NCP ANPR ticket - driver not identified Options

[MickW]

Hello

Looking for some assistance here. My vehicle was recently driven into an NCP car park, and was photographed on entry and again on leaving after spending just under 20 minutes in the car park. The driver apparently forgot/failed for some other reason to purchase a ticket. I have received all of the usual correspondence and have written to them stating that I am not in a position to identify the driver at the material time as I cannot remember who it was that was driving the car on that particular day, and judging by the photographic evidence they have provided, neither are they (it was an ANPR ticket). I also told them that I made a request for a POPLA code at that time but received no response.

I have now received a letter before claim from their debt collector (BW Legal), and contacted NCP again pointing out all of the above and again requesting POPLA code, which they are now refusing to provide on the grounds that it’s ‘too late’ and they are directing me back to the debt collector.. I haven’t corresponded with them yet, but realise that the clock is ticking.

I have contacted NCP once more stating that my request for a POPLA code is still valid, as there is nothing whatsoever to prevent them from considering a challenge at any stage. I am also saying that refusing access to their alternative dispute resolution procedure on these grounds would be unreasonable and a breach of the Civil Procedure Rules.

I have made an SAR asking for all correspondence in relation to this matter, but they have not fully complied, only sending me a copy of their 'final reminder' document which shows their 'photographic evidence' which, as stated, only shows the bottom half of the front and rear of the car entering and leaving the car park and does not show who was driving. I have requested that they fully comply with the SAR by providing me with copies of the NTK, PCN and any other relevant documents and I will update this thread once I receive a response to these latest requests.

Ultimately I am basing my appeal on the fact that they have failed to identify the driver of the vehicle at the material time, and cannot hold the registered keeper of the vehicle liable for a contravention that was carried out by an unidentified person. I am not legally responsible for the actions of the person driving the vehicle, and they could not legally oblige me to provide them with the identity of the driver, even if I were in a position to do so.

Not too sure how strong this defence would be in court so that’s one thing I could do with some advice upon – something to do with whether POFA applies(?) and I am not sure whether it does in this instance.

I realise I may be skating on thin ice but any input would be gratefully received.

Thanks for any advice you may be able to give.


M

This post has been edited by MickW: Sun, 30 Dec 2018 - 14:17

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[cabbyman]

Enjoying this with my popcorn! 🍿

[MickW]

Okay well I tried...I asked them to confirm that they never sent out a Notice to Keeper, and so there is no possibility of any keeper liability but they're ignoring me now

So POPLA appeal has been launched stating the above grounds

Will let you know how that goes...

[nosferatu1001]

Indeedd, and you can point that out in the POPLA appeal - that the operator has confirmed, through the SAR, that no NtK was generated and sent by them. You asked for confirmaiton of this, however the operator has refused (and give the proof you did this as an attachment or, as a screenshot wihtin the text of the appeal so it directly follows on from this point) to confirm. As such the only conclusion is that the operator has not committed a breach of the DPA2018 and thereofre there was no NtK. The appeal MUSt be upheld on this point alone, as it is impossible for a Keeper to be liable in a case where the poerator has admitted they have not served a NtK.

[MickW]

Okay - here's what POPLA came back with:

Thank you for your correspondence.

Resolver is a customer service dispute platform, it is not an appeals service.

POPLA can only become involved if the operator has rejected an appeal and issued a 10 digit POPLA Code.

You must have then contacted our service within 28 days of the code being issued.

The information provided is unclear if you have received a POPLA Code from the operator or not.

Please raise your appeal against the Parking Charge Notice with the operator directly, rather than through Resolver if you have not already done so.

Once you have received a POPLA Code please visit www.popla.co.uk to raise the appeal online.

If you attempt to raise the appeal after the 28 day expiry date of the code the issue will be outside of our remit and we will not be able to assess the charge. If this happens you may wish to seek independent legal advice.

Yours sincerely,

Michael Pirks

POPLA Team

Let's see where we go from here - I'm thinking I may hear from BWL quite soon...

[MickW]

Have responded thus: (with a suitable nod of appreciation to Nosferatu)

Dear POPLA,

Thank you for your email. As you will see if you read through the Resolver case file that I appended to my initial message, I have requested a POPLA code from the operator. I have also informed you that, to the best of my knowledge, NCP never sent me a NtK or a PCN and they are apparently unable to produce one now. In these circumstances, I fail to understand how you would have expected me to appeal the PCN at all. let alone apply for a POPLA code and to have contacted your service within 28 days of the code being issued.

Regardless of any of the foregoing, clearly, if no NtK was generated and sent by them, or produced by them in response to my SAR, the only conclusion to be drawn, if NCP has not committed a breach of the DPA2018, is that there was no NtK. The appeal must be upheld on this point alone, as it is impossible for a Keeper to be liable in a case where the operator has admitted they have not served a NtK.

Regards, etc

This post has been edited by MickW: Fri, 11 Jan 2019 - 16:02

[MickW]

UPDATE:

So, unsurprisingly POPLA are still ignoring me! However, a nice, bespoke (read expensive) letter arrived today from BWL accompanied by a copy of their Privacy Policy and a load of irrelevant guff about the right to restrict data processing, the letter itself then (somewhat perversely) stating their view that the right to restrict data processing is not applicable in this case, a point with which I would agree, but believe is neither here nor there. Happy to reproduce the whole thing, but I think the only pertinent part of the letter is the following:

“Whilst we acknowledge that you have made a request for information with our client, it is important to note that this does not affect the validity of our client’s claim, meaning that our client has an overriding legitimate interest to recover the sums due to them.

As such, your account will not be suspended from further collection activity unless we are instructed to do so by our client. Please contact us etc.”

My response would be to argue that the request I made to their client, or rather the outcome of same, absolutely does affect the validity of their claim as they have failed to provide any documentation which establishes keeper liability.

Any more suggestions warmly welcomed – I think they’re on the back foot now!

[nosferatu1001]

Write back
STate that, either their client has lied and not supplied all information as required under the DPA2018 - potentially a criminal offence - or their client hasnt lied, but they havent served a NtK and therefroe cannot possibly have engaged "Keeper liability" under POFA2012
Please ask their client to explain which, within 14 days

Yours...

[MickW]

YES! Nicely done Nosferatu

Think I'll email them - in their letter they referred to an email I sent them so they are getting them.

As ever will keep you posted

[Redivi]

Dear Sir

Ref ****

Thank You for your letter dated ****

You client has informed you that it sent a Notice to Keeper
Its response to my SAR, however, does not include the Notice and states that there are no other documents

Please confirm within 14 days which of the above correspondence was truthful and which was not

Yours Faithfully

[MickW]

Okay well the cheeky b*ggers have decided to go ahead with Court action despite all the foregoing communications and the failure of their client to provide a PCN or NtK.

In the particulars of claim they state:

"(Monies claimed are) in respect of a parking charge notice (PCN) for a parking contravention which occurred on (date) in (location) in relation to (vehicle). The Defendant was allowed 28 days from the PCN date to pay the PCN but failed to do so."

My question would be if their client is unable to provide a copy of said PCN, how can the date of issue be determined?

I'm no expert but I'm pretty sure they're not complying with Pre-Action Protocols - just need some advice on how to frame my defence.

Thanks as always

MW

[nosferatu1001]

THey didnt comply with it. Action started so the PAP is over
You put a single line that they failed to folw the PAP in your defence
I presume no response to the above letter from Redivi????


What do you mean by "date of issue"? There was no NtK, according to the sAR, so there isnt a date of issue. It does mean the PoC is a lie - and was signed under a stamtene tof truth
This again goes in your defence. The defendant is not liable as the claimant has confirmed they did not issue a Notice to Keeper. Without a Notice to keeper no liability can be ttransferred to the keeper under the POFA ... (GIVE PRECISE REF). This was confirmed througha SAR responded to on X date . The PoC are misleading the court, as no PCN was issued to the Defendant.

[MickW]

Hi Nosferatu

Thanks for the response. By date of issue I was referring to part of their PoC where it says "the Defendant was allowed 28 days from the PCN date to pay the PCN but failed to do so."

If there is no PCN there can be no 28 day payment window, but I take your broader point, i.e. that if their client hasn't issued a PCN there can be no keeper liability either.

Unfortunately I missed Redivi's letter so was unable to send it on to them. However, I did send a similar message on 18th January (adapted from your post of the same date) which read:

Dear Sir or Madam

Further to your letter of 16th January I comment:

Either your client has lied and not supplied all information as required under the DPA2018 - potentially a criminal offence - or your client has not lied, but they have not served a Notice to Keeper and therefore cannot possibly have engaged "Keeper liability" under POFA2012

Please ask your client to explain which, within 14 days

Yours etc



There was no reply to this other than a rather pointless email which read:

"Good Afternoon

Thank you for your recent email, the contents of which have been noted on file.

Should you wish to discuss this matter via email, please confirm the following:

1.Please complete your full name

2.Please provide first line of your address

3.Please provide your postcode

You can also contact us etc etc... "

As they had clearly acknowledged my previous emails I felt that asking me to go through their Data Protection Protocol once more was unnecessary, and I considered that as I had asked them a question and as they had not replied the onus was on them to come back with an answer; I certainly was not expecting them to be so rash as to escalate straight to legal proceedings but there we are...

I will be drafting my defence later and posting it here so if you could give it the once over I would be very grateful.

Cheers

MW

[nosferatu1001]

It's not "rash"
They have an automated process. That's all

That isn't my broader point
It's that they have claimed the defendant - the keeper - was sent a pcn. In a statement of truth signed claim form. They lied!
So this is a defence point x that the claimant has signed a knowingly false claim form. They knew they had not sent a ntk at least on x date, which is the date they responded to your sar which confirmed no ntk. This was x days before they issued the claim on y date.

[cabbyman]

May I suggest, for clarity, that this thread ceases referring to a PCN and instead uses:

a) NtD - for Notice to Driver or windscreen ticket, or

b) Ntk - for Notice to Keeper.

Reading through, I think that confusion over the terms is not helping clarify the issues.

[MickW]

Surely it is a bit rash to issue legal proceedings and incur the costs involved, when you don't have a snowball's chance of succeeding because you are not paying even the slightest attention to due process?

Unless they just rely on people caving in when they see official court documents landing on their doorsteps...also known as the "throw enough **** against the wall and some of it will stick" method...

This post has been edited by MickW: Thu, 14 Feb 2019 - 21:30

[Sheffield Dave]

Unless they just rely on people caving in when they see official court documents landing on their doorsteps...also known as the "throw enough **** against the wall and some of it will stick" method...

Bingo! You've spotted the scam

[nosferatu1001]

It isnt rash. Rash requires human intervention. There is no human intervention.

[MickW]

Ha!

[MickW]

It isnt rash. Rash requires human intervention. There is no human intervention.

Well it's their business model I'm referring to, but it seems as though it's a calculated gamble on their part. I can't see the courts looking on them favourably though, if they're willing to waste everyone's time with this sort of nonsense !

[ostell]

Unfortunately the courts have no reason not to accept this behaviour.