Euro Car Parks POPLA Appeal
I am the Registered Keeper of the vehicle in question and, since the driver is not known to the operator, I will be making my representations purely as keeper.
I understand that, under 'POPLA Rules', I must set out my appeal points and the parking operator must rebut them?
Non compliance with PoFA 2012.
The parking operators NtK fails to comply with PoFA and, as a result, liability cannot be passed from driver to keeper.
In particular, the NtK fails to satisfy the legal requirements of PoFA Schedule 4 Paragraph 9(2)(e), 9(2)(e)(i) and 9(2)(e)(ii).
This non compliance is immediately fatal to the operators reliance on PoFA.
Paragraph 9(2)(e), 9(2)(e)(i) and 9(2)(e)(ii) sets out 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—
(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;
So, in order to establish compliance, we must examine the operators NtK.
An examination of the legislation surrounding 9(2)(e) reveals that compliance is achieved by the setting out of the statutory wording immediately followed by a two limbed 'invitation to the keeper' to either 'pay the unpaid parking charges' or 'nominate another driver'.
So, to make this really easy, in the first instance, we are looking for the specific statutory wording set out in 9(2)(e) itself.
The legislation specifies that 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"
An examination of the operators NtK reveals that the statutory wording is not present.
This is immediately fatal to the operators reliance on PoFA.
However, to demonstrate my appeal point further, the NtK is then required to present a two limbed 'invitation to the keeper' which 'invites the keeper' to either 'pay the unpaid parking charges' or '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'
Please again note the exact wording of the statute;
That 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— blah blah blah
I have capitalised the word AND for good reason since the word AND demonstrates that compliance is only achieved if the operator is able to demonstrate that both legs of the AND logic have been satisfied.
Please note (and I apologise for sounding like a Junior School Teacher) that a 'warning to the keeper' is not 'an invitation to the keeper' - The words 'warn' and 'invite' have very different meanings and it is important that the correct wording is understood and applied when examining the NtK since other terms of the legislation require that 'a warning' be set out on the NtK - I understand that some POPLA assessors have become confused on this issue in the past and have inadvertently applied the reversed meanings - to be clear, a warning is not an invite.
So, back to the two limbed invitation to the keeper - when the NtK is examined the two limbed invitation is not present.
Nor is there an 'invitation to the keeper to pay the unpaid charges' - this is also the specific requirement of 9(2)(e)(i).
So, as I am sure you can see, there are multiple compliance issues on the operators NtK.
So,
APPEAL POINT ONE - That the operators NtK does not contain the legally required mandatory wording required by 9(2)(e), namely; "the creditor does not know both the name of the driver and a current address for service for the driver" - I therefore ask the operator to specifically rebut this appeal point by supplying a copy of the relevant NTK, to the POPLA Assessor, with an orange rectangle around the wording, "the creditor does not know both the name of the driver and a current address for service for the driver" - for total clarity, please do not include any other notations on the provided NtK - just the orange rectangle.
APPEAL POINT TWO - That, subsequent to the statutory wording required by 9(2)(e), the operators NtK does not set out the mandatory two legged invitation to the keeper to either pay the unpaid parking charges or nominate another driver - Once again, I ask the operator to specifically rebut this appeal point by supplying a copy of the NtK which clearly sets out, in an orange rectangle, the two legged legal invitation which the legislation requires in order to be compliant.
APPEAL POINT THREE - That, in accordance with 9(2)(e) and subsequently 9(2)(e)(i), the NtK must 'invite the keeper to pay the unpaid parking charges' - Once I again I ask the operator to prove that the NtK complies with this requirement - please demonstrate the 'invitation to the keeper to pay the unpaid charges' - Please do not confuse this 'invitation' with any 'warning to keeper' contained in the requirements of 9(2)(f).
If both the Parking Operator and the POPLA Assessor could use my numbered points then this would be very useful and should ensure that all appeal points are correctly addressed.
APPEAL POINT FOUR - That I believe that adequate time was purchased for the parking event which is causing this dispute - The Car Park in question is quite an awkward and large multistorey - the alleged overstay is 11 minutes and, when the minimum grace period is considered, the contractual dispute amounts to 1 minute - the operator's own evidence shows that the driver entered at 22.22 and left at 19.33 the following day - the 'time on site' was 21 hours and 11 minutes - 21 hours were paid for but 22 hours would have cost no more.
Many thanks and best wishes,
xxxxxxx xxxxxxxxxx
