Smart Parking/ Asda

Coupon-mad

James_R wrote: »

I can't return to the store as I live about 300 miles away.

Phone that Asda branch then (phone number on the receipt or online) and ask to speak to the Store Manager or have him/her call you back about a complaint. Have the receipt in front of you as well as the fake PCN and require the Manager to get it cancelled. Don't apologise, if you didn't know the rules were different then they have failed to inform you. If you didn't realise you 'had to' get a P&D ticket and then a refund (and to spend a certain amount) then the non-prominent signage is at fault, not you. Do not allow them to spin the lie that they don't own the car park because Smart Parking are known to be Asda's own agents...

Or send a letter to Asda Executive Relations at H/O (as you will find examples of people doing in the link I gave). Not everyone could go in person but they still complained! Even if Asda knock you back you have lost nothing and they will have recorded yet another complaint against the scumbags (= a good thing).

James_R wrote: »

I am also not the registered keeper as it would have cost too much in insurance to it change over. Though I live at same address. So maybe the following advice would not work unless I wrote it as if I am the registered keeper?

"In your appeal, do not talk about what happened, nor do you imply who was driving. Write it in the third person about 'the driver' and make sure there are solid appeal points in there such as:

'the driver was unaware of the apparent 2 hour limit, so, as I am merely the registered keeper of this vehicle who is not local to that site, I conclude that your signage must have been wholly inadequate. I also would say that this charge is a disproportionate penalty, which is unenforceable in law. If you reject my appeal I want to know whether the charge is supposed to be for breach of contract or trespass and how exactly is the amount arrived at? I will also require a POPLA code of course."

You simply write it in the name of the registered keeper (but composed by you because you are here on the forum!) but send it only when the keeper gets the first postal Notice. That's between 29 and 56 days after the incident so you have ages to complain to Asda first and to read up on appeals and POPLA on lots of threads here. It will be early October by the time you first appeal this (unless Asda cancel it for you earlier) and then POPLA will be a certain type of appeal to work on after that, with our help (DO NOT let the registered keeper write their own version of a normal 'appeal' saying the driver 'didn't know about the rules' as that won't win at POPLA stage). There is no quick-fix, you really need to read some threads about POPLA before then!

James_R wrote: »

BTW, why is it best to appeal after the first notice?

What Umkomaas said...

Also Smart Parking are known to send a non-compliant letter which you can expose in your POPLA appeal stage, hence why you want that letter! Check it against this checklist when it arrives, I am not even sure they call it a Notice to Keeper (which they should) and they certainly don't fully comply:

http://www.parkingcowboys.co.uk/keeper-liability/

James_R wrote: »

Thank you a lot for the help by the way, I'm not trying to be obtuse, I just don't want to pay £70 if I can get away with 40, not that I want 40 either

It's not 'getting away with' anything because this isn't a fine and you will pay nothing.

It's a scam and the way to beat them used to be to simply ignore them (last year) but now we have POPLA we can beat these scammers at their own expense. Or try damn hard to get it cancelled earlier by complaining about the unclear signs and just by leaning on the Store Manager in a phone call, saying you are 'normally such a regular Asda shopper at home' and were horrified to be caught out like this just because you were in a different store and tired from driving...seems very unfair to a genuine Asda regular customer who simply isn't local and the signs weren't that noticeable unless you are looking for them (and who goes into a Supermarket looking for signs; you were simply on the lookout for petrol and needed a loo break and a snack)...etc.

James_R

Hi, I found a template for the soft appeal and it is as follows:

I dispute the parking charge for the reasons set out below. Please note that although I dispute the whole basis of the parking charge, my main concern is its disproportionate and punitive level.

1. No contract
There was no contract between the driver and Smart Parking LTD. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

2. Trespass
If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.

3. Punitive/unfair/unreasonable charge

Even if there was a contract (which is denied), the following matters are relevant:

3(a). Punitive
The parking charge you are imposing is punitive and therefore void (i.e. unenforceable). The £70 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.

3(b). Unfair
The £70 parking charge you are imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:
‘A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer’

And 5(2), which states:

‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’

3(c). Unreasonable

The £70 parking charge you are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

Further information I require you to provide and take notice of:
Please note specifically that this letter is not an appeal however, it is a challenge to the issue of the Notice to Driver as set out in the BPA AOS Code of Practice B.22. I should be grateful for answers to all questions raised. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.

4(a). Cause of action.
Please make this clear. If it is your claim that the driver entered into a contract, please send me a complete version of the terms and conditions of that contract to which you say the driver agreed to.

4(b). Further to the above please explain fully on which of the following grounds your claim is based:

(i) Damages for trespass
(ii) Damages for breach of contract
(iii) A contractual sum

5. Your loss.
If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages, please give me a full breakdown of the actual loss you say was suffered by your business or the landowner/landholder.
6. Appeals procedure.
I require a copy of any appeal procedure you follow, along with details of what factors you take into account; who is the judge or arbitrator and whether they are independent; whether you require oral or written submissions; whether it is governed by the Arbitration Act 1996 and any other relevant factors. In addition, please give me disclosure of any arguments you would put forward on this matter in any subsequent appeal process so that either the registered keeper or the driver might consider his or her response to any existing or new issues which are raised.

7. Your status.
Your Notice to Driver simply mentions Smart Parking LTD. Please tell me who the actual creditor is making this £70 parking charge demand. I need to know exactly who is making the claim and in what capacity.

8. Ownership of premises.
Please tell me who owns the car park as I wish to send them a copy of this letter.

9. Contract to operate.
Please provide me with a copy of the contract between your company and the landowner/landholder.

10. Involvement of landowner/landholder.
Please explain any involvement, if at all, of the landowner/landholder with the management of parking at this site and specifically with regard to the issue and enforcement of your Notices to Driver.

11. Photographs- handling.
Your notice refers to ‘photographic evidence’. Please send me a copy of your procedures for handling and processing that evidence and the relevant audit trail. Furthermore, under section 7 of the Data Protection Act 1998 please send me a copy of all such photographs along with a copy of all other data you hold relating to me. As this would be required to be disclosed in any event as part of your evidence bundle in the small claims process, I do not expect to pay for the release of my personal data which you hold.

12. Signage.
If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.

13. Legal representation.
Please provide me with the name and address of your solicitors, if any, in order that I may copy them into this correspondence.
14. To avoid doubt, please do not do any of the following:
(i) Send any further correspondence or documents to me or try to communicate with me in any way except to address in writing the specific points I have raised in this letter.
(ii) Send me any document purporting to be from the county court unless it is a valid claim form duly issued.
(iii) Write to me threatening to send bailiffs to my address without first issuing a court claim form and obtaining judgment.
(iv) Send me any standard letters from your company or debt collectors.

15. If you wish to make a claim you may do so online. My address for service is set out at the top of this letter. If you do decide to issue proceedings, please note that:

(i) I reserve the right to add further arguments to the defence
(ii) I or my representative will be happy to attend any court mediation that might be offered.

16. I look forward to receiving your acknowledgement within 14 days and a comprehensive reply within 35 days (in accordance with the BPA AOS Code of Practice B.22.8). I will then be able to make an informed decision as to how I shall respond to your Notice to Driver.

17. If you reject this challenge or fail to address the issues that have been raised then, in accordance with the BPA AOS Code of Practice 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer the matter for their decision.

18. If you fail to follow any of the procedures outlined in the BPA AOS Code of Practice or your legal requirements under the Protection of Freedoms Act, or the requirements of the Practice Direction on Pre-Action Conduct then I will make a formal complaint to the DVLA Data Sharing Policy Group, D16.
Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.

Yours,

Linda Rigby


What do you think? any amendments? You think I should fit the fact I visited the Asda and have receipts anywhere?

Thanks

Hovite_2

Umkomaas wrote: »

Because the Notice to Keeper (which should arrive with the RK no fewer than 28 days after the windscreen ticket and no later than the 28 days after the first 28 days) will be in pursuit of the RK (not the driver) under the Protection of Freedoms Act 2012.

This gives the PPC more hurdles to get over, putting the RK in a stronger position than the driver. So at this stage no contact with the PPC and give no indication of who or who might not have been the driver on the day.

Get back when the RK gets the NtK - but make sure they don't get spooked into paying - as you/they need pay nothing!

Meantime get plenty of reading in, initially about 'soft' appeals, then POPLA appeals.

And it costs the scammers money to get the RK details and more money to send the NtK.

nigelbb

18 bullet points for a soft appeal? Goodness! What is you strong appeal going to be like?:) Joking aside that will do fine. Personally I don't think that a 'soft' appeal is the correct approach & am in favour of always submitting a strong challenge immediately.

Hovite_2

nigelbb wrote: »

18 bullet points for a soft appeal? Goodness! What is you strong appeal going to be like?:) Joking aside that will do fine. Personally I don't think that a 'soft' appeal is the correct approach & am in favour of always submitting a strong challenge immediately.

Agreed.

OP - remove your name from the bottom of your post. PPCs are sneaky little wotsits !

Guys_Dad

If you want to play ping-pong with them, then use that template appeal. They will probably say not valid reasons and then not send POPLA code.

Do you think they will cancel your appeal on the soft appeal or any other one, given your circumstances? No.

So you send them an appeal that will get you the POPLA code.

The driver did not see any signs that explained the method for getting free parking displayed prominently on entry. If you agree, cancel the charge. If you don't send me a POPLA Code.

That's all you need. Save the rest for POPLA or do you want to publish your game plan now?

Coupon-mad

You do not need to appeal yet, not until around OCTOBER so you are jumping the gun!

PLEASE DO NOT BELIEVE THE 'TICKET' THAT THE DRIVER HAS TO APPEAL - THE DRIVER DOES NOT! WAIT FOR THE NOTICE TO KEEPER.

You need to complain effectively and get it cancelled, that is the only thing to do before the Notice to Keeper arrives (you could have this cancelled by the weekend if you are proactive and assertive about it!).

And you need to URGENTLY remove your name from that draft letter.

James_R

"Because the Notice to Keeper (which should arrive with the RK no fewer than 28 days after the windscreen ticket and no later than the 28 days after the first 28 days) will be in pursuit of the RK (not the driver) under the Protection of Freedoms Act 2012."

I got the ticket on the 20th of August but now its the 16th of october and no contact yet...does that mean its invalid as too late (after 56 days)?

Guys_Dad

Careful as this lot may claim they have sent it and the Royal Mail have lost it. You can either wait for the NTK and it will be timed out, but risk them saying it was sent or tell them they are timed out now or even submit an appeal based on ticket

Either has its risks and upsides. Depends on whether you want to go to POPLA for sure or risk them saying you didn't appeal after receiving the NTK they never sent.

James_R

Well i sent an appeal to them immediately on thier website, but i got no response via email or mail... so I am waiting for any reply really.