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Suspended Bay, out of the blue, we got a PCN but there was no sign the bay was going to be suspended
IlBrugno
post Tue, 15 Oct 2019 - 20:19
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Hello,
thank you very much for having me.

I am not originally from the UK, so I guess a lot of what I am about to describe is due to my ignorance of the law, so please bear with me : )

On Sunday. Sep 15 we parked our car. There were no signs claiming the bay was suspended.
The following Sunday, Sep 22, we went to get our car and it wasn't there.
We called the Council but we couldn't get to talk to anyone.
We then filed a police report, as we believed the car was stolen.
The police called us back after 15 minutes telling us the Council moved our car, and to check into the TRACE system (that we weren't aware of).
We found our car in the TRACE system, the location it was dropped at, and a note saying the car was moved because it was on a motorcycle bay.
Now, I am TOTALLY sure we did not park on a motorcycle bay. I clearly remember us checking, and the bay beside the one we parked in was the only motorcycle bay.

We went to get our car and we found 2 PCN: one issued on Sep 16, the other on Sep 17, both of them identical.
The code is 21p: parked wholly or partly in a suspended bay or space.
I checked the two PCNs online and there was no image whatsoever.

I then appealed the PCN asking them:
- to clarify whether the car was on a suspended bay or on a motorcycle bay
- to ask for image proofs, as I believed we weren't parked in a suspended bay

This is what I got from them:
"You were given a Penalty Charge Notice for parking in a bay that had been suspended. There were yellow signs saying
'Warning. Parking suspended. No waiting, loading, unloading'. Bays are generally suspended to allow for roadworks or large
delivery vehicles.
It is up to drivers to check on their car every day to make sure that their parking bay is not being suspended.
Please be advised that photos are secondary evidence and are not mandatory. A lack of photographic evidence does not
invalidate the Penalty Charge Notice which was issued correctly."

What I believe has happened is: they suspended the bay on Sep 16 and fined us. Then they fined us the day after, and on the third day, they moved the car away.

Now, I did not even know a bay could be suspended out of the blue.
I honestly find it ridiculous that one has to check the car every single day to see whether the bad had been suspended.

Is there anything we can do? Shall I just pay and shut up?

Thank you very much

Regards

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IlBrugno
post Wed, 16 Oct 2019 - 23:23
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QUOTE (Mad Mick V @ Wed, 16 Oct 2019 - 20:01) *
I remember the lapsed SoS Guidance and removing a vehicle displaying a BB was a non-starter.

If the last bit posted by stamf is the Council's current protocol then that's the line to take above all others --they cannot act against their own procedures since it would be unfair and prejudicial. A disabled person traipsing the streets looking for their vehicle is just not on.

Mick


Thank you very much guys for everything.

They have put the images on, just on the second PCN
https://imagizer.imageshack.com/img922/1995/MNJLKf.png
https://imagizer.imageshack.com/img923/3896/eOo1NJ.png
From the images you guys can see that the suspension started the 16th of october.
You can also see our car, that is parked on the 2nd bay, the one they suspended.

To summarize:
- The second PCN can be challenged for "continuous contravention"
- The case of the first PCN is as follows
- when we parked on Sep 15 I believe the sign was not there
- they probably put the sign on Sep 16, and they issued the first PCN
- the day after they issued the second PCN and moved the car away.
They didn't make me pay to get our car back, so I cannot appeal on that. Even if they were not allowed to move the car, they already issued the 2 PCNs.
In their rejections, they already said that even if the sign was not there when we parked, it's our duty to check every day. Is that correct?
May I ask them when they put the sign on? If they tell me they put the sign on Sep 16, as I believe, may I tell them this is not a reasonable notice time? And if they refuse to say?

To answer your questions, the address in the VC5 is correct and up to date

Regards and thank you guys again


Another small question. Some months ago, We received 3 PCNs in a row because the car was parked on a D112 bay. That's completely our fault, we wrongly thought that Blue Badge could park in D112, as it's a bay for disabled people, that's why I paid all the PCNs (Still don't know what D112 is as I couldn't find it while googling!).
I didn't know about the "continuous contravention" principle that you explained here.
I naively thought a Council would NOT fine people against a law principle, so I assumed they were legitimate to issue three PCNs in a row.
I guess I cannot do anything as I paid already, can I? smile.gif
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IlBrugno
post Wed, 16 Oct 2019 - 23:37
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Sorry guys, another question:
In this document
https://assets.publishing.service.gov.uk/go...al-guidance.pdf
the point 8.46 reads:
"If two or more PCNs are issued within 24 hours for the same contravention,
that is, to a vehicle that has not been moved, it is current practice to cancel
the second PCN. It may be sensible to review both PCNs and cancel the one
with the least robust evidence. For instance, if the digital photograph for one
was taken in the daytime and the other at night, the one taken in the light may
well be clearer. If one PCN is at the higher rate and the other at the lower
rate, the lower rate PCN should normally be considered first for cancellation"

However, the document has been discontinued, and this is the current version
https://assets.publishing.service.gov.uk/go...traventions.pdf
In this version, the pint 8.46 has been removed and I cannot find a similar one.

Does that mean that the "continuous contraventyion" principle does not apply any more?

Thank you very much
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cp8759
post Thu, 17 Oct 2019 - 17:12
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I don't see continuous contravention having any role if the vehicle was in fact moved. Once of the statutory grounds of appeal is "that the vehicle had been permitted to remain at rest in the place in question by a person who was in control of the vehicle without the consent of the owner", clearly you didn't consent to the vehicle being moved (you didn't know about it so how could you consent).


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hcandersen
post Thu, 17 Oct 2019 - 20:25
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There is only one location in play: King's Place.

No PCN was issued for where the vehicle was finally located, only for King's Place where it stood for several days.
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IlBrugno
post Fri, 18 Oct 2019 - 20:01
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Do you guya have any idea on the questuions that I raised?

I will quote them here

FIRST PCN
The case of the first PCN is as follows
- when we parked on Sep 15 I believe the sign was not there
- they probably put the sign on Sep 16, and they issued the first PCN
- the day after they issued the second PCN and moved the car away.
They didn't make me pay to get our car back, so I cannot appeal on that. Even if they were not allowed to move the car, they already issued the 2 PCNs.
In their rejections, they already said that even if the sign was not there when we parked, it's our duty to check every day. Is that correct?
May I ask them when they put the sign on? If they tell me they put the sign on Sep 16, as I believe, may I tell them this is not a reasonable notice time? And if they refuse to say?

SECOND PCN
In this document
https://assets.publishing.service.gov.uk/go...al-guidance.pdf
the point 8.46 reads:
"If two or more PCNs are issued within 24 hours for the same contravention,
that is, to a vehicle that has not been moved, it is current practice to cancel
the second PCN. It may be sensible to review both PCNs and cancel the one
with the least robust evidence. For instance, if the digital photograph for one
was taken in the daytime and the other at night, the one taken in the light may
well be clearer. If one PCN is at the higher rate and the other at the lower
rate, the lower rate PCN should normally be considered first for cancellation"

However, the document has been discontinued, and this is the current version
https://assets.publishing.service.gov.uk/go...traventions.pdf
In this version, the pint 8.46 has been removed and I cannot find a similar one.

Does that mean that the "continuous contraventyion" principle does not apply any more?

ANOTHER SMALL QUYESTION
Some months ago, We received 3 PCNs in a row because the car was parked on a D112 bay. That's completely our fault, we wrongly thought that Blue Badge could park in D112, as it's a bay for disabled people, that's why I paid all the PCNs (Still don't know what D112 is as I couldn't find it while googling!).
I didn't know about the "continuous contravention" principle that you explained here.
I naively thought a Council would NOT fine people against a law principle, so I assumed they were legitimate to issue three PCNs in a row.
I guess I cannot do anything as I paid already, can I? smile.gif

Thank you very much again
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cp8759
post Sat, 19 Oct 2019 - 14:34
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To take this further you must wait for the Notice to Owner for the two PCNs. Do not respond to the NtO without showing us a draft of your representations first.

That being said, your representations must query the date when the sign was put up. For continuous contraventions, there is a relevant tribunal decision, Suki Ashley Fraser v London Borough of Barnet (2170557869, 09 February 2018) http://bit.ly/2GjRMiG

Forget about the PCNs from months ago, once you pay it's game over.


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IlBrugno
post Sat, 19 Oct 2019 - 16:04
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I would like to write the following

FIRST PCN
Dear sirs
Thank you for your answer to my first representation.
We parked our car on Sep 15 and we believe the sign was not there yet.
We may be wrong though, so I would like to know when the sign was put in place.
I know you told me already it is our duty to check each day, but I would like to understand what time if the day it would be reasonable for us to check

SECOND PCN
Dear sirs, we received 2 PCN for the same reason. The car was not moved during the time between the 2 PCN. We believe the second PCN should be canceled, as it represents a case of “continuous contraventions”, as per
Suki Ashley Fraser v London Borough of Barnet (2170557869, 09 February 2018) http://bit.ly/2GjRMiG

In the first message, I have not mentioned I would like to understand if the notice was fair. Maybe it’s obvious but I preferred not to mention for the time being.

I am a little bit in a hurry, as tomorrow is the last day I can appeal before the discounted period ends

Thank you VERY VERY MUCH again
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cp8759
post Sat, 19 Oct 2019 - 16:23
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If you want to take this further you need to wait for the Notice to Owner, if you've already received an informal rejection the council will not extend the discount again. The enforcement process is explained here: https://www.londontribunals.gov.uk/eat/unde...rcement-process

Basically to take this forward you must forget about the discount, at least for now. The council is likely to re-offer the discount at the NtO stage but the only guaranteed way for you to keep the discount is to pay now. You cannot pay and challenge obviously, it's one or the other.


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Mad Mick V
post Sat, 19 Oct 2019 - 16:39
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If the Blue Badge was issued by this Council they will have all your contact details.


What gripes me is you had to contact TRACE then tramp the streets to locate your vehicle rather than the Council having the courtesy to either ring you or post a note through your letterbox.

They have a duty of care under the Equality legislation which is sadly lacking in this case.

This Council can and will tow or relocate any vehicle according to its parking enforcement protocols so we don't appear to have any grounds for an appeal on relocating a BB car.

Mick
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IlBrugno
post Tue, 5 Nov 2019 - 22:46
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Ok guys, I received the 2 NtOs.

This is what I would like to reply. I'm not sure the tone is correct, as English is not my primary language.

FIRST PCN
Dear sirs,
I am preparing my defense at adjudication, as I believe there could be a procedural impropriety, that could be a reason for cancellation of the PCN.
I would demand to have evidence that the suspension was correctly authorised by a Notice under section 14(2) of the RTRA 1984 and that it contained all the details as required by regulation 10(2) of the Temporary Restrictions Procedure Regulations 1992.
I would need to have evidence that regulation 10(3) has been fully complied with regarding notifying statutory bodies such as the Chief of Police.
I would require evidence that Notices were erected in accordance with the regulations Schedule part 2 and that part 3 of the Schedule was also complied with regard to the placing and removal of traffic signs.
Could you please provide such evidence to me?
Thank you very much for your attention
Kindest Regards

SECOND PCN
Dear sirs, we received 2 PCN for the same reason.
The car was not moved during the time between the 2 PCN.
We believe the second PCN should be canceled, as it represents a case of “continuous contraventions”, as per
Suki Ashley Fraser v London Borough of Barnet (2170557869, 09 February 2018) http://bit.ly/2GjRMiG

Could you guys tell me if that would be OK?
Thank you very much again.
m
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cp8759
post Wed, 6 Nov 2019 - 17:51
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You're on the wrong track, as you were parked in a parking bay, the TTRO regulations do not apply. Instead, the (permanent) TRO that created the parking bay will include a power to suspend parking.

Here's a draft representations, I recommend you print it off and send it in the post, keeping all italics exactly as I've used them below. Never include any links in a representation, nobody will click on them.

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

Dear London Borough of Hounslow,

I parked my vehicle lawfully on Sunday 15 September, at the time there were no suspension signs in place. Unbeknown to me, the council suspended the parking bay and issued two penalty charge notices on 16 and 17 October 2019. In its informal rejection, the council asserts that "It is up to drivers to check on their car every day to make sure that their parking bay is not being suspended" however there is no such rule neither in law, nor in the Highway Code nor anywhere else. On the contrary, this rule seems to be of the council's own invention.

In Umair Ali Zaman v London Borough of Newham (2170385810, 09 September 2017) the tribunal held as follows:

"Mr Zaman does not dispute being parked in the residents permit bay in question. He states he parked and left to visit a
friend in Scotland. At the time of his departure the bay was not suspended and he was parked legally.

The enforcement authority state that he should have taken steps in the event of long term absence to ensure the vehicle
could be moved if needed. They advertised works on the highways would be taking place through various media and Mr
Zaman would have been aware of this.

It is for the enforcement authority to prove Mr Zaman parked in contravention of the suspension. However no evidence has
been provided about when the suspension notice was put up, the details of what work was notified in the media referred to
and whether that included specifics about what bays would be suspended and when.

The enforcement authority state Mr Zaman has produced no evidence to show he was away when the bay was suspended.
However since Mr Zaman has raised the question it is for the enforcement authority to prove his vehicle was not present
when the bay was suspended. It is usual to expect when a bay is suspended that the enforcement authority take
photographs of vehicles in the bay at the time or even move the vehicles to a legal bay. Either course would prevent
inadvertent contravention.

I am not satisfied Mr Zaman knew of the contravention at the time he parked and therefore find the contravention did not
occur.

I allow this appeal.
"

In Alan Francis v London Borough of Tower Hamlets (2160242963, 11 July 2016) the tribunal similary ruled that:

"On the evidence before me carefully I find the following:

1. the vehicle was last left at rest at this bay in Settles Street on 28 March 2016
2. Mr Francis checked that he could properly park the vehicle at that time
3. there were no suspension advance warning signs when the vehicle was
parked there
4. the vehicle was not moved before the Penalty Charge Notice was issued on
13 April

The Enforcement Authority have not produced a copy of the resident parking
permit conditions. The Enforcement Authority have not stated that there is any
specific requirement to, for example, check the vehicle every seven days for
possible advance warnings of suspensions.

Absent any such requirement, I find that a period of 16 days is not in itself
unreasonable in the circumstances in which to leave a vehicle in a bay whilst
displaying a valid permit for that bay.

Considering all the evidence before me carefully I determine, for the reasons
stated, that this appeal must be allowed.
"

Finally in Peter Brosnan v London Borough of Brent (2180194309, 18 June 2018) the tribunal ruled that:

"On balance I prefer the
evidence of the Appellant and find that the sign was not in place at the time
of parking.

The Appellant has understandably assumed that if this is so no
contravention can occur and this appears to be accepted by the Council.
Although I share this view I have to note that the law is perhaps not so
clear cut. In a recent decision of the Court of Appeal (Camden LBC v
Humphreys [2017] EWCA Civ 24) a similar issue fell to be decided in the
case of a motorcyclist who left his motorcycle in an unsuspended bay
which was subsequently suspended incurring a PCN. The motorist
succeeded in a |Judicial review hearing in the High Court at which the
Council unaccountably did not appear. The Council subsequently
appealed to the Court of Appeal. They failed, but purely on the basis that
they were too late and should have made their submissions to the High
Court at the original hearing. The Court of Appeal, however did express a
provisional view as to what the law was in this type of situation. The
majority view was that the Council is only required to prove that the bay
was suspended and that the vehicle was parked within it for a
contravention to occur. The view of the remaining Lord Justice of Appeal
was that some form of notice of the suspension would be required. The
Court emphasised that the views expressed were only provisional pending
the law being fully argued in some subsequent case; and therefore
technically the views expressed are not binding on me. With great respect I
agree with the minority view; it seems to me a principle of all parking law
that the motorist should have some notice of a restriction or prohibition
when deciding whether to park.

As I am not satisfied adequate notice of the suspension was given the
Appeal is allowed.
"

In the present case, less than 24 hours notice of the suspension were given, this is inadequate notice. The council's own Parking & Traffic Enforcement policy states, amongst other things, that:

At the time of sign placement, details of all vehicles in the suspended area are recorded and
the signs are photographed.


If the council did comply with its own policy and note the details of my vehicle, it will be easy to confirm that my vehicle was lawfully parked prior to the erection of the suspension signs. In light of these facts, the PCNs should both be cancelled.

In any case the second PCN must be cancelled because the vehicle was not moved at any time between the date of issue of the first PCN and the date of issue of the second PCN, the vehicle was therefore only left stationary on one occasion. I am aware some councils are of the misapprehension that a PCN may be issued once a day or once every 24 hours, but again no such rule exists in the law, the Highway Code or anywhere else.

In Suki Ashley Fraser v London Borough of Barnet (2170557869, 09 February 2018) the tribunal ruled as follows:

"In this case the restriction on footway parked
imposed by Section 15 of the Greater London Council (General Powers) Act 1974 (as amended) is a continuous one,
i.e. it applies 24 hours a day, 7 days a week, without any breaks, in the same way as double yellow lines indicate a
prohibition on waiting at any time. It follows that it cannot be alleged that a vehicle which remains stationary in the
same position has been parked repeatedly in contravention of such a restriction. Consequently PCNs may not be
issued repeatedly – the first PCN issued to a vehicle parked in contravention for such a “continuing” contravention is
the only one that can be validly issued. The only valid further enforcement action that an Enforcement Authority may
take once one PCN has been issued is to remove the vehicle.

This means that the PCNs subject to this appeal, being the second and third in time, were not valid PCNs, and
therefore may not be enforced.

I therefore allow this appeal.
"

In light of this, the second PCN must be cancelled even if the council believes that the alleged contravention occurred.

The council is reminded that although previous adjudications are not binding they can be persuasive, and there is no reason to believe that the tribunal would interpret the law any differently in this instance. The council is therefore invited to refrain from inserting templated wording in its Notice of Rejection that asserts that previous decisions are not binding and each case is decided on its merits, as such wording will not assist me or the tribunal, and is unlikely to help the council's case.


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IlBrugno
post Thu, 21 Nov 2019 - 22:55
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Thank you very, very, very much
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IlBrugno
post Tue, 14 Jan 2020 - 00:47
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Ok, they replied to my representations.
They say the sign was there already and was placed on the 9th of October. They sent a picture dated Oct 9 to prove that.
I could swear it wasn't there, but they got me on this,
I am kind of ashamed as I raised this issue and now it turs out the sign was there already, but, as I said, I could swear it wasn;t there.
Anyway, in the response they just plainly ignored the what I said about the second PCN.
What are the steps for me to challenge just the second PCN, now? Would you want to have a copy of their response?
This is my last question, and then I promise I will not waste your time anymore.
Thank you for all the help you gave me so far.
Cheers
m
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Mad Mick V
post Tue, 14 Jan 2020 - 13:08
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OP----if your vehicle was parked up in September and not moved (until relocated) then it doesn't matter that they had a sign up on 9 October, you were still legally parked.

Let's have a look at their letter.

Mick
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cp8759
post Tue, 14 Jan 2020 - 21:30
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Indeed, let's see what the council's rejection letter says.


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IlBrugno
post Mon, 20 Jan 2020 - 22:54
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Sorry about the delay

Here you can find the text of the rejections (they're both identical)

https://imagizer.imageshack.com/img924/3751/TXjXvl.jpg
https://imagizer.imageshack.com/img924/7964/5uyy51.jpg

Thank you AGAIN
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Mad Mick V
post Tue, 21 Jan 2020 - 09:02
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Jeez!

You look to have missed the deadline for an appeal to the tribunal if the NOR was dated 18th December.

You will have to get something in TODAY by e-mail and have a reason for late submission (illness!)

I will draft you something this morning by way of an appeal.

EDIT

Get this off asap--it's basic but it refers to your other submissions:-

Owners Name & Address

APPEAL AGAINST TWO PENALTY CHARGE NOTICES-- NOs. ???????????

The Charge

Contravention 21 Parked wholly or partly in a suspended bay or space

Circumstances

The vehicle was displaying a Blue Badge and was parked in its usual parking space on 15th September 2019. At that time there were no signs to indicate there was any restriction. On 22 September the car was found missing so the Police were informed that it had been stolen. The Police indicated, through TRACE, that it had been relocated and indicated its position. On locating my vehicle there were two PCNs attached.

Appeal

My appeal is based on my previous submissions which relate to the following grounds:-

1) The Council has failed in its duty of care by towing a vehicle displaying a Blue Badge; it is not good enough that disabled people have to tramp the streets of the Borough looking for their vehicle;

2) The 2nd PCN of 17th September should be cancelled as a continuous contravention; The Council has not responded to this ground and there is a complete failure to consider this issue;

3) The Council were asked at an early stage for their suspension log plus photographs all of which were denied, ergo there is a failure to consider my ground that the signage was not present when I parked my vehicle. The Council’s NOR is the first indication I have been given that the sign was posted on 10th September.

4) I maintain that there was no suspension sign erected when my vehicle was parked on 15th September.

Yours

Mick

This post has been edited by Mad Mick V: Tue, 21 Jan 2020 - 10:09
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IlBrugno
post Fri, 24 Jan 2020 - 23:08
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Thank you very much Mick
I have sent an email as soon as I have seen your message. Sorry about not having replied here. I sent the reply in a rush, then I had to do some work related stuff and forgot to reply to thank you.
Thank you VERY MUCH, I really appreciate your help.
Let's see what happensa now...
Thank you VERY VERY VERY MUCH again
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