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#Post#: 70957--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: H C Andersen Date: May 11, 2025, 2:06 pm
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The payment terms have nothing to do with the statutory warning
as I posted. There could be some conflict if the payment period
is greater than the mandatory warning trigger, but this does not
apply.
I suggest this is a dead end and the OP look for a more
substantive argument if they must.
#Post#: 70974--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: kgw Date: May 11, 2025, 4:40 pm
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Are you suggesting that the grounds regarding PPSCoP, 9(2)(b),
(e)(i) and (i) points have little merit ?
#Post#: 70982--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: H C Andersen Date: May 12, 2025, 2:53 am
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The appeal to POPLA was unsuccessful. The OP can rattle cages in
the form of a complaint or whatever but IMO these are baseless.
The invitation for the keeper to pay could be seen in the words
'you[the addressee and registered keeper] may pay or appeal'.
The NTK also states 'the driver of the motor vehicle is required
to pay this parking charge'.
#Post#: 70990--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: kgw Date: May 12, 2025, 4:22 am
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What strikes me is that you and b789 seem to have a wealth of
experience, yet have pretty radically different points of view,
with b789 arguing for a strict application of PoFA while you
accept a much more lax approach, accepting that the "pay now or
tell us who was driving" alternative which PoFA 9(2)(e) mandates
is fulfilled in the NtK by merely writing "You can pay or appeal
this charge"
Not sure what to do.
#Post#: 70998--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: DWMB2 Date: May 12, 2025, 5:23 am
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Despite their difference of opinion, I'm not sure either of them
are actually advocating that you do anything different at this
stage. Now that the POPLA appeal is concluded, you are
essentially waiting to see if Parkmaven decide to escalate to a
court claim.
In the meantime, if any complaints etc. result in the matter
being discontinued, great. With that in mind, there seems to be
little harm in trying.
I don't think we've seen any cases where this exact point has
been tested in court (mainly because the vast majority get
discontinued, and the few that progress to a hearing often have
multiple defence points at play). If the specific point were to
be argued in court, I would speculate that the decision would
depend somewhat on the judge on the day.
If it were me in receipt of the parking charge notice, I would
stand my ground and fight the matter.
#Post#: 71006--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: b789 Date: May 12, 2025, 6:07 am
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The point about making a complaint to POPLA about a flawed
decision is not to get the decision reversed. POPLA will never
reverse a decision, even when they admit that the decision was
wrong. It is to get them to admit it and have any internal
processes applied to get their assessors to re-educated.
Also, by establishing a paper trail which highlights any errors
by POPLA, you then have valuable evidence that can be used in
future, not just by yourself but people like us who often have
to deal with this company in other cases.
The point about being pedantic about whether PoFA has Ben
complied with, is that it is poorly written in certain aspects.
However, there is one thing that is required, and that is full
compliance with all the requirements of PoFA if the creditor
wants to be able to transfer liability from the unknown driver
to the known Keeper.
So, the example of implied obligation is flawed:
[indent][quote author=H C Andersen
link=topic=4677.msg70982#msg70982 date=1747036387]
The invitation for the keeper to pay could be seen in the words
'you[the addressee and registered keeper] may pay or appeal'.
The NTK also states 'the driver of the motor vehicle is required
to pay this parking charge'.
[/quote][/indent]
Paragraph 9(2)(e)(i) of PoFA requires that the notice must
invite the keeper to pay the unpaid parking charge. While the
Act does not require any particular wording or the use of the
word "invite" itself, it does require that the keeper be clearly
and directly asked to make payment. Simply stating that “you may
pay or appeal” is ambiguous and does not amount to a clear
invitation for the keeper to pay. That phrasing offers two
generic options without clarifying that the keeper, as opposed
to the driver, is being asked to settle the charge.
Likewise, stating that the driver is required to pay does not
assist in fulfilling the requirement, as it refers to a
different party. An implicit obligation or assumption that the
keeper understands they are being asked to pay is not enough.
The Act requires a positive act of communication inviting the
keeper to do so. If that is missing or unclear, the notice fails
to comply with paragraph 9(2)(e)(i).
Just as someone cannot be partially or even mostly pregnant, a
Notice cannot be partially or even mostly PoFA compliant. It is
a binary matter. It either is, or it isn’t.
Whilst this point specifically has not been argued in court, and
even if it were, it would not be binding anyway, I have argued
it extensively with a district judge and have it on their
authority that had it been argued as I have above, it would
convince him that the Notice was not fully compliant with the
Act.
#Post#: 71025--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: H C Andersen Date: May 12, 2025, 7:33 am
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And OP, herein we do differ. I refer to the distinction between
mandatory and directory, as here:
HTML https://www.cambridge.org/core/journals/legal-studies/article/abs/mandatory-and-directory-rules/70E6CBF84A2FA2E883829D371D2AF805
b789 appears to be of the view that para. 9 is 'mandatory'. I am
not.
As DWMB2 observed, we haven't seen the point tested in court in
this context and even if it had, it would depend upon the nature
of any breach, the judge on the day and how the issue is
presented.
As long as you know that you are not embarking upon tried and
tested points of law as you progress, then fine. You can set
your expectations accordingly.
As observed, more often than not cases are not prosecuted to a
hearing even when a court claim has been issued.
They huff and puff, and to be honest so do we. Just so long as
you know.
#Post#: 71059--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: b789 Date: May 12, 2025, 9:46 am
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Paragraph 9 of Schedule 4 to the Protection of Freedoms Act 2012
is mandatory, not merely directory.
Here’s the legal distinction and how it applies:
[indent]Mandatory vs Directory – Definitions
[indent]• A mandatory requirement must be strictly complied
with. Failure to comply means the legal consequence does not
follow.
• A directory requirement should ideally be complied with, but a
failure to do so might not invalidate the process or
outcome.[/indent]
Why Paragraph 9 is Mandatory
PoFA Schedule 4 sets out a strict statutory scheme that allows a
private parking operator to hold a keeper liable only if all the
conditions in Paragraph 9 are met.
Paragraph 9(2) opens with:
[indent]“The notice must—”[/indent]
This is mandatory language. The use of “must” signals that each
element is a precondition to keeper liability. Courts have
consistently interpreted statutory provisions like these as
mandatory when they confer a benefit or impose a liability only
if certain conditions are satisfied.
If a Notice to Keeper fails to comply with any part of paragraph
9(2)(a) to (i), then the operator cannot rely on PoFA to
transfer liability to the keeper. There is no judicial
discretion to overlook or “substantially comply” with these
elements — it is a strict test.
Conclusion: Paragraph 9 is a mandatory provision. Each
requirement must be satisfied in full for the keeper to be held
liable. Any failure — even a technical one — invalidates the
operator’s right to pursue the keeper under PoFA.
#Post#: 71069--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: DWMB2 Date: May 12, 2025, 10:23 am
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[quote]They huff and puff, and to be honest so do we.[/quote]
Sadly we've not quite managed to blow their house down, just yet
;D
#Post#: 71074--------------------------------------------------
Re: Parkmaven NtK and unsuccessful appeal
By: kgw Date: May 12, 2025, 10:41 am
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I, like b789, tend to read "must" as implying mandatory. But I'm
not a judge.
Are there cases where judges have upheld NtKs that did not
strictly meet PoFA requirements ?
That being said, 9(2)(e) (i) and (ii) go hand-in-hand because
they are logically connected.
The notice (...) must (...) invite the keeper
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify
the creditor of the name of the driver and a current address for
service for the driver and to pass the notice on to the driver
So NtK must have a (i) OR (ii) alternative to comply with
9(2)(e), not just (i) somewhere in the text and (ii) somewhere
else. NtKs need to follow 9(2)(e)wording. (i) and (ii) cannot be
separated because there's a logical OR between them
Further, the Boolean opposite of this proposition is [s](i)[/s]
and [s](ii)[/s] (non-(i) AND non-(ii)) and this defines
non-compliance with 9(2)(e) precisely as worded in 9(2)(f) which
introduces the 28-day deadline:
The Notice (...) must (...) warn the keeper that if, after the
period of 28 days beginning with the day after that on which the
notice is given—
(i)the amount of the unpaid parking charges specified under
paragraph (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
So 9(2)(e) and (f) go hand-in-hand as well because they are also
logically connected. That's not buy accident; legislators wanted
it that way. So repeating the 9(2)(f) wording but not the
9(2)(e) wording, as Parkmaven did, makes no sense...which
reinforces the mandatory must.
I hope I'm being clear.
I know judges are not mathematicians but somehow the point needs
to be made
See
HTML https://www.youtube.com/watch?v=5c8dmhwus6g
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