matter whether it is the first communication.
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Good result. Well done and thanks for the update!
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I certainly have read that but had not immediately appreciated that the PPC had to specifically refer to it in the first communication. Thank you for your advice.
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Excellent outcome.
Just in case the driver drops you in it again, please take the time to read POFA for yourself so you won't need to come here for advice on simple cases, freeing us all up to give advice on harder cases - https://www.legislation.gov.uk/ukpga/2012/9/schedule/4
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Appeal accepted and charge withdrawn. The e-mail came in just before I went on holiday (15 Jan) and I did not get around to posting at the time. Interesting that it is signed CP Plus and not Nexus. Thanks Nosy Parker for your template.
Dear Sir/Madam,
Thank you for your correspondence relating to your Parking Charge.
Further to your representations, we have investigated your claims and can confirm that your Charge has subsequently been cancelled in full and no further action will be taken.
Please disregard any letters received that predate this email.
Yours faithfully,
CP Plus Ltd.
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Ha ha, perhaps they got confused with a Corporal Punishment website ;D
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Is there much knowledge of Nexus on this site
They pop up fairly frequently on most of the forums - they used to trade as CP Plus. I think they started using the Group Nexus name a few years ago now.
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Fair point thanks. Fingers crossed for a better outcome than St Michael's Court assuming it goes to POPLA. Is there much knowledge of Nexus on this site - I have never heard of them? It seems that if I got their standard PCN to RK then all are invalid in POFA terms if the RK was not also the driver.
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They can take as long as they like as far as I am concerned!
If you haven't heard back within the 35 days mentioned then do chase it up. You don't want a rejection to go missing and miss your chance to go to POPLA.
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Appeal made in Nosy Parker's form. I was not the driver - spending 3.5 hours in Nando's yakking to a girlfriend not my thing. "The driver" knows my views on ignoring parking signage. Thanks Nosy Parker and DWMB for the assistance. I have learnt something new following St Michael's Court. There it seems the PPC got the original PCN right and then screwed it up later, which the assessor ignored. In this case it looks as though they have got it wrong ab initio viz "If you were not the driver then let us know their name and address and we will send them this Charge" sounds informal and matey and clearly does not reach the threshold required by POFA Schedule 4.
I have had an acknowledgment back. Apparently they are receiving "a high volume of correspondence" [wonder why?] but promise to get back to me within 35 days. In the meantime the charge will not increase. They can take as long as they like as far as I am concerned!
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Interested also in moderator's view.
For what it's worth, Nosy Parker is more legally qualified than I am! But at any rate, I agree entirely with his points above.
Their notice doesn't include the necessary content required for keeper liability under PoFA (compare your notice with what 9(2)(e) and 9(2)(f) state are required).
Usual caveat that you shouldn't lie and say you were not driving if you were (and you also shouldn't tell us here), but no compulsion to name the driver in any event. Nosy's appeal looks good to me, covers the relevant points thoroughly and concisely.
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Thanks Nosy that seems pretty definitive. I did not realise that the POFA reference had to be adduced in the first communication. I thought it went something like "we are sending you this letter as RK, if you were also the driver then we are asking you to pay up and if not please identify the driver". When I decline to do so they come back with "Well if you won't identify the driver we are pursuing you as the RK". Of course it was all different in St Michael's Court - they made the POFA reference first and when I said I was not the driver and declined to identify the driver they sent another PCN that was not apparently issued under POFA but the assessor ignored that and even when the PPC explicitly said in evidence to POPLA that it was not issued under POFA, the assessor decided it was a typo!
Anywhere, we are where we are with Nexus - if you believe the failure by Nexus to adduce POFA in the first communication, and my potential liability as the RK under it, is fatal to their case then I will bang in the appeal you suggest. Interested also in moderator's view.
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Reading your question, I think you might have misunderstood POFA. By not even attempting to engage POFA, Nexus has forfeited the right to make a legal claim against the keeper. This is not a marginal case like your wrongly decided St Michael's Court case. This is a clear cut POFA fail that even the dimmest POPLA assessor shouldn't be able to miss. And even if POPLA gets it wrong again, Nexus will have a very hard time trying to persuade an actual judge to find keeper liability.
On the basis that the keeper was not the driver, there is no reason I can think of why the keeper should pay. If I were the non-driving keeper I would certainly not write to Nexus asking for information or arguing the toss about signage. I would bang in a standard "POFA fail" appeal:
I appeal as keeper. I was not the driver. I am under no obligation to identify the driver and I decline to do so.
You are unable to transfer the driver's liability (if any) to the keeper as you failed to deliver a notice to keeper that complied with the conditions for keeper liability contained in Schedule 4 to the Protection of Freedoms Act 2012 ("POFA") and it is now too late to deliver a POFA-compliant notice to keeper. Specifically (and without limitation) your notice does not include the mandatory invitation required by POFA paragraph 9(2)(e) or the mandatory warning required by POFA paragraph 9(2)(f).
The keeper is also entitled to all defences available to the driver including (without limitation) inadequate signage and lack of landowner authority.
I require you to cancel the charge or issue a POPLA code so that POPLA can order you to cancel it.
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Oh dear, "the driver" has been at it again, failing to take note of parking restrictions. As per the PCN the car of which I am the RK was parked for 3.5 hours from about 18.30 to nearly 22.00 on 6 Dec. The PCN does not say what the free parking time allowed is and I cannot find it on GSV as that dates from 2018 when the PPC was different. "The driver" can't remember. I can't see much of a way out of this one but am minded to contact Nexus to ask them to specify the hours of control/free parking and provide pics of the parking notices. After all, I was not the driver and don't know. If I get a clear reply I think I will probably have to pay up.
Anything else to be done? Unlike St Michael's Court the address is pretty unambiguous. There is nothing on the PCN about POFA - Nexus just says "please either pay up or if you weren't the driver tell us who was and we will pursue them instead."