My only experience of these Penalty Notices are through those that are issued by either APCOA or SABA, both unregulated private parking companies, not authorities oin any way. In those cases, I believe that the PN issued is nothing of the sort. It is merely an “offered contract” (civil) that fraudulently uses unlawful language threatening criminal prosecution in an attempt to extort money from the recipients who are more likely to simply pay at the discounted rate out of ignorance.
For many years, these two private companies, with the cooperation and encouragement of the BPA and POPLA have issued hundreds of thousands of these fake PNs and I have never seen one prosecuted in the magistrates court. Many do go to POPLA for secondary appeal and as long as the recipient does not reveal the identity of the driver and quotes PoFA 3(1), POPLA will uphold the appeal. Not that they have any right to adjudicate on a PN issued as a criminal matter. However, in the vast majority of these cases, that will only happen when the appellant has received advice here or over on MSE forums.
Until now, the advice given to recipients of these fake PNs were told to string it out through the POPLA appeals process and they would “time out” after the 6 month statute of limitations. I do not believe this to be the case as the PN is not real and neither of the two unregulated private companies would dare try an actual prosecution in their own name as they are not authorities and the PNs do not state the name of the actual authority (TOC/TfL/Network Rail etc.) in whose name the PN has been issued or that they are authorised to issue them.
In several recent POPLA appeal cases, we put APCOA to strict proof that they had a valid contract with the relevant authority to issue PNs in APCOAs own name. As is usual with POPLA, they would accept a signed statement that a valid contract existed rather than require them to produce the actual contract. However, in a couple of cases, the contract was revealed and in both of those cases, APCOA had no authority to issue PNs, only PCNs under civil contract law.
I now advise anyone receiving these fake PNs from unregulated private parking companies to simply ignore all correspondence from them and the debt collectors. Neither APCOA nor SABA can prosecute an “offered contract” in the magistrates court nor in the civil court. It is simply a very profitable scam for them to make money from the gullible recipients of the fake PNs.
This is the first time I have dealt with an actual PN issued under railway Byelaws and has educated me to the prosecution process under the SJP. For this reason, this thread was moved from the Private Parking forum to here.
It has always been a bone of contention over on the private parking forums the use of the word “owner” in the Byelaws. As noted, there is no defined term for “owner” when dealing with these cases under civil contract law. In PoFA there is only the Keeper/Hirer or the Driver. The unregulated private parking companies abuse the civil process by arguing that as their notice is a PN issued under those railway Byelaws, they are allowed to sue the Keeper as the “Owner”. They can’t, because the PN is nothing of the sort except a fraudulent use of language that would never be allowed in a PCN which is nothing but an invoice issued under civil contract law. An “offered contract” cannot be sued over because there is no legal obligation on anyone to accept an “offered contract” in the first place.
I would hope that
@adamh02 would challenge this real PN because Merseyrail does seem to be abusing the process by threatening a criminal prosecution for an alleged minor parking contravention. Merseyrail and possibly a few other TOCs do abuse the Byelaws by using 24(1) which is very intimidating to recipients of a real PN, never mind fake ones from UPPCs.
Being the argumentative person that I am, I’m tempted to go to the location and get issued a PN by Merseyrail as I am local to the area, just so as I can go through the process and challenge it based on the arguments already discussed.
