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

[martynh99]

Success !
2 days before Excel had to pay the court fee for the scheduled court hearing, they filed a discontinuance with the court.
What now annoys me is that as Excel filed the discontinuance and the claim was not struck out, they do not have to pay my costs to date from the last 18 months (CPR 38.6.3)

Now i'm wondering and seeking guidance as to whether I can apply to have this discontinuance set aside and force Excel into court so as to allow me to claim costs, and whether the Judge is likely to see this as wasting his / her time. CPR 38.4 seems to say I can, although this has to be done within 28 days of the discontinuance being served on me (which to date Excel have failed to do, they served it to the court 3 weeks ago)

[des8]

IMO that's life and I would not bother pursuing your costs, which can only be minimal anyway

As this was allocated to the small claims track you could only recover your costs if you can show the claimant acted unreasonably (a very high bar).
Discontinuing is not considered "unreasonable".

[martynh99]

As this was allocated to the small claims track you could only recover your costs if you can show the claimant acted unreasonably (a very high bar).
Discontinuing is not considered "unreasonable".

Pursuing me for 18 months, constantly sending final demands, instructing solicitors, starting court proceedings and sending more letters saying that they're adding another £220 of solicitors costs to the claim - all when i've provided irrefutable evidence and than discontinuing is IMO unreasonable behaviour , but I will take your advice and let this lie, the costs i've incurred are minimal as you say, around £15.

One thing to add , I did call up Excel and managed to get hold of Jake Burgess (Head of Litigation @ Excel) - to say he is clueless is an understatement (my personal opinion). He claimed that it was ELMS legal who had discontinued the case, but I have a letter from Excel litigation stating that ELMS were no longer dealing with the case since Jul 2023. He argued regardless of that letter, ELMS were dealing and CPR allows them to still deal with it and I didn't know what I was talking about.

I called up ELMS and explained the situation to them, they instantly said they were dropped in Jul 2023 by Excel and it would have been Excel who filed the discontinuance. Angie from ELMS called me back later on and confirmed that it was definitely Jake @ Excel who had filed the discontinuance with the Court on 7th May.

[des8]

Thanks for that info.

Just more confirmation of how the private car parking companies are a lot of lying cheating money grabbers who have little contact with the truth or reasonableness

[martynh99]

Below is the full text of the totally biased towards Excel IAS appeal


My Appeal

You completed the appeal on 16/01/2023 17:20:22.

I am the registered keeper of the vehicle but I was not the driver of the vehicle on the day of the alleged contravention.
As such the liability cannot be transferred to me as the keeper and I am under no legal obligation to provide the drivers details to Excel and will not be doing so.

Operators Prima Facie Case

The operator made their Prima Facie Case on 20/01/2023 12:52:33.

The Operator Reported That...
The appellant was the driver.
The appellant was the keeper.
ANPR/CCTV was used.
The Notice to Keeper was sent on 19/12/2022.
A response was received from the Notice to Keeper.
The ticket was issued on 27/12/2022.
The charge is based in Contract.

The Operator Made The Following Comments...
1. The Providence Street car park is private land which motorists are allowed to enter to park their vehicle provided that they abide by any conditions of parking displayed.

2. The signage clearly states: ‘This is a Pay Car Park, ‘You must ensure the FULL & ACCURATE VEHICLE REGISTRATION MARK (VRM) of the vehicle on site is provided when making payment' and ‘Parking Charge Notices will be issued for the following…Failure to make payment within 5 minutes following entry to the car park/private land'. Signage makes it clear that anyone observed in contravention of the Terms and Conditions will become liable for a PCN.

3. There are 5 signs including 2 Entrance Boards at the entrance to the car park, and 2 Information Sign (660mm x 1220mm), 1 Tariff Board (1200mm x 1000mm) and 2 P&D ticket machines further in the car park. The signs are situated at key locations throughout the car park as site photographs supplied confirm.

4. Management of the Providence Street Car Park is conducted by ANPR cameras, which record vehicle registration numbers as vehicles enter and leave the car park. The VRM images are compared with tickets purchased at the P&D machines or via the Pay By Phone service and any vehicle that remains on the car park after 5 minutes and fails to purchase a valid P&D ticket or Pay By Phone session is issued a Parking Charge Notice.

5. In this case, citing the case of Elliott v Loake 1982, we are relying on the presumption, on the balance of probability, that the appellant, as registered keeper of the vehicle in question, was the driver of the vehicle on the date in question.

6. In the case of ELLIOTT v LOAKE in 1982 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 they were not the driver at the time of the incident. In this case such evidence has not been provided by the Appellant to establish that they were not the driver.

7. ANPR images supplied show that the appellant's vehicle entered the car park at 12:35:49 and left at 16:54:39 a period of 4 hours 18 minutes and 50 seconds.

8. A comprehensive search of our payment database, which records details of all P&D tickets and virtual parking sessions purchased at the Providence Street Car Park, shows that no ticket or virtual session was purchased that either matched or resembled the appellant's VRM ‘XX11XXX' from before the time that the vehicle entered the car park until beyond the expiry of the 5 minutes consideration period. The data also shows other motorists, successfully purchasing tickets and virtual sessions during this period.

9. It is the motorist's responsibility to ensure that they are familiar with the Terms and Conditions displayed on the signage in private land on which they park. We maintain that our signs are clearly visible and meet the requirements set by the International Parking Community guidelines. As established members of the International Parking Community, we adhere to their Code of Practice. This Code of Practice gives recommendations in regards to the signage within the car park. The signs within the car park fully comply with the recommendations outlined in the Code of Practice and are therefore deemed reasonable. Once the presence of the signs is revealed, it is the motorist's responsibility to ensure that they have read the signs and are familiar with the Terms and Conditions before leaving their vehicle parked in situ.

10. In their appeal the appellant states that they are the keeper of the vehicle and that the Charge Notice sent to them, was received outside the time scales set out in the Protection of Freedoms Act (PoFA) 2012. However, as was explained in correspondence, we have not cited PoFA 2012 nor stated that the appellant was liable for the Charge as the vehicle keeper. Operators are not required to use the keeper liability provisions within the Protection of Freedoms Act 2012 on land to which it applies. These provisions complement the common-law position which may be used to establish liability for a Charge irrespective of whether the Act applies or not. Where an operator chooses not to rely upon the Act, the stated time limits and notice requirements do not apply.

11. We would note that parking operators are entitled to up to six months from the date of a parking event in order to lawfully request keeper details from the DVLA for the purposes of lawfully issuing a charge, and subsequently up to six years to pursue the outstanding sum of this charge. We have adhered to this timescale.

12. Ultimately, when entering this private car park it was the sole responsibility of the appellant to fully comply with the clearly advertised contractual terms and conditions of parking, by their failure to do so the appellant rendered themselves liable for the PCN, which was lawfully issued.

13. The appellant became liable for a Parking Charge Notice as per the Terms and Conditions displayed, by failing to purchase a valid Pay and Display ticket or virtual parking session for the correct VRM for the vehicle parked onsite.

The appellant made their response on 24/01/2023 19:04:58.


The operator in their response to the IAS has reported(as fact) that the appellant was the driver. This is a presumption made by the operator and is categorically not true. They correctly state that the appellant was the (registered) keeper.
The operator states that the charge is based in contract. The operator should be aware that any contract entered into for parking is between the driver and the operator, the keeper is not by default nor presumption a party to that contract. The burden of proof lies with the operator and clearly they have no proof.
The operator is relying on the case of Elliott v Loake 1982 and presuming on the balance of probability that the appellant as registered keeper was the driver at the time of the alleged parking contravention. This is a flawed reliance for the following reasons :-
1) Elliott v Loake was a criminal case centred around a traffic collision, EPS20518130 is a civil claim under contract law.
2) The keeper of the vehicle claimed that the damage to their vehicle was as a result of a prior collision and not the one the subject of the case. The keeper of the vehicle was found to be in possession of the only set of keys to the vehicle.
3) Forensic evidence proved that the damage to the keepers vehicle was sustained in the traffic collision that was the centre of the case, not a prior collission.
4) As forensic evidence proved that the keeper had lied about the damage sustained to the vehicle, all of the keepers evidence was then, as is commonly the case in criminal cases, called into doubt and presumed to be untrue.
5) In the absence of any evidence being provided by the operator (Excel) in case EPS20518130, forensic or otherwise, to prove that their presumption that the keeper was the driver, there is no valid reason to pursue the keeper for the Penalty Charge.
6) As there is in criminal law, there is no provision in contract law to force the registered keeper to provide the operator with the drivers details. As such I will not be disclosing who the driver was on the 27th Jul 2022.
After checking my personal records, I can categorically state that I was not the driver of the vehicle on the 27th Jul 2022. I was in the Sheffield area on the day, working from home and in the afternoon between the entry and exit times of the alleged parking contravention I visited my conveyancing solicitors offices to deliver documentation and have my identification verified.
For the 2nd time in the operators submission, this time in Item 12, the operator appears to state as fact that the appellant(i.e. the keeper of the vehicle) entered the private car park. This is unreasonable behaviour.
I expect the IAS to uphold my appeal on the above facts and instruct Excel to cease pursiing this matter that has no merit.
Should the operator decide to take the matter to court, they will be put on strict proof and I will make the court aware that I will be claiming costs. In addition I will seek documentary evidence both from my employer and my conveyancing solicitors to support my account of my whereabouts on the day - if these incur costs those will also be submitted to the court as a claim against the operator.

The operator made their response on 30/01/2023 15:16:39.

1. In the case of ELLIOTT v LOAKE in 1982 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 they were not the driver at the time of the incident. In this case such evidence has not been provided by the Appellant to establish that they were not the driver.

2. We note that parking operators are entitled to up to six months from the date of a parking event in order to lawfully request keeper details from the DVLA for the purposes of lawfully issuing a charge, and subsequently up to six years to pursue the outstanding sum of this charge. We have adhered to this timescale.

The appellant made their response on 30/01/2023 15:34:34.

Note to the IAS - you have stated that 'The operator has provided the evidence above which he says proves that you are , on the face of it, responsible for the parking charge in question'
The operator has NOT PROVIDED ANY EVIDENCE, they have merely tried to imply that the Elliott v Loake 1982 criminal case is relevant in this civil case, As my submission detailed, in the case of Elliott v Loake 1982, it was proven using forensic evidence presented by the prosecution(claimant in a civil case) that the defendant had lied when they had stated they were not the driver.
If the Operator still maintains that Elliott v Loake 1982 is relevant case law and should be applied here, then the Operator needs to provide evidence to support their 'assumption' that I, as keeper of the vehicle, were the driver on the day in question.

I maintain that I was not the driver of the vehicle on the 27th Jul 2022 and as such I am not liable for this PCN.

The operator made their response on 31/01/2023 17:58:35.

1. In the case of ELLIOTT v LOAKE in 1982 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 they were not the driver at the time of the incident. In this case such evidence has not been provided by the Appellant to establish that they were not the driver.

2. We note that parking operators are entitled to up to six months from the date of a parking event in order to lawfully request keeper details from the DVLA for the purposes of lawfully issuing a charge, and subsequently up to six years to pursue the outstanding sum of this charge. We have adhered to this timescale.

The appellant made their response on 31/01/2023 20:51:59.

1. Elliott v Loake 1982 is a criminal case and criminal law applies. Excels case is a civil case so contract law applies.
2. In the case of Elliott v Loake 1982 , THE PROSECUTION PROVIDED FORENSIC EVIDENCE proving that the driver of the vehicle was indeed the keeper of the vehicle.
3. If Excel insist that Elliott v Loake 1982 is relevant case law then they will need to provide irrefutable evidence that I, as the registered keeper, was the driver on the day of the alleged parking contravention. This will not be possible as I was not the driver on the day.
4. Excels presumption that I was the driver of the vehicle on the day is merely an assumption.
5. A high proportion of vehicles driven on the UK roads on a daily basis are insured with more than just the registered keeper on the policy - that is because cars in a household are driven by more than just the registered keeper. It cannot be presumed that the registered keeper is the driver 100% of the time the vehicle is driven.
6. As previously advised, on the 27th Jul 2022 I was working from home, as I do for > 95% of my working days.
7. When I do go into an office, the office location is in the South Yorkshire region, not Wakefield Town Centre.
8. As previously advised, on the 27th Jul 2022, at the time of the alleged parking contravention I visited my conveyancing solicitors to deliver documentation and have my ID verified.
9. The Protection of Freedoms Act(PoFA) has provision for parking operators to obtain the driver details from the registered keeper as long as the Notice to keeper is sent within 14 days of any alleged parking contravention.
10. Excel have decided not to make use of the provisions of the PoFA that would have helped them in this case.
11. Excel instead have decided to rely on contract law to send out a Notice To Keeper some 140 days after the alleged parking contravention and seem to be under the impression that the registered keeper has two options. Either a) pay the PCN or b) discloses the drivers details.
12. The driver when entering the car park under an operators control, enters into a civil contract with the operator.
13.. This civil contract is explicitly between the driver and the operator, not the registered keeper.
14. Excel are pursuing a vexatious case against the registered keeper that is without merit. There is no requirement for the registered keeper to disclose the drivers details.
15. Should Excel continue to pursue the Registered Keeper for this PCN, they are put on notice that each and every communication sent (after the IAS appeal decision) by them, be that by letter or email sent directly from them or by any recovery agency appointed by them will attract a nominal £10 invoice. Any visit to the registered keepers home address by any appointed recovery agency will attract a £50 invoice for the distress / embarrassment caused. These invoices will be presented to any court hearing that results from this case and any monies awarded in respect of these invoices will be donated to charity.

The operator made their response on 06/02/2023 12:31:04.

The motorist has stated that they will charge us for their further submissions and engagement with the appeal. We would note that we are engaging with this appeal to honour our obligations arising from the IPC Code of Practice and have not entered into any kind of agreement with the motorist to pay them for their time freely chosen to be spent in appealing the charge.

The appellant made their response on 06/02/2023 16:17:32.

Excel need to get to grips with the definitions relevant to this appeal.
I am the registered keeper, not the driver, not the motorist.
I DID NOT state that I will charge Excel in relation to submissions / engagement in relation to this appeal.

What I did state was that I would charge them if they continue to pursue this vexatious and without merit case against me as the registered keeper once and only once the appeal stage is completed.

I ask Excel the following
1) when did you request registered keeper details from the DVLA
2) when did the DVLA provide that information
3) will you upload the request / response to this appeal as evidence.

The operator made their response on 10/02/2023 11:33:31.

The sole purpose of this PCN is to determine the lawfulness of the issue this PCN. If the appellant wishes to raise any other matters with us they may do separately. If the appellant wishes to make a Subject Access Request they may do by writing to dataprotection@excelparking.co.uk

The appellant made their response on 10/02/2023 12:25:29.

See attached google timeline confirming my earlier evidence stating that I was not in Wakefield on the 27th Jul 2022.
It also confirms that I did travel from my home address, to my conveyancing solicitors (Foys Drake House Crescent) and back again between 2:16pm and 2:45pm. This shows I was not the driver of the vehicle and cannot be pursued under the Operators misguided presumptions made earlier.
I am under no legal obligation to provide the drivers details as the operator did not refer to the PoFA in the notice to keeper that was sent 140 days after the alleged contravention and has explicitly stated they are not relying on the PoFA.
As such the operator should now cease to communicate with me as registered keeper as to do so would be vexatious and without merit.
As previously outlined, if the operator or any of it's appointed recovery agencies continue to pursue me as registered keeper once the IAS process has completed, I will raise an invoice in the sum of £10 per email / letter / call and £50 for an in person visit to my home address.

The operator made their response on 15/02/2023 15:13:24.

The appellant has supplied no independently corroborative evidence that demonstrates that they were not and could not have been the driver at the time of the contravention. Therefore we shall continue to hold the appellant liable for the charge under the reasonable assumption that they were the driver as per the case of Elliott v Loake.

The adjudicator made their decision on 25/02/2023 19:36:27.

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.

[martynh99]

After the IAS appeal, I received numerous letters from Excel and ELMS legal all threatening court and added costs. A claim was opened in the small claims court and the letters continued (Excel pursuing money and claiming to be trying to resolve before court) but that all stopped 1 month prior to the hearing when Excel filed a notice of discontinuance with the court just 2 days prior to the due date for Excel to pay the final court hearing fee.

[des8]

Thanks for that last post.

The really interesting bit is the adjudicator's lack of comprehension

". 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".

Elliot v Loake does no such thing, but the adjudicator ignores the evidentiary standard of civil law which puts the burden of proof on the claimant and continues:

"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 (really!)) or on an acceptance that they were driving at the material time"

But seen it all before!
Makes you wonder if IAS is truly independent of the parking companies
The IAS are independent of the parking companies, but are run in-house by the International Parking Community (IPC).
This raises IMO a potential conflict of interest as IPC are an Accredited Trade Association for the parking companies.