PCN - received while vehicle was being loaded for 10 minutes.

[KHarHar]

@KHarHar, PCM's attempt to rely on Elliott v Loake is utterly pathetic.

They actually say:

"It can be assumed until proved otherwise, that the keeper of the vehicle is the driver."

No. It cannot.

There is no legal presumption whatsoever that the registered keeper was the driver merely because they are the registered keeper. The burden is not somehow reversed so that the keeper has to prove who was driving, prove that they were not driving, or account for every person who might have been driving the vehicle.

If PCM want to allege that the keeper was personally the driver, PCM must produce evidence identifying that person as the driver. Simply knowing who the registered keeper is proves nothing about who was behind the wheel on a particular day.

That is obvious in the real world. A vehicle may be driven, with the keeper's permission, by a spouse, partner, relative, friend, employee or any other appropriately insured person. The registered keeper recorded by DVLA is not a record of who was driving at any particular time.

PCM's reliance on Elliott v Loake is particularly desperate. Elliott v Loake was a criminal road-traffic prosecution, not a civil claim for an alleged parking contract, and it did not establish any legal presumption that a registered keeper was the driver. The court reached its conclusion because there was actual evidence linking the defendant to the vehicle and undermining his account. It is therefore no authority whatsoever for PCM's extraordinary proposition that "the keeper is assumed to be the driver until proved otherwise".

PCM are attempting to turn a fact-specific criminal case into a fictitious rule of civil liability which simply does not exist. That is not a minor misunderstanding of the law; it is a grossly misleading representation of what the case actually decided. It is precisely the sort of conduct that gives this former-clamping industry its reputation for using legal-sounding boilerplate to intimidate keepers into paying charges they may not owe.

The position is simple: PCM do not know who was driving. They openly admit that the keeper has not identified the driver. They cannot cure that evidential gap by inventing a presumption and then demanding that the keeper disprove it. If they wish to rely on driver liability, they need evidence identifying the driver. If they wish to rely on keeper liability, they must establish compliance with Schedule 4 of PoFA. Elliott v Loake does neither for them.

The particularly ridiculous part is that PCM themselves admit that you have refused to identify the driver. Precisely. They therefore do not know who the driver was. Unless you tell them, and you are under no legal obligation to do so, they have no way of knowing.

That is exactly why Schedule 4 of the Protection of Freedoms Act 2012 exists. It provides a separate statutory route by which a parking company may, if it has fully complied with all the statutory requirements, pursue a keeper without needing to know who was driving.

So PCM need to decide which case they are actually pursuing:

• Driver liability: identify the driver and produce evidence that the keeper was that person; or
  
• Keeper liability under PoFA: demonstrate compliance with Schedule 4.
  

What they cannot do is invent a third option:

"We don't know who was driving, therefore we will simply assume it was you until you prove otherwise."

That is complete and utter nonsense.

And PCM have also conspicuously failed to deal with the actual reason the vehicle was there. This was not somebody simply parking up because it was convenient. The vehicle was there briefly while heavy furniture was being collected from a resident, and there is contemporaneous evidence from that resident specifically saying that the car park could be used to "load and stuff".

That brings Jopson v Homeguard Services Ltd [2016] B9GF0A9E squarely into the discussion. In that residential parking case, heard on appeal by HHJ Harris QC, the court distinguished ordinary parking from the temporary stopping of a vehicle for the purpose of loading or unloading. The judgment specifically recognised that bringing heavy or bulky items to or from residential premises may require a vehicle to stop close to the building and that such activity is not automatically the same thing as "parking" in the ordinary sense.

That is why PCM's response is so feeble. Instead of engaging with Jopson and the factual question of genuine loading/unloading, they quote an industry-code definition saying that a stationary vehicle can be "deemed to be parked". That does not somehow erase the distinction identified by a Circuit Judge in an actual residential parking appeal.

So PCM have managed to dodge both central issues: they do not know who the driver was, yet pretend Elliott v Loake allows them simply to assume it was the keeper; and they have not properly addressed the evidence that the vehicle was present for the genuine loading of heavy furniture, despite Jopson being directly relevant to precisely that sort of residential loading activity.

That is a considerably better basis for the IAS appeal than simply arguing that "it was only ten minutes". You can now use the IAS. I would not pay the £60 simply because PCM rejected their own invoice. Remember, this is still a £100 private parking invoice with a 40% mugs discount, not a £60 fine.

If you are prepared to see it through rather than capitulate merely because PCM said no, I would submit an IAS appeal concentrating on the genuine loading/unloading, the resident's evidence, the signage/contractual terms and PCM's misuse of Elliott v Loake. An IAS rejection would not make the £100 legally owed; ultimately PCM would still have to prove its case if it chose to pursue it through court.

Before I draft the IAS appeal, though, please post photographs of the actual signs at the site, particularly the entrance sign and the "Permit Holders Only" terms sign. Those could materially affect how I would frame it.

Thanks b789! 

Yeah I thought that it was a shocking response on their part - particularly the insane 'we will assume you are the driver'. No idea how these cowboys think that will work. 

I cycled over to the location that they have listed on their ticket - please see attached images of the entrance and the signage. There were a lot of signs, so these were just the most prominent examples.







https://ibb.co/PSPYX6h
https://ibb.co/27HsWzS7
https://ibb.co/QFYQYGXX
https://ibb.co/rKWR5TJD


I have decided that I will appeal, as it seems as though I have a genuinely strong case, and their appeal rejection was so weak. 

Kind regards,