Comments on Euro Car Parks evidence.
I note with interest that ECP have not engaged with any of my evidence or specific appeal points.
This appears to mean an automatic win for the appellant since the operator is required to rebut each appeal point under POPLA rules?
However, I note from other appeals on the internet that POPLA Assessors often break from protocol and ignore these specific rules.
I will therefore make the following comments based on what the operator has submitted.
Simply stating that, "our notice is compliant" does not make it compliant - it does not matter how many time the operator states this and continually stating this does not make this missing wording magically appear.
Furthermore, the operators failure to correctly engage in the rebuttal process is potentially detrimental to the appellant as the operator is expecting the POPLA Assessor to generate the individual rebuttal points on their behalf - this is not the Assessor's role in the formal process.
The operator has submitted a generic evidence pack rather than an evidence pack / response in keeping with my appeal.
This appears deliberate and I believe that they have taken this approach as they are unable to rebut non PoFA compliance appeal points using their own NtK because the NtK does not meet the requirements for either wording or format.
I will once again highlight the short comings of the operators NtK.
I would request that the POPLA Assessor keeps firmly to my appeal points in order to make sure all appeal points are addressed using the legislation.
PoFA Schedule 4 Paragraph 9(2)(b) specifies;
"The notice must inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full"
However, the operator's notice specifies;
"You are now advised under the paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012 that the driver of the motor vehicle is required to pay this parking charge in full."
You will immediately notice that the operator's sentence fails to meet the complete requirements of 9(2)(b) - whilst they specify that the driver is required to pay the parking charge, the sentence fails to state the second part of the requirement, namely; that the parking charges have not been paid in full.
In order to demonstrate integrity and transparency, if the POPLA Assessor believes that the notice does contain the sentence (the parking charges have not been paid in full) required by 9(2)(b), I would respectfully ask the Assessor to quote, verbatim, the sentence from the NtK which meets the two requirements of 9(2)(b).
The missing information is immediately fatal to the operators reliance on PoFA as total compliance is required.
Further,
PoFA Schedule 4 Paragraph 9(2)(e) specifies the following;
The notice must state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
Sub-paragraphs 9(2)(e)(i) and 9(2)(2)(ii) then set out both the wording and format for the two conditions of the invitation which 9(2)(e) requires.
The two conditions must be separated by the word 'or' - the word 'or' has a defined legal meaning in legislation so must be contained in the invitation.
The compliant sentence would therefore read as follows; (or something very close)
Your are notified under paragraph 9(2)(e) of schedule 4 of the Protection of Freedoms Act 2012 that the creditor does not know both the name of the driver and a current address for service for the driver - the keeper is therefore invited to (i)to pay the unpaid parking charges; or (ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver."
The required paragraph containing the statutory wording and two limbed invitation (separated by the word 'or') is not present on the operator's NtK.
Once again this immediately fatal to the operator's reliance on PoFA.
When examined, the operators NtK jumps directly from their (incorrect) version of 9(2)(b) straight onto the requirements of 9(2)(f) - the requirements of 9(2)(e) are totally over looked.
Once again, in order to demonstrate integrity and transparency, if the POPLA Assessor believes that the notice does contain the sentence which specifies both the mandatory wording and two limbed invitation then I would respectfully ask the Assessor to quote, verbatim, the sentence from the NtK which meets all the requirements of 9(2)(e) along with the two conditions of the keeper invitation specified in sub-paragraphs 9(2)(e)(i) and 9(2)(e)(ii).
This information is not present.
I am happy that paragraph 9(2)(f) is present and compliant but the presence of 9(2)(f) does not negate the requirements of 9(2)(b) and 9(2)(e).
