Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: Sunshineoncov on February 13, 2024, 03:48:33 pm
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Pl post their reply and what was actually submitted. Pl don't transpose, post copies.
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Any advice on my next steps? My appeal was rejected
Yes... Plan C, appeal to POPLA. The code you received lasts for 32 days, not 28 as they state. However, do not leave it too late. Show us what you intend to put in your POPLA appeal so that you can get some constructive criticism and corrections if necessary.
Remember that POPLA will only consider legal argument and BPA CoP breaches. Mitigation does not come into it.
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Any advice on my next steps? My appeal was rejected with the following:
Thank you for your appeal against the above Parking Charge Notice (PCN). We have carefully considered your appeal, however on this occasion the appeal has been rejected for the following reason;
Whilst we note the comments and reason for appeal, as per our photographic evidence, the vehicle was parked in contravention of the advertised terms and conditions. As the vehicle was not parked fully within a bay, we can confirm that this PCN has been issued correctly.
You have now reached the end of our internal appeals procedure and therefore you now have two options; you can either pay or appeal to POPLA - you cannot do both:
You can pay the total amount due as shown above via the following payment options;
Call us on: 01302 513232
Pay online: www.pcnpayments.com
Send a postal order: Premier Park Ltd, PO Box 624, Exeter, EX1 9JG
Or, you can appeal to an Independent Appeals Service, POPLA (Parking on Private Land Appeals) using the POPLA reference code provided above. Please note, should you decide to appeal to POPLA and your appeal is subsequently rejected or you withdraw your appeal, the option to pay a discounted amount will no longer be available and the full amount of the PCN will become due. Please note, if you pay the PCN prior to appealing to POPLA, your appeal will be withdrawn as you will have accepted liability in full.
If you decide to appeal to POPLA, you will need to visit their website, www.popla.co.uk where further details of how to appeal (either online or by downloading the relevant forms) can be found. If you are unable to access their website, please call us for further information on how to obtain the forms. Please ensure your POPLA Reference Number, as noted above, is quoted on all correspondence to POPLA. You have 28 days from the date of this email to submit an appeal to POPLA. If you appeal to POPLA we will suspend recovery activity on the PCN and the charge will not increase until the appeal has been determined.
By law we are also required to inform you that Ombudsman Services (www.ombudsman-services.org) provides an alternative dispute resolution service that would be competent to deal with your appeal. However, we have not chosen to participate in their alternative dispute resolution service. As such should you wish to appeal then you must do so to POPLA, as explained above.
If you do not make payment or submit an appeal to POPLA within the relevant timeframe, the outstanding PCN may be passed to our appointed debt collection agency for further action. All costs associated with this process will be added to the amount outstanding.
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Don't forget the intro and normal courtesies!
Dear Sir,
Re: PCN *******; VRM ********; Date of Issue ******
I refer to my initial appeal and your reply dated ***** in response to which I would reply as follows:
1. I have no knowledge or view as to whether the driver might be liable to the operator for a parking charge;
2. However, as keeper I am advising you that your Notice to Keeper does not comply with the mandatory requirements of PoFA and consequently you would not have a legal right to seek to hold the me, as keeper, liable for the parking charge (which is something you state in your PCN);
3. If you do not accept that they have not met the legal test to hold the keeper liable(i.e. compliance with Schedule for of PoFA) then on receipt of your rejection and IAS appeal code I would on appeal request the IAS to agree with me and to instruct you to cease any further action against me(which your PCN implies), in effect to injunct you against any further action against the keeper.
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My draft response to appeal
I thought the challenge was clear but for the avoidance of doubt:
1. I have no knowledge or view as to whether I might be liable to the operator for a parking charge;
2. However, as keeper i am advising premier parking that your Notice to Keeper does not comply with the mandatory requirements of PoFA and consequently they would not have a legal right to seek to hold the keeper liable for the parking charge.
3. If premier parking does not accept that they have not met the legal test to hold the keeper liable, then i would request the IAS to instruct them in this regard, in effect to injunct me against any further action against the keeper.
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Thank you for the response. The reply that is suggested starts with saying I was not the driver. Just to clarify, I am appealing on the behalf of the driver who is also the registered keeper. I wrote the appeal to PP signed in their name as they were just going to pay the charge.
I will appeal again in their name so I can’t state that I/he wasn’t the driver. The advice generally is to not reveal who the driver is I believe.
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Independent Adjudication/Arbitration (service) (IAS) as referred to in PoFA.
b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.
POPLA or whatever are simply inventions of ATAs.
The OP has already engaged with 'procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it' and look what's happened. The creditor's no idea what constitutes an 'appeal' as I wrote previously.
OP, I've given you a form of words for a reply to the creditor's response which you're free to use or not, amended or not.
This is an unregulated and, as far as the law is concerned, virtually unstructured procedure
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What has the IAS's procedures got to do with the keeper appealing a ticket to a BPA member?
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Exactly.
The rigid procedural steps of IAS are an invention of the industry, and sit outside PoFA whose only references are*:
and the arrangements for the resolution of disputes or complaints that are available
which is then expanded with:
the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.
Waffly doesn't get near describing these references IMO.
PoFA doesn't prescribe, it describes, and not very well either IMO.
*- repeated for a NTD and NTK where a NTD has been issued.
excessive exegetical sophistication, will not win the day IMO.
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Looking at this in the round, when does the keeper's "right" to appeal start and end?
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Sorry, my wrong spelling, a NTK is not an invoice to the keeper (because it doesn't demand payment from them and doesn't even state that a payment would be demanded, instead it says 'if A, B, C then we have the right to recover the unpaid charge from the keeper').
If and when they would seek to invoke such a right are unknowns.
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The NTK is not an invoice to the NTK.
What?
The Notice to Keeper's non-compliance arises as follows:
*****
*****
*****
Just my thoughts!
I agree that making clear the reason the notice doesn't comply is important in this case.
The template used for the initial appeal is one that I recommend in cases where the parking operator is choosing not to hold the keeper liable, but wouldn't have been one I'd have recommended here (alas, the appeal was sent by the OP without a draft being shared with us first). It was less appropriate in this case, because Premier Park are of the view that they have complied with PoFA, so any appeal claiming they have not should clearly set out why.
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IMO, they make a good point (but not one which is mainstream here!).
The NTK is not an invoice to the NTK. Nowhere does it say that the keeper IS being held liable and must pay. Instead a NTK does several things:
1. It notifies the keeper that in the creditor's opinion the driver is liable for a parking charge;
2. It notifies the keeper that the driver's details are not known;
3. It invites the keeper to pay;
3. It warns the keeper that the creditor reserves the right to hold the keeper liable ..at some stage in the future, BUT NOT NOW.
So, you telling them you weren't the driver isn't an 'appeal' as such, after all what were you appealing against e.g. how could you appeal the parking charge if you weren't the driver and why would you even want to etc. etc?
And as regards IAS, this is similarly nonsense because as keeper you aren't liable unless the creditor seeks to invoke the right they say they have and then again you would only challenge this in court, not to IAS. So, in effect all IAS is being asked to do is to 'injunct' the creditor i.e. to desist from any FUTURE attempt to hold the keeper liable, but they would be free to pursue the driver.
So, in response to their reply you could say:
Thank you for ********. You thought your challenge was clear but for the avoidance of doubt:
1. You were not the driver and have no knowledge or view as to whether they might be liable to the operator for a parking charge;
2. However, as keeper you are advising the operator that their Notice to Keeper does not comply with the mandatory requirements of PoFA(see below) and consequently they would not have a legal right to seek to hold the keeper liable for the parking charge. This is the substantive point of your appeal;
3. If the operator does not accept that they have not met the legal test to hold the keeper liable, then you would request the IAS to instruct them in this regard, in effect to injunct you against any further action against the keeper.
The Notice to Keeper's non-compliance arises as follows:
*****
*****
*****
Just my thoughts!
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I just received an email response from Premier Parking.
Any advice on how to respond?
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My response to them was
Dear Sirs,
I have received your Parking Charge Notice (Ref: ________) for vehicle registration mark ____ ___, in which you allege that the driver is liable to pay a parking charge. I note from your correspondence that you are not seeking to hold me liable as the registered keeper, under Schedule 4 of the Protection of Freedoms Act 2012 ("The Act").
There is no obligation for me to name the driver and I will not be doing so. I am therefore unable to help you further with this matter, and look forward to your confirmation that the charge has been cancelled. If you choose to decline this appeal, you must issue a POPLA code.
Yours,
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What exactly did you send as your appeal? Just "I am not at liberty to disclose who was driving"?
This site recommends not to reveal who was driving unless we advise otherwise, it does not recommend saying that and nothing else in an appeal.
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I said what is recommended on this site, that I’m not at liberty to disclose who the driver is.
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I have contested the charge with Premier Park as advised.
Saying what?
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The issue date is February 9th, the day after the photos were taken.
I have contested the charge with Premier Park as advised. I need to find out who owner of the land is. I think it’s Tesco. The driver visited Nando’s on the day and can prove this with the online receipt.
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I'm wary of us having too much more debate around this in a live case thread that currently hasn't even reached the "initial appeal to the operator" stage.
For now, the OP might be wise to focus on contacting the landowner, and drafting up an appeal here for critique.
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Well, we can nitpick over interpretation and meaning until the cows come home. Nowhere have I suggested that argument about precision in language versus the the requirements of the Act would be a valid, single point of defence.
Why wouldn’t it be worthwhile raising the issue as one of multiple defence points? By raising it, the judge can then consider whether it is a valid point of fact… or not.
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@andy_foster, spot on IMO.
The wording of the para. is:
1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
'Requirements are met', not state word for word.
We then get:
specify; inform; describe; specify; state; warn; inform; identify; specify.
IMO, any attempt to apply a requirement that every word must be included in a NTK is very, very wide of the mark and a registered keeper would be foolish to attempt to defend a claim on this basis alone.
Substantive and material omissions would be required IMO.
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Nowhere am I suggesting that a defence should be based solely on those one or two points. They are arguments that can be used to towards the bigger picture that the operator is abusing the process by not strictly adhering to the requirements of statute.
We already know that the template defence used from the MSE forums covers many more points of law. The argument I have posed about the validity of the NtK to hold the keeper liable for the alleged debt points out some facts that the judge would have to consider on top of all the other arguments.
PoFA has been around for 12 years and many operators, including this one, still can't get the wording right. There are too many instances of operators using wording that is not strictly as prescribed in PoFA but mention PoFA but relying on it to hold the keeper liable and there are also plenty of operators who use wording exactly as prescribed but don't actually mention PoFA.
Is the suggestion that the operators can have it both ways? Can an operator rely on PoFA if they don't include the precise wording, only an approximation of it?
In the English language, "warned that", "said that", etc. are indicative of indirect quotes. I would be wary of relying on it being interpreted as prescribed wording unless there is case law in which the law has defined the words accordingly.
Without having access to a database of case law, I will not know unless someone else can provide it. However, there is always the possibility that at some point, there will be an appeal based on the points.
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In the English language, "warned that", "said that", etc. are indicative of indirect quotes. I would be wary of relying on it being interpreted as prescribed wording unless there is case law in which the law has defined the words accordingly.
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It would be a far braver sole than I who went to court on such an argument alone.
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After discussion with a very long serving district judge about the issue of "technical flaws" in a NtK regarding PoFA compliance, it was agreed that any flaws, including the one I will describe below, would be considered and decided on whether it was factually correct if raised in a defence.
In the case of the NtK in this case, the wording "You are advised that if, after the period of 28 days..." does not strictly comply with the wording required by the Act. Paragraph 9(2) states that the NtK MUST and 9(2)(f) WARN the keeper...
When something is required by law, it means there are consequences for failing to do it. If the operator is legally obligated by the Act to warn someone about potential risks, and the operator doesn't, there could be legal repercussions such as, in this case, a lawsuit. On the other hand, when something is advised, it is only a suggestion or recommendation without the same level of legal backing.
So in a legal context, there is a significant difference between advice and a warning. A legal requirement to "warn" someone carries a much stronger obligation and consequence compared to when it is merely "advised."
Additionally, in this NtK, there is a failure to adhere to PoFA 9(2)(e) which MUST state that if the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor...
There is no invitation as per 9(2)(e)(i).
There are plenty of PPCs that do strictly adhere to the wording requirements of the Act. It is not beyond the remit of this operator to adhere strictly to the requirements of the Act when they could easily have chosen to.
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You should challenge first then try Plan B.
Why?
Because the sooner you submit a challenge the sooner the charge is put on hold at the prevailing rate i.e. £60 up to issue date + 14.
Let them take their sweet time over answering because while they're considering - at no cost to you - you try Plan B. Whereas if you try Plan B and go past issue date +14 then you're in for £100.
And when is 'issue date' you've blanked it out!
@b789, Could I ask that these flaws referred to be posted for peer review pl:
At this point, whilst the NtK attempts to hold the keeper liable by using some wording from PoFA 2012, it has technical flaws and can be argued later, that it is not fully PoFA compliant with the strict requirements of the Act. This would mean that only the driver can be liable and they have no idea who the driver is.
I can't find any substantive defects which would prevent the creditor from relying upon keeper liability in ADR or court, but maybe I've missed a key point.
OP, let's look at the photo objectively pl.
There is clear encroachment into the bay on the right.
The van hasn't even taken up the full allotted space to its left.
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Have you initiated Plan A? Plan A is to make complaint to the landowner or whichever managing agent contracted Premier Park and ask them to get them to cancel it.
At this point, whilst the NtK attempts to hold the keeper liable by using some wording from PoFA 2012, it has technical flaws and can be argued later, that it is not fully PoFA compliant with the strict requirements of the Act. This would mean that only the driver can be liable and they have no idea who the driver is.
Do not identify the driver. You are under no legal obligation to do so. You respond to anything solely as the keeper.
Plan B will be an appeal to PP where you can argue several points and any mitigation you want to rely on. Should Plan B fail, you will then receive a POPLA code for your Plan C appeal. A POPLA appeal will not consider mitigation. It will only consider BPA CoP and legal matters.
If Plan C fails, not to worry as any POPLA decision is not binding on the appellant. You would then enter a limbo period where you would receive reminders and debt collector letters which can be ignored. Up to 6 years after the date of the parking event, PP can initiate a county court claim which is when Plan D kicks in. PP may or may never progress to this stage. However, if they they ever do, it would then be up to a judge to decide whether you owe them any debt.
You must understand that what you have received is a speculative invoice from an unregulated private parking company for an alleged breach of contract. The majority of victims of these 30,000+ issued daily invoices just pay up. Many try Plan B and Plan C but then capitulate due to their incorrectly held understanding of civil law. Threats of CCJs and bailiffs are often enough for the PPCs to harvest the low-hanging fruit of the gullible tree.
Those that do feel aggrieved enough and believe that their PCN was issued unfairly that go on to fight them with the advice they receive here, are much more likely to get them overturned at one of the Plan stages.
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The driver parked over the line as the vehicle is big and there was a bay out of use due to a temp barrier next to it. The registered keeper received a charge in the post.
Looking for advice on how to respond please.
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