Excel PCN 5 months after alleged contravention

[martynh99]

As the registered keeper, I received a PCN for an alleged contravention in Jul 2022 but the PCN was dated mid Dec 2022.
I appealed to Excel simply on the basis of PoFA and it been > 14 days when the NTK was sent. They rejected the appeal citing that they had not mentioned PoFA in the PCN which is fair enough, they hadn't.

My question now is do I appeal to the IAS (as Excel won't entertain any more comms) and advise them that Excel had not cited PoFA and claim they can have 6 months to issue NTK, but there is no obligation on me to name the driver and (politely of course) tell them where to place their PCN or just wait and see if they try the court route and take them on there ?

[des8]

So why not appeal to IAS on the basis you are registered keeper and liability cannot be transferred to you under PoFA .
Repeat that Excel do not know the identity of the driver and you are under no obligation to identifying the driver and will not be doing so.

And keep going all the way to court if necessary as it will cost Excel if you claim costs following their unreasonable behaviour in pursuing a claim that had no merit.

[martynh99]

This was the main part of their rejection of the appeal.
So they seem to be relying on, by having not cited PoFA that they are exempt from complying with it but ( i think) importantly they are saying they are not holding me liable as the vehicle keeper but will continue to pursue me on their (incorrect) assumption that I was the driver.


<snip from the appeal decision>
In your appeal you have stated you were not the driver when your vehicle was seen to be parked in the car park,
however have not provided the driver's details. You also state that our Notice is not compliant with the Protection Of
Freedoms Act (POFA) 2012 on the Notice issued to you; however we have not cited POFA 2012 nor stated that you
are liable for the Charge as the vehicle keeper.

It is important we highlight that we will continue to pursue this matter on the reasonable assumption that you were the
driver of the vehicle on the date in question until information/evidence to the contrary is provided.
Regarding your comments concerning the time taken to issue the Notice to you, we must advise that parking
operators can legitimately request keeper details for the purpose of pursuing a parking contravention provided that
this request is made less than 6 months from the date of the offence. We can confirm we have adhered to this
timescale in these circumstances.
We have fully reviewed this case and we are satisfied that the Charge Notice was correctly issued. We are unable to
accept the mitigating circumstances raised in your representations, your appeal is therefore rejected and the charge
will stand;

<end of snip>

[des8]

So their reasonable presumption is a load of bovine excrement and has no traction.

You could ignore them completely, or write and repeat that you are the registered keeper, but under no obligation to name the driver.
If they initiate court action against you as the "presumed driver" you will put them to strict proof.
You will also bring this letter to the courts attention when you claim your costs on the basis of their unreasonable behaviour pursuing a claim which they know has no merit.

Tell them you do not expect to hear from them again except to confirm they are deleting your data from thei recordws

[martynh99]

I sent off the appeal to the IAS, Excel have now responded with a load of rubbish, assumptions and incorrectly stating things as fact when where is no evidence to support these.
They have also tried using Elliott v Loake

Have sent my response back to the IAS case pointing out where they are incorrect and that they need to stop pursuing me as the keeper of the vehicle.
Not disclosing the text of the response or theirs for now for very good reason, once the matter is closed i'll post all documentation on here.
Thanks for the pointers so far Des8

[des8]

Don't expect IAS to find in your favour .... they rarely do!

[martynh99]

As expected, the IAS found in Excel favour, despite me having provided some proof I wasn't the driver. What really gets my back up is they make so much of Elliot v Loake as a basis, which of course is a criminal case hence the burden of proof is on the prosecutor as the defendant is innocent until proven guilty yet here we have a legally qualified adjudicator spouting that the burden of proof is on me as Appellant / RK to prove my innocence !

------------------------------------------------------------------------

The Appellant should understand that the Adjudicator is not in a position to give legal advice to either of the parties but they are entitled to seek their own independent legal advice. The Adjudicator's role is to consider whether or not the parking charge has a basis in law and was properly issued in the circumstances of each individual case. In all Appeals the Adjudicator is bound by the relevant law applicable at the time and is only able to consider legal challenges and not factual mistakes nor extenuating or mitigating circumstances. Throughout this appeal the Operator has had the opportunity consider all points raised and could have conceded the appeal at any stage. The Adjudicator who deals with this Appeal is legally qualified and each case is dealt with according to their understanding of the law as it applies and the legal principles involved. A decision by an Adjudicator is not legally binding on an Appellant who is entitled to seek their own legal advice if they so wish.

The Appellant accepts that he was the keeper of this vehicle but denies that at the time of the incident he was the driver. The Operator is correct to cite, the case of ELLIOTT v LOAKE from 1982,in which the principle was established that in the absence of sufficient evidence to the contrary the keeper of a vehicle is assumed to be the driver of that vehicle at the time of an incident such as arises in this Appeal. The burden of proof is then on the keeper of the vehicle to prove on the balance of probabilities that he/she was not the driver at the time of the incident. In this case such evidence has not been provided by the Appellant to establish that he was not the driver and therefore the Operator is entitled to pursue the Appellant as the registered keeper.

I am satisfied that the Appellant was parked in an area where the Operator has authority to issue Parking Charge Notices and to take the necessary steps to enforce them.

A number of images, including a site map have been provided to me by the Operator which shows the signage displayed on this site. After viewing those images I am satisfied that the signage is sufficient to have brought to the attention of the Appellant the terms and conditions that apply to parking on this site.

The terms and conditions of parking at this location are such that drivers must pay for their parking session. In the data provided to me it is clear that no payment was made for the Appellant's VRN. It is the driver's responsibility to ensure that a valid payment was made for the parking session and that they otherwise conform with the terms and conditions of the Operator's signage displayed at this site. On the basis of the evidence provided I am satisfied that the Appellant breached the displayed terms and conditions by failing to pay for their parking session and as such that the PCN was correctly issued on this occasion.

The Appellant raises as an issue the Protection of Freedoms Act 2012 and purports that the Operator has failed to comply with the requirements therein. I must point out that whilst the Act does need to be complied with in cases where the Operator wishes to avail themselves of the keeper liability provisions under Schedule 4, they are not obliged to do so where they do not. As stated above, the operator is entitled to rely either on the legal presumption that the keeper of the vehicle was also the driver (which they are entitled to do in the absence of credible evidence to the contrary) or on an acceptance that they were driving at the material time. Therefore, on the present facts, the compliance or otherwise with the Act, is not a relevant issue.

I have considered all the issues raised by both parties in this Appeal and I am satisfied that the Operator has established that the Parking Charge Notice was properly issued in accordance with the law and therefore this Appeal is dismissed.

[des8]

So whilst awaiting a court claim you might like to read this thread on Pepipoo: http://forums.pepipoo.com/index.php?showtopic=110301