NPS letter before action

Loadsofchildren123 · 10 May 2017 at 3:08PM

If you have admitted the driver, the POFA point falls away.

So the text didn't say "you've paid £x for x minutes parking at X carpark" - it just confirmed the payment, but not the carpark?

In which case, yes it's your mistake.

There have been cases that have been won where the driver put the wrong car number plate into the P&D machine, or the machine malfunctioned and didn't print out the whole reg. Or where the driver has paid using the phone app, but didn't realise the payment hadn't gone through and then paid later when they realised they hadn't received email confirmation. In those cases the drivers relied on having used reasonable endeavours to comply with the terms of the contract, and also that it could not be said that it was their (human) error rather than a rebellious/malfunctioning machine.

I think you could rely on these arguments, albeit applying them to a telephone payment system rather than to the P&D machine. You don't KNOW it was your error and not the computer's. Against that, maybe they'd say that the computer never makes an error, whereas it was much easier to demonstrate that the P&D machine regularly malfunctioned.

Coupon-Mad will hopefully read this and she will know the cases concerning "reasonable endeavours" and may also know the threads I'm referring to. Try searching the forums of "malfunctioning machine" or "I paid by telephone" to see what other threads you can find.

Coupon-Mad's post #3 is spot on. Just keep saying you've paid and send a copy of your bank statement and say that the mistake is clearly at their/Whoosh's end and it's nothing to do with you, you paid.

Have you searched Parking Prankster's blog as well?

busby3000 · 10 May 2017 at 3:38PM

Thanks for replying Loadsofchildren123. So admitting the driver means I can't use non adherance to POFA?

How about the fact there was only one ticket on the car, not 2? And their photos do not show a clear ticket on the windscreen for one of the days (they claim 2 tickets issued) and they took 74 days to send the NTK?

Yes it was our mistake. The Whoosh email print out clearly states car reg, date, time, car park, ID etc. However we did use best endeavours. We paid in good faith, using the mobile to pay when the machine wasn't working in adverse weather conditions, we sent copies of bank statement showing payment to Whoosh and mobile phone bill showing call made, and tried to contact Whoosh. At the end of the day, NPS did not receive the payment - it went elsewhere. I would also argue that they could have contacted Whoosh earlier to resolve this.

Also, it was 6.30pm in November. I'm not sure how good the lighting would have been

I have done a lot of searching for anything similar, but nothing so far. I have also come across Parking Prankster's blog. I will try further

Umkomaas · 10 May 2017 at 3:45PM

Seems to me that unless you can get Whoosh (never heard of them before!) to try to sort this out on your behalf, there's little else you can do. You're just going to have to await the next move from NPS.

Have you asked the landowner to intervene?

busby3000 · 10 May 2017 at 4:04PM

I think Whoosh would just say we paid for the wrong car park. And, according to another thread I have just found, Jomast, the landowner of Scottish Life Pay & Display, won't get involved.

What I would really like to do is just pay them the original £18.20, but don't want to proceed without asking on here first!

Umkomaas · 10 May 2017 at 4:07PM

What I would really like to do is just pay them the original £18.20, but don't want to proceed without asking on here first!

I can tell you for sure that they will not accept that. Not when there's the possibility of screwing £200 out of you.

busby3000 · 10 May 2017 at 4:10PM

Well I'd pay it and leave it to them if they want to take it further, but would like confirmation that this is a good idea, and how, potentially, a judge would view it (IF it got that far!)

Umkomaas · 10 May 2017 at 4:24PM

busby3000 wrote: »

Well I'd pay it and leave it to them if they want to take it further, but would like confirmation that this is a good idea, and how, potentially, a judge would view it (IF it got that far!)

Well do as you think fit. I've given my advice.

Who knows how a judge would view it - it would depend on how good a claim they made and how good a defence you put up. After that, it is a total lottery.

Do a search on here for 'Small claims lottery' 'DJ (or Judge) Bingo'.

Umkomaas · 10 May 2017 at 8:04PM

If you're going to pay the actual cost of parking, I'd be marking the letter offering payment as 'Without Prejudice'. Offering to pay effectively confirms your 'guilt'. Marking your letter as 'WP' means they cannot show this to a judge should it ever get to court.

And your covering letter should say 'this is in full and final settlement'. It's been known for people to pay the cost of parking without stating 'in full and final settlement', with the parking company cashing the cheque, then still coming after them for the full amount of the PCN (in your case £200). You're not dealing with an ethical business here - far from it!

Swim with sharks, get eaten by sharks!

Coupon-mad · 10 May 2017 at 8:17PM

busby3000 wrote: »

Well I'd pay it and leave it to them if they want to take it further, but would like confirmation that this is a good idea, and how, potentially, a judge would view it (IF it got that far!)

Just ignore them, come back if they try court.

Loadsofchildren123 · 11 May 2017 at 3:24PM

So you did have a confirmation email that said you'd paid for a different car park?

Unless you are in Skipton, which has been forever marred for PPCs by Lamilad, the judge usually starts from the position that the PPC is an honest company just going about its business. You then have to show that they have wrongly ticketed you, often with a judge who starts of leaning towards their case.

Your case is you had paid. But you accept you paid the wrong company - you made an honest mistake which you didn't notice at the time and the payment was therefore paid by the 3rd party collection agency (Whoosh) to a different car park owner. You were notified of the mistake by the text and an email as well, but you didn't read either properly, or at all, at the time.

The mistake only came to light when you got back to the car to find the ticket.

So the PPC is so far pretty blameless. Apart from the fact that their rubbish machine wasn't working and their alternative payment method was difficult to use and prone to error (this is your real chance of success here I think)

Whoosh should obviously get your money back from the other people and let this PPC have it (some reference is made to the possibility of doing that in earlier posts). Common sense dictates that if that is done, the PPC has suffered no loss and they should accept your honest mistake and just take the original payment.

However, courts are not about common sense, or morals. They apply the law. There is a chance you'd get through on the reasonable endeavours argument coupled with the broken machine/rubbish Whoosh process prone to errors (but they would say the error should have been known to you because you were sent not only a text but also an email).

I am troubled by the text and email and that, reasonably, you should have realised your mistake. Yes you have things like bad lighting and weather to back up your reasonable endeavours argument so it's not hopeless. But there's a chance you might not succeed.

Just being realistic.

We were discussing a few posts back the fact that if you are known to be the driver, POFA is irrelevant. You asked this:

So admitting the driver means I can't use non adherance to POFA?
The answer to that is you can't, because the whole point of POFA is to make keepers liable. They don't need to do that if the driver is identified.

How about the fact there was only one ticket on the car, not 2? And their photos do not show a clear ticket on the windscreen for one of the days (they claim 2 tickets issued) and they took 74 days to send the NTK?

Sorry, I'm not following. Were there 2 mistakes with Whoosh and 2 parking events? 2 different reasons why you were ticketed?

If you were not given a windscreen ticket, then POFA DOES apply, at least initially - paragraph 9. You have to be sent a NtK within 14 days. They are clearly out of time. HOWEVER, I think that if you then identify the driver, which you have done, they can then just sue you as driver and never mind POFA and so you've lost that argument. I do not think that if they failed to comply with the para 9 time limit for sending out the NtK then they have lost the ability to sue you as driver. Had you not outed yourself as driver, you would be able to argue POFA hadn't been complied with but it's too late now unfortunately.

NPS letter before action

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free