Group Nexus ANPR PCN - Westside Retail Park, Guiseley Leeds LS20 9NE ***Cancelled by Retail Park***

[lookinforinfo]

Apart from the PCN not arriving within the required time limits for the keeper to be liable for the driver's alleged breach, there are two more reasons that the PCN does not comply with PoFA. Both of them are in relation to the wording.

The first one is

that the PCN does not even suggest that the keeper is liable thus not following Schedule4 s9 [f].

The second fault is

that the PCN says that you have 28 days to pay the £100. 28 days from when?

The date of the PCN?

The date the PCN arrived at your property?

The date you read it when you returned from holiday?

Sloppy.

As they cannot pursue the keeper for the alleged debt and they should not assume that the keeper is the driver, strictly speaking they not be writing to the keeper.

It is important therefore not to let them know who was driving. 

The usual way of revealing the name is when the keeper writes to appeal for example and says I parked rather than the driver parked. 

[lookinforinfo]

To be fair to barrowboy there should be no reason for the OP to be pursued as the parking company through their own actions have ruled out the possibility of transferring the liability from the driver to the keeper. I did say that in post 7 above.

 

And it is not that the parking company can lie about their lack of keeper liability-it is very clear they have failed. So to take them on at POPLA will not affect any later actions that may occur in Court should POPLA fail. And if worded correctly with no drivers name mentioned POPLA may decide to cancel the PCN. Even should POPLA not cancel it, no harm has been done as the OP still has an excellent chance of winning by using the same argument in Court that they used with POPLA.

 

Moreover, it may well be that in Court there may be several other reasons that come to light that only strengthen OPs case. Should the OP be successful it will shorten the worry of the OP and if we can also  get  others to win where keeper liability has failed it should shorten the time that successful  members donate to CAG. Win win all round.

 

I would just add the proviso that appeals are monitored by the Site team to avoid any chance of driver identification.

 

[lookinforinfo]

Woodys Wonders we usually prefer not to appeal private PCNs fro several reasons.

 

The first

is that the appeal can inadvertently reveal that the keeper and the driver are the same person

 

The second

is that the parking companies will refuse to accept your appeal but may well alter their Witness statement either by slanting their argument to prove your argument is wrong. And if they can't do that, they just lie to prove they were right.

 

And while those are the principal reasons we don't think that revealing our best arguments in advance mean that we can hit them much harder with little chance of them rebutting should we get to the Witness Statement stage.

 

Appealing to the IAS is virtually a waste of time since they have no interest in allowing appeals. POPLA is different in so far as there is a better chance of winning but always with caveats as if the appeal is refused the motorist often appears to take that as final and may as well pay, when nothing could be further from the truth.

 

POPLA work from a narrower remit than the Courts so just because one loses on appeal, motorists can still go on and win in Court. For that reason we prefer not to appeal early as sometimes the parking companies don't take the matter any further  and if they do go to court we have a much better chance of winning in Court.

 

Worth bearing in mind too that if we didn't win in Court we also wouldn't have won with POPLA.

 

Edited November 20, 2021 by dx100uk
spacing

[lookinforinfo]

It's not quite so simple Barrowboy.  When no keeper liability is involved, MSE appear to use that as a starter and go into it in  a long winded way- they also seem to throw everything else in to the pot at the same time. Their appeals can last for a couple of hundred pages and putting parking companies to strict proof with certain items.

 

When faced with a mountain of paperwork that requires answers to satisfy POPLA plus providing strict proof on several things, smaller parking companies especially may just write off that PCN as not worth the time dealing with it.  Which is all well and good for the driver when it works even though we don't learn whether they just gave up or whether something in the appeal justified them not continuing.

 

The bigger problem is when POPLA doesn't accept the appeal. Then the parking company knows the motorists arguments and has time prior to issuing an LBC to rebut the motorists appeal since they know that just because POPLA rejected it, that does not mean the Courts will see the arguments in the same light. But when we wait until the LBC and the WS have been issued, we are in a far stronger place to hit them with everything we have got and gives them next to no time before they are in Court. 

 

Speaking for myself I would like to test the water as it were in such cases as Woodys where keeper liability has not been utilised. But it would be an appeal just based on that factor -no keeper liability so why are the parking company still pursuing the keeper when they cannot assume the driver and the keeper are the same person. If it succeeds then we could consider other motorists in the same boat but it has to be understood that the keeper has not already blown it by inadvertently giving away who the driver was. 

But that decision would have to be taken by the Site team.

 

 

 

[lookinforinfo]

If you do decide to appeal please post it up here prior to sending it.

 

They are pea brains at POPLA and do need everything spelled out for them.

There is a question over how unbiased they are.

[lookinforinfo]

I think you have to a bit more than that.

This an appeal by the keeper. 

 

As you already know the NTK is not compliant with PoFA. The PCN was allegedly issued on the 8th November 2021 for an apparent breach on the 29th October 2021.  The PCN was not received  until the 17th November calling in to question the issue date especially as the wording on the PCN failed to mention that the liability for the charge could be transferred to the keeper if the driver failed to pay.

 

Schedule 4 s9 [f] states that you must 

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

 

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

 

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

 

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

 

Your NTK does not warn me that you can transfer the liability from the driver to the keeper so fails to comply with the wording a PoFA compliant NTK .

 

You will be aware that for your NTK to be compliant it must follow the strictures in Schedule 4 s9 [2] "the notice must"

 

It follows therefore that I as keeper am not liable to pay the PCN nor can you assume that I am the driver and I have no intention of divulging the name of the driver in any case,

 

so I am asking that you  kindly cancel the PCN. Now that I have informed you of the situation any further pursuit of myself over this PCN  will be deemed as a breach of my GDPR which I understand may incur a charge in Court for you of £500 or so.

 

In the event that you do not accept my appeal, please forward a POPLA reference number to me so that I can appeal to them where I am confident that they will accept that you cannot pursue me as the keeper with a non compliant NTK and will cancel it.

 

Something along those lines would show them that you do know why their PCN is nor compliant so they should cancel.

 

  

Edited November 22, 2021 by dx100uk
added A few blank lines only..dx