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#Post#: 34299--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: August 23, 2024, 6:14 am
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--- Quote ---
> If using that point, all you have to do is draw the judge to
that point.
--- End Quote ---
Indeed. My point around it being a brave man who relies solely
on that point was that, from the court cases I've been involved
in, different judges can have fairly different interpretations
of PoFA compliance (whether they should have such varying
interpretations is another matter, but pragmatically, they do).
OP, it's your money, so it essentially comes down to your
appetite for risk (and of course your financial situation).
#Post#: 34304--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: August 23, 2024, 6:28 am
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If you present your point to a judge, there is nothing to
interpret. This is the way to present the 9(2)(e)(i) point to
the judge:
--- Quote ---
> PoFA 9(2)(e)(i) failures
>
> Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012
>
> This paragraph mandates that for a parking operator to hold
the vehicle's registered keeper liable for a parking charge, the
Notice to Keeper (NtK) must include:
>
> An "Invitation to Pay": The notice must explicitly invite the
keeper to pay the unpaid parking charges.
>
> Exact Wording: The wording must clearly convey this invitation
and mere implication or indirect suggestions are insufficient.
The act requires strict compliance, meaning that any failure to
fully incorporate this invitation renders the notice
non-compliant with the requirements of PoFA 2012.
>
> Non-Compliance Issue
>
> If the NtK fails to include a clear "invitation to pay", or
any synonym of the word "invitation", this omission is a breach
of Schedule 4, Paragraph 9(2)(e)(i). Even if the notice suggests
that payment is required, without an explicit invitation
directed towards the keeper to settle the charge, the notice
does not meet the exacting requirements of PoFA 2012.
>
> Significance of Full Compliance
>
> Strict Liability: The law mandates full and exact compliance
with the specified wording and content outlined in PoFA 2012.
>
> Partial or even Substantial Compliance Insufficient: Even if
the notice largely complies with other requirements, the absence
of a clear invitation to the keeper to pay is a significant
flaw. The operator cannot rely on partial or even substantial
compliance — every element as specified in the legislation must
be present and correct.
>
> Consequences for the Operator
>
> Challenge Basis: If the notice is found to lack this crucial
element, it can be used as a basis to challenge the parking
charge.
>
> Keeper Liability: The operator cannot transfer liability to
the keeper, which significantly weaken their case if the notice
to the driver or other requirements are also flawed or if the
driver is unknown.
>
> Conclusion
>
> In summary, a PCN that does not include an explicit
"invitation" for the keeper to pay the charge is not fully
compliant with Schedule 4, Paragraph 9(2)(e)(i) of PoFA 2012.
Since the law demands strict adherence, any omission, even if
minor, invalidates the notice and relieves the keeper of any
obligation to pay. This should be raised in any appeal or legal
response to the charge.
--- End Quote ---
#Post#: 34307--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: August 23, 2024, 6:45 am
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And yet they do interpret. I've sat in plenty of cases where
they come to adverse conclusions on PoFA, some that on the face
of it were far more clear cut than this one.
That wording is helpful, it would be useful to back some of it
up with references to authority on the points made, or reference
to cases that have been won on those points (perhaps from recent
cases where you have succeeded with that wording).
If the OP wants to take them to task on this point then I'd
support them, and indeed it would be useful to see a case go to
court on this point to test it out (unless you're already aware
of any previous cases you've been involved in). But it's
important that we make clear to the OP that this is not a slam
dunk win, and we cannot guarantee success.
#Post#: 34311--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: August 23, 2024, 6:56 am
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If the judge was left to interpret, then the advocate or LiP did
not present their argument or point clearly enough.
I do not have any precedent to hand because not a single claim i
have advised on has ever reached a hearing. Every claim has
either been discontinued or struck out before a hearing. It’s a
proud achievement and down to valid argument of the points and
good advice from a very long serving district judge who I am in
daily contact with.
I am still waiting for my first claim where I can actually argue
the points as a lay rep on behalf of a defendant. For now, I
practice on the judge.
#Post#: 34318--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: August 23, 2024, 7:28 am
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--- Quote from: b789 link ---
>
> Why would you not wish to go to court? Do you feel that the
PCN has been issued fairly? If so, you can pay it with a clear
conscience.
>
> However, if you feel it was issued unfairly, then simply
paying it to take advantage of what is called the “mugs
discount” is the equivalent of knowingly paying a scammer and
therefore perpetuating the problem.
>
> Having obliterated all the dates and times and not shown us
the back of the NtK doesn’t help us to help you but invariably,
PE fail to fully comply with PoFA 9(2)(e)(i). I have had
extensive and continue to have discussion almost daily with a
long serving district judge and he has confirmed that the
argument about 9(2)(e)(i) is a perfectly valid defence point
and, as is seen in the PE NtKs I have shown him, does not comply
and only the driver can be liable.
>
> If using that point, all you have to do is draw the judge to
that point. If there are other possible PoFA failures as
highlighted by [member=103]DWMB2[/member], then you do the same.
It is nothing about being “tested in court”. Judges make their
decisions based on facts. If you can show a “fact”, then it is
so. The only time a “balance of probability” comes into play is
when there are no “facts” to prove a point.
>
--- End Quote ---
Thank you so much for your reply.
Just to add, my earlier imgur link does show the back of the NtK
if that helps. And admittedly whilst I did remove times from the
images I posted, I did reply showing what these were.
In answer to your question, I don't wish to go to court over
this matter. I am unsure whether the PCN has been issued fairly.
#Post#: 34321--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: August 23, 2024, 7:46 am
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The NtK does fail to fully comply with all the requirements of
PoFA.
It is your money and your conscience. However, why exactly would
you not wish to go to court over this matter if you think you
may be unfairly charged even if you are not liable for that
charge?
There are many misconceptions about going to “court”. This is
not a criminal matter. It is a civil matter that would be dealt
with in the county court. There is no “prosecution” and no
“offence” has been committed.
Just in case you are imagining “Rumpole of the Bailey”, here is
a short video of what actually happens in a small claims
hearing:
Small claim court video link:
HTML https://youtu.be/n93eoaxhzpU?feature=shared
#Post#: 34808--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: August 28, 2024, 6:19 am
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Hi
I have now received a Parking Charge Notice Reminder.
HTML https://imgur.com/a/h5nj92z
What I noted is that the reminder notice does not have a
statement passing the charge from the driver to the keeper if
the driver is unknown. Is this usual, and does it change the
original notice at all?
Should I wish to contest the charge to the driver, would it be
best to do nothing and wait it out or to appeal?
Thank you
#Post#: 34810--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: DWMB2
Date: August 28, 2024, 6:27 am
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The reminder is essentially discretionary, they don't need to
send one, and as such there is no prescribed content as such.
It is the original notice that is important.
If you plan to fight the matter my personal view is that you
should appeal rather than waiting for them to sue you.
#Post#: 34811--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: Rightbak
Date: August 28, 2024, 6:30 am
---------------------------------------------------------
--- Quote from: DWMB2 link ---
>
> The reminder is essentially discretionary, they don't need to
send one, and as such there is no prescribed content as such.
>
> It is the original notice that is important.
>
> If you plan to fight the matter my personal view is that you
should appeal rather than waiting for them to sue you.
>
--- End Quote ---
Thank you
#Post#: 34814--------------------------------------------------
Re: Parkingeye PCN KFC Portsmouth North Harbour
DIR By: b789
Date: August 28, 2024, 7:00 am
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Where has it been suggested that the PCN is not appealed??
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