Help please re: next step of the battle!

Ellie007

Dear all,

I've previously posted re: 'PCN' from Parking Collection Services on behalf of Wing Parking.

Ticket given on the day for parking on private land; subsequent notice to owner sent outside the 56 day period. I then appealed on the basis that it did not comply with POFA 2012 and requested cancellation or POPLA code.

I now have an email back requesting 'You state that the letter sent to you quotes the POFA 2012. From reviewing our records this does not appear to be the case. Please provide a copy of our letter by return detailing where we have stated that this PCN falls under POFA 2012'.

They have put the account on hold for 14 days. I now have received (within these 14 days) a 'notice of intended litigation' from DRPL.

Now, because PCS state that they operate in accordance with the BPA COP, and the BPA COP actually includes Schedule 4 of POFA 2012, surely it is enough to write back and explain that as such, paragraph 8 of schedule 4 of POFA 2012 applies? Or am I missing something massive here? First time (not even my ticket but hapless husband's...!)

Many thanks for any help you can offer!

The_Slithy_Tove

Do nothing further until 35 days after your initial appeal. Then write to them saying that, apart from all the other breaches of the BPA Code of Practice, as they have not sent you information on appealing to POPLA in time, your appeal is deemed accepted, and you expect to hear no more from them or any of their agents (e.g. debt collectors). End of.

hoohoo

The DVLA is currently investigating cases like this and is likely to get quite shirty with the company involved...as long as they are pretending POFA 2012 applies. Read their original NtK carefully, and if it implies keeper liability then write or email Mike Butler

mike.butler@dvla.gsi.gov.uk
Data Sharing Manager
Operational Support & Development Directorate
C1/East
DVLA
Swansea
SA99 1DY

Dear Mr Butler,

I understand that you are currently investigating cases where private parking companies (PPC) knowingly serve a Notice to Keeper (NtK) outside the time limits of POFA 2012, and then continue to pursue the registered keeper as if the POFA 2012 keeper liability still applies. I enclose a copy of such a NtK, served outside the time limits [explain why with your own details]. As you can see, the NtK clearly implies that the registered keeper is liable and also mentions POFA 2012. I also enclose a rejection letter from the PPC clearly stating that they believe POFA 2012 still applies.

Please investigate this on my behalf, confirm whether you agree with my reasoning that the POFA 2012 keeper liability does not apply because the NtK was not served in the correct timescale, and keep me informed as to the eventual outcome of your investigation.

It's not your place to teach the PPC their job. If they think POFA 2012 applies, let the DVLA and POPLA educate them.

As Stroma says, wait 35 after your initial appeal, and then write saying you have nothing further to add, so please cancel the charge or send a POPLA code. You might also mention that you will be adding the fact that they are out of time to reply to your POPLA appeal. You might even copy in Mike Butler's confirmation to you that they are abusing the process. Or you might just decide to cost them £27 at POPLA.

If they are not implying keeper liability, wait 35 days, get your POPLA code, then appeal on the basis that keeper liability does not exist and they have shown no proof who the driver was.

Ellie007

Thank you hoohoo - definitely worth looking into.

The notice to owner does not however refer to POFA 2012, but does state that they operate in accordance with BPA code of practice, which in turn does refer to POFA 2012. The PPC is arguing that they DON'T state POFA 2012, which I think they do by default as they state that they operate in accordance with BPA CoP.

Does that make any sense?

nigelbb

The PPCs try to have it both ways using POFA or not as it suits them. If they fail to abide by the POFA timescales then they claim to be using pre-POFA rules. However in my opinion as members of the BPA AOS scheme that is predicated on using POFA rules to get registered keeper details from the DVLA that they are always obliged to follow POFA rules & if they are outside those timescales then their pursuit of the registered keeper fails. Under pre-POFA rules they can't pursue the registered keeper anyway only the driver whose identity they don't know unless you tell them.

hoohoo

In that case the PPC is behaving correctly. See this post on pepipoo.

http://forums.pepipoo.com/lofiversion/index.php/t79059.html

The DVLA cannot currently keep up with demand and often returns keeper details far too late for the POFA 2012 requirements. In these cases, the DVLA have instructed the PPCS that it is still okay to pursue parking charges, but there must be absolutely no implication that POFA 2012 keeper liability is being pursued, so they can only pursue the driver.

Your strategy is therefore to wait the 35 days, ask for your POPLA code, and then appeal to POPLA on the basis that POFA 2012 does not apply and the PPC have provided no proof who the driver was.

Stroma

Yes but to use popla they must be using pofa 2012 don't they ?

nigelbb

Stroma wrote: »

Yes but to use popla they must be using pofa 2012 don't they ?

Not so. When clamping was made illegal as a sop to the clampers Schedule 4 of POFA 2012 brought in limited circumstances the concept of keeper liability for unpaid parking charges. As this flew in the face of hundreds of years of contract law as a form of balance the BPA were forced to set up the [STRIKE]puppet[/STRIKE] appeals body POPLA. POPLA's remit is to consider appeals against parking charges from BPA AOS members whether they were invoked under POFA or not.

Coupon-mad

Ellie, this is important. If Wing are not pursuing under POFA then they have to know who the driver was in order to 'pursue' the right person.

If you wrote your letter in the third person as the registered keeper only, without naming the driver, then you can simply respond and say:

'If you are not claiming registered keeper liability under the POF Act after all (the letter from PCS did not make it clear) then you must cease and desist writing to me as I am the registered keeper. You must now take the matter up with the driver and I will not enter into any further correspondence nor discuss who may or may not have been driving on that occasion, since I do not have to help you in this regard.

Any further contact by you, your agents or your car park owner/occupier 'client' will be harassment and also a breach of the Data Protection Act.

In addition, take formal note and action: I now require you and PCS to immediately remove my data from all formats of storage, since you no longer have 'reasonable cause' nor lawful excuse to keep or share any data of a registered keeper in this instance. If I hear from you or your agents again about this matter I will complain to the Information Commissioner and also the DVLA Data Sharing & Protection Manager, and also the BPA, since you have been informed that I am not liable and admitted yourselves that you are not claiming registered keeper liability.'

Ellie007

Thanks couponmad - yes the response was third person only. I will do exactly as you advise.

Many thanks! :beer:

Ellie007

Ok - update for you.

I responded as per couponmad's wording and have now received this:

Within the correspondence it states that you were not the driver at the time of the contravention.

As such, because we are members of the British Parking Association (BPA), I am required to invite you to declare that you either were the driver of the vehicle at the time the charge was issued or to disclose the identity of the driver at that time.

I feel obligated to mention that, under the Pre-Action Protocol of the Civil Procedural Rules, court action must only be viewed as a last resort. I am making all reasonable attempts to avoid this outcome.

It is worth noting that, if this matter does proceed to court, it may be requested that a Norwich Pharmacal Order [Norwich Pharmacal Co. v Customs and Excise Commissioners [1974]] be issued by the Court so that the correct driver details would have to be provided.

Within the correspondence harassment has also been referred to and therefore I feel obliged to point out that under S1(3)(c) of The Harassment Act 1997, a course of conduct that someone alleges to be harassment will not be deemed so if the person who pursued it shows that in the particular circumstances the pursuit of the course of conduct was reasonable.
Under the circumstances our course of action has been entirely reasonable. Our company has legitimately pursued recompense for a breach of the terms and conditions attached to our client’s site.
Furthermore, upon your own apparent denial, I am now reasonably asking for the details of the driver of the vehicle on the date in question.

In order to resolve this matter as soon as possible, I invite you to either pay the outstanding charge via the methods outlined below or to disclose the identity of the driver.

Please note that while any further correspondence will of course be noted and filed, I cannot guarantee a response will be provided unless one of the above is forthcoming or I receive additional evidence that would affect the outcome of the matter.

As a gesture of goodwill, I will place the account of £120.00 on hold for 14 days from the date of this correspondence to allow time for payment to be made or for our company to be provided with the driver details; however, if I am not furnished with one of the above within the stipulated timeframe, the matter will be passed on to a debt recovery agency for collection; with further costs incurred as a result.



Please help! I don't really know how to respond as they seem to be picking and choosing which bits of the BPA they abide by.

Many thanks,

El xx