Advice on how to respond to PE Letter

ianh05

All - I need your advice on how best to respond to a letter received from PE.

Background:

Parked in a 2 hours free carpark last November ( 10th ), and overstayed by 46 minutes - retail park in Chelmsford

Received 1st PCN on the 17th November 2012

Received 2nd PCN on the 26th November 2012

Received 3rd PCN on the 28th December 2012

These were not acknowledged by me as they are not fines as such but merely an invoice I do not intend to pay.

LBA received on 1st July 2013 - I replied to this with a letter sent on the 3rd September as it does not comply with the PD

Then I received a LBCC on the 4th September - replied with another letter once again stating that it does not comply with PD and I contest that claim in full.

I received a template letter today ( copy below ) and would like to know how best to respond - many thanks!

Dear Sir / Madam,
Thank you for your correspondence in relation to the Parking Charge incurred at Riverside Retail Park car park.

We recently sent you a Letter Before County Court Claim, informing you that the above Parking Charge remains outstanding and has now been processed for further action. This
is because we had not received an appeal or payment from you within the time period stated on the first Parking Charge Notice. This notice informed you that all appeals should be put in writing and submitted to ParkingEye within 28 days of our initial correspondence.

Appealing at this stage would have also given you the chance to appeal your charge at POPLA (the Parking on Private Land Appeals Service) had your appeal to ParkingEye
been unsuccessful.

You were also notified that, if you were not the driver of the vehicle at the time of the Parking Event, you must provide ParkingEye with the name and postal address of the
correct driver, under Schedule 4 of the Protection of Freedoms Act 2012, within 28 days of the Date Given. Again this was not received. You consequently became responsible for
the outstanding amount detailed on the Parking Charge. We must therefore inform you that the amount, as outlined in the Letter Before Action remains outstanding from you, as the registered keeper.

In relation to your claim that our charges are disproportionate and therefore not a genuine pre-estimate of loss, we refer you to the below cases that indicate that the Parking
Charge amount is fair and reasonable. Furthermore we have calculated this sum as a genuine pre-estimate of loss as we incur significant costs in managing this car park to
ensure motorists comply with the stated terms and conditions and to follow up any breaches of these.

These costs include (but are not restricted to);

Erection and maintenance of the site signage
Installation, monitoring and maintenance of the Automatic Number Plate Recognition systems.
Employment of office-based administrative staff.
Membership and other fees required to manage the business effectively including those paid to the BPA, DVLA and ICO.
General costs including stationery, postage etc.
This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner (or the landowner's agent).

This sum was also clearly laid out on the signage at the site, and by remaining on site, we contend that the motorist has accepted all of the prevailing terms and conditions of that contract, including the charges for breach of contract.
We also note that a number of your queries are of a generic nature, a number of which we have seen before. Please see ParkingEye's answers to Frequently Asked Questions below.
FAQ's

How was a contract formed with the driver?

The Parking Charges issued for and on behalf of the landowner are levied on the basis of a contract with the motorist, set out via the signage at the site. The signage sets out the conditions under which a motorist is authorised to park, be that by payment of the appropriate paid parking tariff or by parking within a limited stay period or similar, and that a Parking Charge will be payable, if the conditions are not met. We ensure signage is ample, clear visible and in line with the BPA (British Parking Association) Code of Practice to ensure the motonst is bound by them when they enter and remain at a client site, so that all users of the site are obliged to follow these rules.

A number of cases, such as fine v London Borough of Waltham Forest [2000], prove particularly useful in respect to the creation of a contract with the driver. This is again reiterated in Section 7.1 of the Department of Transport's guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012. This provides strong evidence that if the signage and terms and conditions are sufficient it will be considered that the driver has entered into a contract to park on the land. Also see combined Parking Solutions v Dorrington (2012), Combined Parking Solutions v De Brunner (2007), Combined Parking Solutions v Blackburn (2007) and Combined Parking Solutions v Rees (2007).

Is the Parking Charge enforceable, is it a penalty?

ParkingEye does not issue or collect Penalty Charges, fines or Excess Charges which are only relevant to on- street or civil enforcement area and enforced by police/traffic wardens or council civil enforcement officers under the Traffic Management Act 2004 or the Road Traffic Acts. This legislation is not applicable on private land. We can confirm, however, that ParkingEye has the authority to issue and enforce Parking Charge Notices, for contractual breach.

Further evidence, that ParkingEye's Parking Charges cannot be viewed as penalties, can be found in Mayhook v National car Parks and Fuller [2012], Combined Parking Solutions v Mr Stephen James Thomas [20081, Combined Parking Solutions v De Brunner [2007] and, in a case tested at High Court and the Court of Appeal (ParkingEye v Somerfield Stores [2011]) and more recently in ParkingEye v Mr Kevin Shelley [2013] where it was found that ParkingEye's Parking Charges were not a penalty and were upheld in court. Furthermore the judge ruled that there was a commercial justification for them.

Is the Parking Charge fair and reasonable?

ParkingEye firmly believes that its Parking Charges are fair and reasonable ParkingEye's Parking Charges are in line with the British Parking Association guidelines, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound. See also Combined Parking Solutions v Dorrington (2012) and Combined Parking Solutions v Blackburn (2007).

How can the charge be enforceable if there is a reduction for early payment?

The offer to reduce the charge for the first 14 days is not indicative of the fact that it should be considered a penalty. As a matter of practicality there are many commercial situations where a discount is offered for the early settlement of a contractual claim. HHJ Hegarty QC in the case of ParkingEye v Somerlield Stores (2011) stated that this was the case.
Does ParkingEye have the authority to issue Parking Charges?

ParkingEye can confirm that it only operates on sites that are situated on private land, are not council owned and that ParkingEye has written authority to operate and issue Parking Charge Notices on all of its sites from the landowner.

It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by Parking Eye as a party to that contract.

I wasn't the driver, therefore I will not be paying the Parking Charge?
Paragraph 9(2)(b) of schedule 4 of the Protection of Freedoms Act 2012, states that the operator must inform the registered keeper that the driver of the motor vehicle is required to pay the parking charge in full. It also notes that, as the operator does not know the drivers name or current postal address, the registered keeper, if they were not the driver at the time, should inform the operator of the name and current postal address of the driver and pass the notice to them.

The Act also warns that if, after 29 days, the parking charge has not been paid in full and the operator does not know both the name and current address of the driver, they have the right to recover any unpaid part of the parking charge from the registered keeper. This warning is given under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to the operator complying with the applicable conditions under Schedule 4 of that Act (which ParkingEye firmly believe it has).

Is Vehicle Control Services v The Commissioners for her Maiesty's Revenue & Customs applicable?
The Court of Appeal reversed the decision in March 2013. In this case HM Revenue & Customs was claiming that VCS had to account for VAT as they had no interest in the land and as such were acting as agents. HM Revenue & Customs therefore argued that the retention of Parking Charge Notices was payment for services. However this was found not to be the case in this ruling.

This notwithstanding the VAT treatment of Parking Charge Notices remains the same, this was decided in the Tribunal Case, Bristol City Council LON/99/261 and is enshrined within HM Revenue & Customs VAT Brief 57. ParkingEye accounts for VAT to HM Revenue & Customs on all its Parking Charge Revenue. However the Parking Charge Notice itself remains outside the scope of VAT. Therefore any VAT ruling in respect to VCS does not currently apply to ParkingEye.

ParkingEye must accept or reiect my appeal within 35 days?
The clause to which this argument refers to has been amended and has been made accessible to the general public in the latest British Parking Association Code of Practice (June 2013).

ParkingEye is prepared to pursue this matter through the County Court if necessary. Should Court proceedings be issued, further costs incurred by ParkingEye will be added. These will include the cost of issuing the court claim and our solicitors fees. Please find details of how to make payment at the foot of this letter.

Yours faithfully,
ParkingEye Legal Dept.

spacey2012

Have you admitted been at the site on the date and time they claim ?

ianh05

No - all they have are the 2 photos of my car arriving and leaving

zzzLazyDaisy

First, thanks for posting up their current template letter - it is always good to know what the current incarnation looks like.

Second, please could you PM me the letter you sent to them in response to the LBCCC, and I'll draft you a reply to this latest load of garbage.

Daisy

ianh05

OK, update - received Court Papers from Northampton today which I want to defend in full - any advice welcome!

zzzLazyDaisy

Okay:

1 go to MCOL , acknowledge service and ask for time to file a defence. This extends time to 28 days from service of the court papers for lodging your defence with the court.

2 you then need to have a read around the forums for advice on defending. Coupon-mad has a standard post with useful links. I will see if I can find it, but if not I am sure she will be along shortly.

3 I strongly suggest that you forward your file of correspondence to SRA and make a formal complaint PE's refusal to comply with the Practice Direction. See post 6 on this thread for details of how to do this:

https://forums.moneysavingexpert.com/discussion/4790094

4 Also complain to the court about PE's conduct in refusing to comply with the PD as part of your defence. Here is something to get you started and I am sure the regulars will have comments to add:


In the Northampton County Court
[name of PPC] -v- [name of Defendant]
Case number xxxx

DEFENCE

The defendant denies the claimant's claim in full.

In particularly:

1 The claimant has no legal standing (locus standi) to pursue court action against the defendant

a) The claimant has neither claimed nor shown any proprietorial interest in the land in question
b) The claimant is a member of the British Parking Association (BPA) and must comply with the BPA Code of Practice which expressly provides, at paragraph 7, that if the claimant does not own the land it must have a written agreement with the landowner or its agent with specific content which includes authority from the landowner to pursue outstanding parking charges through the courts if necessary
c) It is the defendant's case that the claimant has no authority to act as agent on behalf of the landowner in pursuing these proceedings and the claimant is put to strict proof of the same

It is therefore the defendant's case that the claimant has no legal standing to bring these proceedings against the defendant and the defendant respectfully requests the court to list this matter for a Preliminary Hearing to consider the defendant's application to strike out this claim.


2 Further and/or in the alternative, the claimant has refused to comply with its obligations under the Practice Direction on Pre-action Conduct

a) Despite written requests from the defendant for the relevant information (copy correspondence attached) the claimant persistently and repeatedly failed to respond to the claimant's written requests for the information set out at Annex A para 2 of the Practice Direction on Pre-action Conduct which the claimant is required to provide (see copy correspondence attached)
b) It is the defendant's case that it would benefit the parties and relieve the court of an unnecessary burden if the parties were to complete the pre-action steps
c) In particularly it is the defendant's case that this dispute is capable of being resolved by reference to the Parking on Private Lands Appeal service (POPLA) which is the suitable form of ADR set up by the parking industry for this purpose

Accordingly the defendant respectfully invites the court to exercise its power under para 4 of the Practice Direction to apply sanctions for non-compliance against the claimant and in particularly to make the following orders:
i) a Order Staying these proceedings
ii)an Order requiring the claimant to provide the information requested by the defendant during the pre-action process; and
iii) an Order requiring the claimant to provide the defendant with a POPLA code in order that this matter might be referred to the Parking on Private Lands Appeals service for ADR

3 Further and in any event if the court finds against the defendant in respect of the applications listed at paragraphs 1 & 2 above, the defendant disputes the claimant's claim in full for the following reasons:

a) GPEOL
b) Signage

etc etc

---

You should assume that the judge knows nothing about POFA, genuine pre-estimate of loss, etc, and be prepared to spell these issues out. It is not necessary to go into detailed argument in the defence - which is only intended to give the court sufficient information to show the court that there is a case to be heard - but you will need to prepare a full written argument setting out your case for each point, before the hearing (if it gets that far).

ianh05

Many thanks, will have a look around the forums - will keep you updated!

Coupon-mad

you then need to have a read around the forums for advice on defending.
Coupon-mad has a standard post with useful links. I will see if I can find it,
but if not I am sure she will be along shortly.

Here you go:

http://forums.pepipoo.com/index.php?showtopic=82744&st=0&gopid=862298

Follow the links enough and you will find I have just added Daisy's response above from this very thread, into one of the helpful web of links!

ianh05

Thanks both - I'm going to send a letter to the court today - worth sending a copy to PE too do you think?

When I submit my defence on MCOL is it just bullet points or a copy of the letter as Daisy suggests?

Coupon-mad

I would write to PE as well.

I would tell them that you have defended their spurious claim and requested a stay of proceedings since they failed to follow the Practice Direction. Invite them to accept your previous (pre-court) response as an appeal which can then be put before POPLA if they should reject it. Point out that you already said 'these charges are disproportionate and therefore not a genuine pre-estimate of loss' which is a valid appeal point and they have rejected it and instead of offering POPLA they have ridden roughshod over the Practice Direction and proceeded to Court unfairly, unnecessarily and without justification.

And as for the letter suggested by Daisy, send it to the Court exactly as shown but with your defence points added to point 3 in bullet-point form. Remember that not only are most judges NOT yet familiar with Schedule 4 of POFA 2012 (so non-compliance with POFA or the BPA CoP will need spelling out) but also acronyms like 'GPEOL' and 'PPC' are only forum shorthand!

ianh05

Thanks Coupon-Mad - my intended bullet points under Section 3 would be:


1. Non compliance with the Practice Direction.

2. No evidence that they have authority from the landowner to pursue outstanding parking charges.

3. No genuine reason of how the claim amount has been calculated.

4. The contract is unfair as defined by the Unfair Contract Terms Act 1977.

Any comments?