Free Traffic Legal Advice
Live cases legal advice => Private parking tickets => Topic started by: Honest John on May 06, 2024, 04:58:21 pm
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Certainly sounds like a win, good result!
Having a crack with the IAS can be worth it in very clear non-PoFA cases.
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It's a win... I think. You can never tell with the IAS. They are very incestuous with their members. It does sound as though the operator has "conceded" that they had no case.
I think that the reason they do not issue or rely on PoFA for their NtKs is because the location is not on relevant land. The National Park is land under statutory control.
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Just a quick update:
I appealed to the IAS and this was their response.
Your appeal to the Independent Appeals Service has now been conceded. The operator will no longer be pursuing the PCN detailed below.
Parking Charge Number (PCN): XXXXXX
Vehicle Registration: XXXXX
Issued By: %operator%
Your Sincerely,
The Independent Appeals Service
Thank you for all your help resolving this matter, it is very much appreciated. I never heard anything back from Park with Ease within the 5-day timescale, so I assume this maybe a default ruling?
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Again, i am appreciative of all your relies.
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The above is good, except for that last sentence: "They remain free to pursue me as driver, which their letter implies(quite improperly given that they quite literally don't know me from Adam)."
I would suggest that you change that to something along these lines:
They remain free to pursue me under the assumption that I was the driver as in their mendacious response to my initial appeal. However, we both know that would not stand up in court. Perhaps the assessor would like to refresh themselves with the details of VCS Limited v Ian Mark Edward (https://www.dropbox.com/scl/fi/yvxek3kfwtb3qent3lj6y/VCS-Limited-v-Ian-Mark-Edward-H0KF6C9C.pdf?rlkey=niecohfdtj1n1ysh5prbsp52p&st=675yffsv&dl=0) H0KF6C9C [2023] (https://www.dropbox.com/scl/fi/yvxek3kfwtb3qent3lj6y/VCS-Limited-v-Ian-Mark-Edward-H0KF6C9C.pdf?rlkey=niecohfdtj1n1ysh5prbsp52p&st=675yffsv&dl=0) and advise the operator to save themselves unnecessary expense should you fail to uphold this appeal.
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I'd be interested to know from DWMB2 of the wording of successful IAS appeal decisions on this point.
The cases would have been on Pepipoo unfortunately, although I can't imagine the wording would have been much different from POPLA appeals made on similar points. I just remember seeing quite a small handful that succeeded when we assumed otherwise (there were suggestions they were trying to be seen to be cleaning up their act in anticipation of the upcoming government regulation...)
They remain free to pursue me as driver
I'm not sure I'd say this, as the OP has made clear in his appeal that he was not the driver. There's a risk the parking company or the IAS would jump on this point.
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I wouldn't get drawn into this detail, IMO it's a distraction. Otherwise the comments regarding the nature of the beast are accurate.
But I think you should get this in front of the IAS. But remember, the assessor won't cancel the charge because its validity has nothing to do with Schedule 4 to PoFA which is concerned solely with whether a keeper or hirer could be held liable for the charge in lieu of the driver and not the charge itself. And you cannot offer a defence against the charge in this case because you weren't driving!
I'd be interested to know from DWMB2 of the wording of successful IAS appeal decisions on this point.
Dear Sir,
PCN **********
I am submitting this appeal as keeper of the vehicle concerned.
I was not the driver on the day and therefore have no comment regarding the validity of tne parking charge itself.
The only issue at large in this appeal is whether the creditor may rely upon Schedule 4 to the Protection of Freedoms Act 2012 and enforce this charge against the keeper should they fail to obtain payment of the charge from the driver.
Their letter dated **** rejecting my initial appeal contains the following statement:
We have not claimed to and are not seeking to use POFA 2012 to pursue the matter, therefore we have no requirement to issue any letters within 14 days.
I will not argue against this statement which means that the creditor may not enforce against the keeper and I ask the assessor to instruct the creditor on this point.
They remain free to pursue me as driver, which their letter implies(quite improperly given that they quite literally don't know me from Adam). However, I would welcome, but cannot require, a comment from the assessor regarding the creditor's implied threat given the evidence they hold about the driver's identity.
Some thoughts.
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I did however notice, at the beginning of their sentence they stated "You" when I have already told them I was not the driver, only the keeper.
I wouldn't worry about that. Just typical male-bovine excrement from an ex-clamper thug out to scam you. If you want to give them some grief, you could respond to them with a complaint that they have mendaciously responded to your appeal as though you were the driver when, in fact, you have admitted no such thing.
Anyone can drive any vehicle as long as they have the owners permission and they have their own third party liability insurance.
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I am not worried by their claims, I was more interested in the fact that they state they are not compliant with POFA 2012. I did however notice, at the beginning of their sentence they stated "You" when I have already told them I was not the driver, only the keeper. A very big assumption given I have the highest rate of personal independent payments, given I am unable to take unfamiliar journeys without support. Anybody could have been driving my car that day, given I do not use it often because of what I just stated. It is often borrowed by other people.
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I'm usually of a similar opinion to b789 regarding the IAS, but of the few appeals I have seen them accept, pretty much all of them have been ones like this where there is a very obvious lack of PoFA compliance. In this case enhanced further by the parking company directly stating they're not using it.
If it were me in receipt of the charge I'd give the IAS a go, as it costs nothing to try, and if successful brings an end to the matter without having to watch your incoming post for the next 6 years.
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Typical response from a scammer who is hoping you are low-hanging fruit on the gullible tree.
Personally, I wouldn't bother with an appeal to the IPC but others will disagree. You are dealing with an incestuous cabal and they are definitely not independent. You should realise that less than 4% of IAS appeals are upheld.
If you do appeal to them, you should highlight the fact that they cannot transfer liability from the driver to you the keeper, by their own admission, and so, in the absence of evidence that you were also the driver, the PCN should be cancelled. Good luck.
You can safely ignore their threat to use "images of the vehicle entering the site and should we need to we may choose to get the images enhanced in order to present them as evidence in court should you choose to allow the matter get that far." They are not the police and cannot forensically use the images captured on an ANPR to try and identify anyone. Even if they had a clear picture of the driver, they have no way of identifying you. There is no magical unicorn database with everyone's photo and personal detail they can access.
They simply have no way of identifying you as the driver unless you tell them it was you. If they were to try and use an ANPR picture to do so, they would be breaching your GDPR and a number of other laws. That sentence is simply put there to try and intimidate you into paying into their scam.
In the likely event that the IAS refuse your appeal, you just wait this out. They would be very foolish to try and actually take you to court as the keeper without any proof you were the driver.
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So, i appealed the parking charge, and this is what i got back from Park with Ease.
Appeal: Were you the keeper : Yes
Were you the driver : No
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"). You have chosen not to issue a Notice to Keeper in accordance with The Act, and it is now too late for you to do so. As there is no obligation for me to name the driver, 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.
Response
Thank you for your email
Upon entering the site you entered into a contract to pay for the parking that was due at the time or up to 48 hours following your departure (online) or pay a parking charge notice (reduced if paid within 14 days).
The signage on site clearly states that charges are in place 24 hours a day on all days and apply to all vehicles. There are 5 signs on this site, including 1 on the entry, 1 on the exit and one by the kiosk. Our signage has been audited by The IPC our Accredited Trade Association and is fully compliant.
We have invited you to inform us who the driver at the time was. We do have images of the vehicle entering the site and should we need to we may choose to get the images enhanced in order to present them as evidence in court should you choose to allow the matter get that far.
We have not claimed to and are not seeking to use POFA 2012 to pursue the matter, therefore we have no requirement to issue any letters within 14 days.
Since you failed to pay for the parking that was due at the time or up to 48 hours following your departure and were over the advertised grace period the parking charge notice has been issued correctly.
You can pay your parking charge notice online at www.parkwithease.co.uk or by sending a cheque or postal order to Park With Ease, Unit 15 Duttons Business Park, Dock Road, Northwich, Cheshire, CW9 5HJ.
The Independent Appeals Service (www.theIAS.org) provides an Alternative Dispute Resolution scheme for disputes of this type. As you have complied with our internal appeals procedure you may use, and we will engage with, the IAS Standard Appeals Service providing you lodge an appeal to them within 21 days of this rejection.
If you believe this decision is incorrect, you are entitled to appeal to the Independent Appeals Service (IAS). In order to appeal the IAS will need your parking charge number, your vehicle registration and the date the charge was originally issued.
Please note, the 14 day reduced period is not held whilst an appeal is in place.
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Fully understand your comments, and they make perfect sense. There has been no communication regarding the driver's identity, just a request to ask for enhanced pictures and signage.
Regards
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OP, why not make their failure clear?
I do not understand why reference to a PoFA failure is so vague. If you want to tempt them into calling your bluff i.e. you've picked up a phrase from somewhere and don't understand a word of it, then IMO this is the way to do it.
I notice that your PCN Notice to Keeper was issued on 25 April and that the alleged breach occurred on 7th. This period of 18 days exceeds the maximum period prescribed by law, 14 days, and therefore you are unable in any circumstances to hold the keeper liable for any parking charge for which the driver might be liable.
We have to take it on trust that your previous communications with the PPC have not given them any genuine reason to believe that you were the driver. If they do, then they might think their ruse has won the day i.e. send a PCN which isn't PoFA compliant and hope the keeper drags victory(for the creditor) from the jaws of defeat.
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Ok, I will replace with your draft, much appreciated.
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That will do… except, either leave out this bit:
In light of these circumstances, should you opt to decline this appeal, I urge you to direct your legal representatives to pursue any further action through the appropriate channels, including the initiation of a county court claim where a judge will adjudicate on the matter.
Or leave it as I worded it in my earlier response.
Your bit does not specifically tell them to leave out all the useless DRA action.
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Thank you everybody for your assistance on this matter and especially b789.
I have droughted this appeal, would you say this is suffice, taking into consideration the comments on this thread?
Dear [Parking Company],
I am writing in response to your Parking Charge Notice (Ref: [Insert Reference]) concerning vehicle registration mark [Vehicle Registration].
Upon reviewing your correspondence, it has come to my attention that you have not sought to hold me liable as the registered keeper, pursuant to Schedule 4 of the Protection of Freedoms Act 2012 ("The Act"). Furthermore, you have chosen not to issue a Notice to Keeper in accordance with The Act, and it is evident that the prescribed time frame for such issuance has lapsed.
In light of these circumstances, should you opt to decline this appeal, I urge you to direct your legal representatives to pursue any further action through the appropriate channels, including the initiation of a county court claim where a judge will adjudicate on the matter.
I wish to emphasize that there exists no legal obligation on my part to disclose the identity of the driver in question. Consequently, I regret to inform you that I am unable to provide any further assistance in this regard.
I anticipate your prompt confirmation that the charge in question has been duly cancelled.
Yours faithfully,
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In which case, just send the appeal as suggested earlier, with or without the reference to the IAS kangaroo court.
You and we need to see how they decide respond to it considering they don't know who was driving and they can't hold you, the keeper liable unless you want to pay it and admit to being the driver.
If they reject, then we need to see on what grounds. As to a secondary appeal to the IAS, that is up to you. Whilst others on here may believe that there is a remote chance that they'll actually side with the appellant, personally, I believe that with a roughly 4% chance of winning, it's not worth the effort.
Weathering the inevitable storm of debt collection threats is easy as long as you understand that they are just that, threats designed to get the victim to pay up. However, as long as you understand that these debt collectors offer their services on a no-win, no-fee basis and are powerless to actually do anything as they are a third party to the contract the driver is alleged to have breached.
I doubt that this tiddler company would try and litigate. I have not seen anything from them. They are unlikely to try and take this all the way to a hearing as they know they cannot hold the keeper liable.
They either cancel the charge or else try and scare you into paying. If you change address in the next 6 years, just make sure you instruct their DPO to rectify your address for service and to erase your old address.
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Schedule 4 of the Protection of Freedoms Act is the law, and the law is the same regardless of which trade body they are a member of.
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Please see attached back of letter.
I have only contacted them as the keeper for more information, nothing else has been disclosed.
I notice the date is out of the 14 days, but does this still stand if they are part of the International Parking Community, as their website does not state 14 days, unless i have missed something? I am not familiar with parking charge notices tbf.
Regards
[attachment deleted by admin]
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Whatever the back of the NtK says, Park With Ease cannot hold the keeper liable as the NtK fails PoFA 9(5).
As long as they don't know the identity of the driver, Park With Ease can never win this one. The keeper should not identify who was driving or else flush away the "golden ticket" opportunity.
So, OP, have you identified who was driving to Park With Ease? No "...I parked", only "...the driver". Not that you should be communicating with them anyway.
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OP, first things first.
Post the back of the PCN pl.
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Should you choose to decline this appeal, please skip the IAS kangaroo court
For a spell before it toppled over - we had seen a few cases on PePiPoo where the IAS were upholding appeals raised on 'slam dunk' points like a late notice (late attempt to clean up their image with the prospect of upcoming government intervention, perhaps). With that in mind, it might actually be worth a crack with the IAS - costs nothing, and shouldn't take too much effort, and if successful, provides closure without waiting in "will they sue me?" limbo.
HonestJohn, that's of course your choice to make, but if it were me in receipt of the charge, I'd be minded to give the IAS a rare go in this case...
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We need to see the front and back of the NtK. However, as the NtK has not been issued/served within the required timescale as mandated by PoFA, the keeper cannot be liable for the charge. Only the driver but you are under no legal obligation to identify the driver.
Initially, appeal using the following wording:
Dear Sirs,
I have received your Parking Charge Notice (Ref: ________) for vehicle registration mark ____ ___, in which you allege that the driver has incurred 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"). You have chosen not to issue a Notice to Keeper in accordance with The Act, and it is now too late for you to do so.
Should you choose to decline this appeal, please skip the IAS kangaroo court and any useless debt collector threats and tell your legal advisors to issue a county court claim where a judge will determine that you are unable to pursue me as the keeper of the vehicle.
As there is no obligation for me to name the driver, 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.
Yours faithfully,
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Thank you for your responses, they are very much appreciated. I Spoke with the YHA at this location tonight and explained the situation. I asked if there had been a change to the way they operate the car park.The guy on the end of the phone said, they now allow members of the public to park in their car park, not just YHA guests. He said even the guest have to pay to stay on the car park. I asked how long this has been in operation, and he said for around two years. I asked the location of their pay machine and he said that it was in front of their premises (not on the car park) next to the gate if you looked on GSM. I then asked if somebody did not know the area, was it possible to pay at the wrong machine and was there adequate signage to state which machine. He said there was plenty of signs. I reiterated my question about signage to the correct pay machine, seeing as there was two close together that could easily be mistaken as to which was which. He became shirty and said you will have to ask the company managing the site and then said he was not divulging any further.
I have asked "Park With Ease" for site images and information regarding the pay machine and signage to perhaps help identify the driver. I do not really want to drive around 120 miles to check it out for myself. I have now attached the NtK, and also an grab from GSM to show how close they are together (car parks) obviously it's an old image, so it shows cones blocking the entrance.
Regards
[attachment deleted by admin]
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From research, a National Park in England or Wales is under statutory control (National Parks and Access to the Countryside Act 1949 (https://www.legislation.gov.uk/ukpga/Geo6/12-13-14/97)). In which case, the car park on National Park land cannot be relevant land for the purposes of PoFA 3(1)© which means that, as long as the drivers identity is not revealed, they have no way of holding the keeper liable.
I'm open to being corrected on this and not having seen the NtK, cannot be 100% confident. However, until we know otherwise, the keeper must not reveal the identity of who was driving.
Was the PCN a Penalty Notice or a Parking Charge Notice?
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We'd really need to see the NtK and, if possible, some photos of the signage at the entrance and a general view of the car park. GSV only has photos from 2021 and the Park With Ease website does not even mention this car park. Only mentions one in Lancashire and 3 others in the Lake District.
This is a small operator and may not be litigious. As they are IPC members, appealing may not be worthwhile anyway. Have you tried Plan A yet and asked the YHA to cancel the ticket?
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The PPC is Park With Ease Ltd. I can't upload a picture of NtK currently. The Location was YHA Idwal Cottage in Snowdonia/Eryri NP. The YHA have two car parks right next to the one which is not theirs (Maes Parcio Dyffryn Ogwen).
Hope this helps
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Which PPC? Show us a redacted picture of the NtK leaving all dates visible, both sides.
You say the location is in a National Park. What is the location stated on the NtK? Some National Parks are covered by bylaws and so the car park may be under statutory control and therefore not relevant land for the purposes of PoFA which means that there is a possibility that liability cannot be transferred from the driver to the keeper who is the individual who is in receipt of the anti.
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This may have happened before, but as the registered keeper, I have received a letter from Park With Ease regarding an unpaid parking fee. From asking the driver at the time of this parking issue, they stated that they paid for parking at a car park in Snowdonia and displayed the ticket. I believe them given they took a picture of the car and you can see a white ticket on the dashboard. they only took an image to make sure no other cars damaged the vehicle as parking was tight.
On further investigation i checked google street maps and there are two car parks, that look a continuation of the first one, but it looks like it belongs to the YHA and one is a national park car park. Looks a very easy mistake to make if this is what happened. They may have paid but possibly for the wrong car park.
To my knowledge most rural YHA's do not charge for parking but ask for the registration number of guest staying. This Parking charge came from an ANPR camera, so i am not sure what to do in this instance with the letter.
Any help appreciated.