Who can use the Protection Of Freedom Act? **Discontinued**

[sploits]

I don't mind a small charge for printing them for me (understandable). Or would they have them electronically that I could request via email? I've never asked for byelaws before so not sure (sorry if my question seems a little dumb).

[Old Snowy]

If they have them in electronic format so much the better.

[sploits]

Brilliant. A request will go in now

[lamma]

Aren't they an NDPB ? So FOI would apply. But it should not be needed, they should supply on demand else it is a secret law.

[sploits]

I've sent them an email so let's see what I get back. If I get nothing by Friday I'll go down and ask for a copy.

 

I also have no idea what NDPB stands for :-\

[Old Snowy]

Non-departmental Public Body. They are liable to application under the Freedom of Information Act. Byelaws, generally, should be displayed in the area they affect and should be available to the public.

[sploits]

Ah that makes sense now. Thanks Old snowy.

[sploits]

Hi,

 

Well so far I've got nowhere.

The DVLA are wanting money to divulge how Whitehaven Harbour Commissioners got our details (£5 which I don't mind paying but it's info that should be free!)

 

Just got back from the Whitehaven Harbour Commissioners office and they refused to give us a copy of the byelaws. They wanted to know who we were and what we wanted them for. They then said they needed to speak to the Chief Executive (Celia MacKenzie, hi if you're reading this by the way) and she would say if we could have them or not!

 

Well that's where I'm up to, I've read the PoFA numerous times and got my head around most of that so will love to fight them with it if they decide to do court. Also my letter to the Reply to Defence is more or less done (a few changes to what I posted earlier) so that will be getting fired out to the court and WHC next week.

 

I just can't believe they refused to give us a copy of the byelaws.

[Old Snowy]

Byelaws are a matter of public record they can't simply refuse to provide them. As I said they might reasonably charge you for printing off a copy of them but withholding them is way off. Don't bother messing about any further make a written application under FOIA asking for disclosure of the current byelaws. You do not have to justify the disclosure under any circumstances.

 

Edit: Having rethought this as the byelaws are relevant to the attempted use by the Commissioners of POFA why not incorporate a paragraph in your defence to the effect:

 

The Claimant by their actions asserts that they may use the provisions of Schedule 4 of the Protection of Freedoms Act 2012 to pursue the registered keeper of the vehicle concerned. I put them to strict proof to demonstrate that they are able to use these provisions specifically to produce a copy of their byelaws and to demonstrate that the car park is "relevant land" within the meaning of the Act.

 

That should give them far less wriggle room.

Edited November 23, 2013 by Old Snowy

[esmerobbo]

Me thinks they know they have dropped one, if they enforce under byelaws it goes to the magistrates they get nothing, so like a lot of the TOC's they use the threat of byelaws to try and pursue civil charges. I think issuing this claim will come back and bite them!

[sploits]

Morning all,

 

WHC contacted us yesterday afternoon but we couldn't speak (we had to go out). They are calling us back on Monday so I shall see what they say. If they are still not forthcoming then I shall request the information under the FOIA and if they still fail to provide us with the byelaws then I shall add your paragraph into my letter and also fire a complaint into the ICO.

 

I'll report back on Monday. Have a great weekend all

[topcat1802]

You should be able to see a record of the bye laws for WHC at the Cumbria Records Office, Whitehaven, if they cannot provide a copy for you!

[sploits]

Thanks topcat, I never knew that. I'll see what Monday brings and go down that road if needs be. Thanks

[sploits]

Good morning all,

 

The story so far. Whitehaven Harbour Commissioners have said that they won't give us the Byelaws as they as due to change in a few months!

I got in touch with the records office (Whitehaven) and they said they didn't hold them but I should be able to request them without problem from WHC under the FOIA.

 

I'm going to contact WHC again today requesting the Byelaws under the FOIA and see what they say today.

I've been round to the car park in question and one of the wall signs has had the word penalty removed. The other 2 signs still have penalty written all over them.

 

I've written to the court (and CC'ed WHC) with all the info and brilliant advice I've received from here. I've said they are non compliant with the PoFA and highlighted numerous times where they have quoted penalty. I shall follow it up with any findings I get with the byelaws (I wanted to get something in now as I'm getting nowhere with getting the byelaws at the minute).

 

Well that's where I'm up to people. Thank you all again for the brilliant advice and understanding you have given me. I'll post back once I find anything else out.

 

Have a great weekend

[esmerobbo]

If they are changing them shortly it matters not, the old ones are the ones that are relevant to this matter. Make sure you keep a record of all these obstacles they are presenting.

[sploits]

Everything I've requested via email (including the appeal that they ignored) is stored in a folder online for future reference

[lamma]

If they are changing them shortly it matters not, the old ones are the ones that are relevant to this matter. Make sure you keep a record of all these obstacles they are presenting.

yes indeed. why would they hide them ?

[Billy's mate]

I'm following this thread with interest. What a fantastic group this is. It's the best on the Internet. I've got a separate thread going with my issue, and I'm actually quite enjoying it !

[Old Snowy]

+1

 

One is tempted to conclude that the reason they are reluctant to hand over a copy of the byelaws is that they will blow their own case out of the water. That said although they are making it clear that they are pursuing this case by means of POFA and by implication pursuing the OP as the keeper they could yet switch tack and go after them, using the balance of probabilities, as the driver. Being as this is at a very local small claims court a judge may just allow them to do so.

 

Just to clarify the OP should put the Commissioners to strict proof that the car park is "relevant land" within the meaning of Sch.4 POFA and production of the byelaws is an intrinsic part of that proof (that means that they must prove that they did so - keep in mind that an unchallenged statement is deemed to stand).

 

Secondly, he should put them to strict proof that they have complied with the all of the requirements of POFA in respect of keeper liability (which they have patently failed to do) and finally put them to strict proof that they have followed the Practice Direction on Pre-Action Protocols and specifically in relation to the provision of a compliant letter before action - something that they have utterly failed to do.

 

If they are unable to hit the target in respect of any of these points then the OP should ask the court to dismiss the claim. None of these can be recovered after the event because POFA has set deadlines which have passed and the PD applies ahead of the institution of proceedings - not after them.

 

Just to be fore-armed, it would be well to prepare arguments that the charge they have attempted to levy does not represent a genuine pre-estimate of loss and that in any event the wording of their signs and the PCN itself makes it clear that the intention behind the enforcement is to deter non-compliance with their t's&c's which can only mean that their charge is a de facto penalty.

 

Thanks for the update.

[sploits]

Morning people,

 

I'm not sure how they are going to use the balance of probabilities as it was a Saturday and both of us were in the car. We are both insured to drive and both do drive the car. To me that balance is a 50/50 split haha.

Yes their paperwork is completely non compliant with the PoFA and I have all copies of the paper work sitting in a draw ready to hand a judge to back up that claim. The signage is still showing penalty and I may go and get more pictures today (you can never have too much ammo). They continue to withhold their Byelaws and their breakdown of charges. I personally can't see this getting as far as the court room (I think they will cancel the claim due to all of the above) and to be fair I would be quite gutted if it was cancelled. I'm looking forwardto arguing the case as I've spend quite a lot of time getting to grips with the PoFA and investigating flaws in their paperwork and procedures. I've also enjoyed this thread as the kindness and information from the CAG family is second to none.

[Tony P]

 

If they are unable to hit the target in respect of any of these points then the OP should ask the court to dismiss the claim.

 

And request the Judge to award the OP his costs, including travel to the WHA offices and the car park.

 

OP go take the photos of the errant signs, and record your mileage and time spent.

[sploits]

Morning all,

 

Just had some good news regarding Whitehaven Harbour Commissioners. A friend of mine was going through the same rigmarole as we are and he had his court date coming up next week (we've just recieved ours for February next year).

He opens his post this morning and received an early Christmas present from Celia at Whitehaven Harbour Commissioners

http://goo.gl/7xShnL

Why would they do this if they had the rights to claim all the money?? Oh yeah because they know its a con and are now backing down to the people who stand their ground!

 

EDIT

 

I have the Byelaws!!!

http://goo.gl/0oPSMj

For some reason I thought this was going to a bit more up to date. The following is the response I recieved via email:

 

As per your request, please find attached our byelaws currently held by the Secretary of State for Transport.

We are currently re-drafting our byelaws and will be seeking stakeholders' comments during 2014.

Yours sincerely

Whitehaven Harbour Commissioners

Edited December 2, 2013 by sploits

[sploits]

Well I've just got home and we've got the same 'Notice of discontinuance' through the post. We've beat them without going anywhere near a court room.

 

Thank you to everyone who helped us out over the past few weeks, it really has been appreciated

[ericsbrother]

Glad you get peace of mind over this but a shame that you hadnt hit them with a counterclaim as that would force them to pay your costs to discontinue.

You can go for embarrassing them in your local paper if you are minded to do so, with particular emphasis on their refusal to tell you what law you had broken before they put you through the mill. The local paper will love this if it is a bone of contention amongst the good folk of Whitehaven.

[sploits]

We are looking into going to the Whitehaven News regarding this (us and my friend who also received the notice of discontinuance).

Especially since this was published not long ago http://www.whitehavennews.co.uk/news/we-ll-pursue-unpaid-car-parking-fines-1.1093482