Does a parking company need to follow the Protection of Freedoms Act?
Subject: Advice about a parking ticket
I have read your comment from “Readers’ emails: Does a parking company need to comply with POFA 2012? Posted on October 27, 2014 by Parking Cowboys.
However, I do not really understand your response. The law clearly states that CCTV PCNs must arrive within 14 days, with day 1 being the day after the incident (the law also clearly specifies what would be the time expected for postal delivery of a PCN – 2 days after the post date, but with Saturdays, Sundays and bank holidays excluded, thus making it more difficult for the companies to meet the 14 day obligation when the incident occurred at a weekend).
Surely, if you as the keeper accept liability (independently of who was actually driving), but the PCN did not reach you within WITHIN 14 days, then the PCN is not legally compliant and therefore it would have no chance of being enforced in a small claims court.
I also make this point because I think that many people seem to focus their anger on other more subjective aspects of why their PCN was unfair (which may not stand up in court), when the first thing to do is to check the date of the PCN to see whether it can be simply ruled out because it is not legally compliant time-wise.
It is simple; if they want to invoke keeper liability as laid down in legislation, then you are correct; they need to follow the conditions as laid down in the Protection of Freedoms Act. However, the parking company does not have to enforce the ticket using POFA.
A private parking charge is based on a contract alleged to be made between the driver and the parking company. If the parking company knows who the driver is, then POFA is irrelevant; they can attempt to enforce against him or her directly. The requirements in POFA do not matter at all in that case.
Extending this further, a parking company could revert to the pre-POFA position of attempting to enforce the charge against the keeper on the assumption that he was the driver. At a county court, decisions are made on the balance of probability. If they can demonstrate that in court, then they might have a chance of enforcing the charge without using POFA. Before POFA, this was infrequently attempted in court so I do not know the success rate. You might do well to ask on the forums whether this tactic is ever successful.
It’s a ridiculous situation, I agree. This is a result of POFA only attempting to partially legislate for the industry, rather than fully legislate for it.
Best of luck