PE letter before action

bazster

Stroma wrote: »

Nope in England and Wales the keeper can be liable unless they discharge that by giving a serviceable name and address. And how do you know he (or his company) hasn't received the NtK in time? The OP hasn't said one way or the other.

I don't care whether the company received an NtK in time. How many more times? The company is not the keeper. The NtK was sent to the wrong "person".

Stroma

And you can't ignore the CoP just because it doesn't suit your purpose. The parking companies should be abiding by that, if this went to a court it could be used by both parties, and its very persuasive to judges

(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—

(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and

(ii)the creditor does not know both the name of the driver and a current address for service for the driver,

the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Stroma

bazster wrote: »

I don't care whether the company received an NtK in time. How many more times? The company is not the keeper. The NtK was sent to the wrong "person".

How can it be sent to the wrong person / company ? They are the RK and its the only one that the dvla has on file. It's up to the RK on what they do, if they don't discharge liability they if it goes to court could be liable.

Guys_Dad

bazster wrote: »

I don't care whether the company received an NtK in time. How many more times? The company is not the keeper. The NtK was sent to the wrong "person".

The point is that every vehicle has to have a registered keeper. That is the one that the DVLA gives to the PPC - it's the only one they have.

Now whoever actually keeps/drives the vehicle is not germane to the situation. And whoever owns the company becomes liable to reply, pay or argue the case if they don't give up the driver's name and address.

At least, that's the only common sense way you can interpret the legislation

nigelbb

Guys_Dad wrote: »

The point is that every vehicle has to have a registered keeper. That is the one that the DVLA gives to the PPC - it's the only one they have.

Now whoever actually keeps/drives the vehicle is not germane to the situation. And whoever owns the company becomes liable to reply, pay or argue the case if they don't give up the driver's name and address.

At least, that's the only common sense way you can interpret the legislation

The legislation needs amendment as it's not been properly thought through.

A specific case is made for a rental car where the RK (hire company) has to submit a signed agreement from the hirer acknowledging their responsibility for unpaid parking charges plus a copy of the rental agreement plus a statement from the hire company that at the material time the vehicle was hired to a named person under a hire agreement.

Clearly there should be some similar treatment for lease cars & company cars where the registered keeper (who pays the road tax) is not the de facto keeper. However as it stands what happens is that the lease company will name the lessee even though they cannot know who the driver was. Whereas what should happen is that they respond "Despite being the RK the keeper as defined under POFA is actually so & so. Please contact them with regard to unpaid parking charges"

There are other deficiencies in the legislation e.g. what happens if the person named as the driver denies that they were? The keeper has discharged their responsibility & cannot be pursued.

Guys_Dad

nigelbb wrote: »

The legislation needs amendment as it's not been properly thought through.

A specific case is made for a rental car where the RK (hire company) has to submit a signed agreement from the hirer acknowledging their responsibility for unpaid parking charges plus a copy of the rental agreement plus a statement from the hire company that at the material time the vehicle was hired to a named person under a hire agreement.

Clearly there should be some similar treatment for lease cars & company cars where the registered keeper (who pays the road tax) is not the de facto keeper. However as it stands what happens is that the lease company will name the lessee even though they cannot know who the driver was. Whereas what should happen is that they respond "Despite being the RK the keeper as defined under POFA is actually so & so. Please contact them with regard to unpaid parking charges"

There are other deficiencies in the legislation e.g. what happens if the person named as the driver denies that they were? The keeper has discharged their responsibility & cannot be pursued.

The big difference, of course, is that the hirer has a business and that is hiring cars. They have a contract with the hirer and that passes keeper responsibility to said hirer as contracted keeper.

There is no equivalent 3rd party contract for company vehicle drivers that have the same distancing built in as leasing company contracts.

Stroma

The legislation is not going to be amended anytime soon, if ever! So we are stuck with it. The point is though that the RK can name someone as the driver , or if a company logically they could do the same.

As for the denial of being the driver I think the parking company would have to drop it as pofa 2012 doesn't cover it, and going back to the RK would open a can of worms. I wonder who will be the first to try it, an ex clamper would be my guess, so Trev I think

nigelbb

Guys_Dad wrote: »

The big difference, of course, is that the hirer has a business and that is hiring cars. They have a contract with the hirer and that passes keeper responsibility to said hirer as contracted keeper.

There is no equivalent 3rd party contract for company vehicle drivers that have the same distancing built in as leasing company contracts.

There are plenty of people leasing cars personally that are analogous to a a hire car in that they don't own the vehicle & are the de facto keeper while the owner is the RK whether they are a hire or lease company. POFA should have made provision for leased cars in the same way that it does for hire cars but as the legislation is defective both the PPCs & the leasing companies have to deal with the situation as it is. POFA says

“keeper” means the person by whom the vehicle is kept
at the time the vehicle was parked, which in the case of a
registered vehicle is to be presumed, unless the contrary
is proved, to be the registered keeper;

It's very easy for a leasing company or even a company car fleet administrator to prove that they are not the keeper & to name the actual keeper. However because of the badly drafted legislation this does make it difficult for PPCs using ANPR to deliver a compliant NTK within the required timescale but that's just their bad luck.

The only real reason that a car has a registered keeper is so that the DVLA have a name of someone who is responsible for paying the road tax (or SORNing the vehicle). The DVLA have no need to know who is the day to day keeper of the vehicle or even who owns it. As I recall on the V5 it says something to the effect that the RK is not necessarily the owner. All they need is a name to chase for taxing the car.

Guys_Dad

nigelbb wrote: »

However because of the badly drafted legislation this does make it difficult for PPCs using ANPR to deliver a compliant NTK within the required timescale but that's just their bad luck.

I think I have missed the point you are making, sorry. Are you saying that the PPC has to get the ANPR NTK into the hands of the hirer (keeper) or company driver (keeper) within the 14 days and that getting it into the hands of the DVLA registered name isn't sufficient?

Specifically, in this case, served on and into the hands of the OP within the 14 days?

nigelbb

Guys_Dad wrote: »

I think I have missed the point you are making, sorry. Are you saying that the PPC has to get the ANPR NTK into the hands of the hirer (keeper) or company driver (keeper) within the 14 days and that getting it into the hands of the DVLA registered name isn't sufficient?

Specifically, in this case, served on and into the hands of the OP within the 14 days?

Correct. The case of he hirer is covered by the legislation. That of the lease car is not & it is not sufficient to deliver the NTK to the RK within 14 days it has to be in the hands of the keeper. The RK cannot know the name of the driver. It's a loophole that should have been foreseen.