Registered keeper but not driving receiving PNC

razorbill

Hello,
I received a PNC as registered keeper of vehicle from UKCPS (parked in England) for exceeding 2 hour parking limit by several minutes, no ticket on car but apparently a warden or ANPR camera system observed the vehicle and photographed it (nothing was sent of course). I read through posts on this site and others.

The first correspondence received was a Notice to Keeper/Driver/Hirer, demanding £100 reduced to £60 if paid within 14 days. I sent off response to appeal without informing who driver was at the time.

Received rejection of appeal saying I was correctly issued a parking charge, and that I could supply further information to them or also appeal through POPLA, details would be sent at the appropriate time.

I sent a further appeal to them within time stipulated and received a third letter stating it was my second appeal (not rejecting it) but merely stating I could now appeal to POPLA, with a link to the popla.org website and a 10 digit reference number.

I would appreciate advice on what to do now, I'd like to cut it off at the bud. I have no intention of paying these people anything. Thanks in advance.

Guys_Dad

Edited thanks to Stroma's next post

As long as you get into the POPLA system, you can use the genuine pre-estimate of loss point as well as no valid contract and "prove that the car park in question had planning permission for a time-limited parking regime with charges to motorists who transgress"

Stroma

Guy he says he has a popla code, and this is not parking eye at all!

OP I suggest you read the sticky thread with the popla decisions, start from the latest post and go back a few pages, you will see what is needed, then come back here with a draft appeal that you come up with. We will help you ensure its a winning one.

razorbill

Thanks Stroma I'll get on and look and do as you suggest.

razorbill

How does this look?

1. UKCPS Ltd has no proprietary interest in the land and therefore has no authority to issue parking charge notices. If it were otherwise, proof of ownership of the land or any contract from the land owner providing such authority is required.

2. The parking charge exceeds the appropriate amount, i.e. the amount of the charge is disproportionate to the loss incurred by the Operator, and is punitive, contravening the Unfair Contract Terms Act 1997.

3. UKCPS Ltd has failed to adequately identify the creditor to whom the parking charge is due as required by the Protection of Freedoms Act.

4. UKCPS Ltd did not specify the reasonable period permitted for the driver to leave the land after the end of the contract prior to taking enforcement action.

Guys_Dad

Good bullet points but need expanding.

Here is just 1 example https://forums.moneysavingexpert.com/discussion/4717353 post #70

There are many others, but do major on and expand the genuine pre-estimate of loss killer point.

razorbill

Adding more details:

On 99 XXX 2013 I was the registered keeper of vehicle registration number *********. As the registered keeper of this vehicle I dispute and deny the charge for the reasons set out below:

1 Genuine Loss

In the unlikely event that UKCPS Ltd do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would request that UKCPS Ltd show a breakdown of the actual pre-estimate loss in connection with this alleged contravention. The amount claimed must not include the costs of running their business. It should only be the costs they incurred solely due to this contravention. This does not include any costs that they would have had to carry if they had been elsewhere or any operational day to day running costs (for example, by erecting signage and employing administration staff, wages, uniform, rents).

At the car park in question there was no parking charge levied, and the car park is “free”. On the date of the claimed loss it was only at about 10% capacity and there was no physical damage caused. There can have been no loss arising from this incident.

2 No Landowners Contract

I do not believe that the Operator has demonstrated a proprietary interest in the land because they have no legal possession which would give UKCPS Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, UKCPS Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require UKCPS Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that UKCPS Ltd are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.


I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to UKCPS Ltd to prove otherwise so I require that UKPCS Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it in the light of VCS -v- HMRC 2012.

Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between UKCPS Ltd and the owner/occupier, containing nothing that UKCPS Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of "The creditor is .....". The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

3 Punitive/unfair/unreasonable charge

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." In this case, UKCPS Ltd has failed to provide any calculation to show how the £60 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that UKCPS Ltd has suffered no loss whatsoever in this case. Even if there was a contract (which is denied), the following matters are relevant:

3(a) Punitive

The parking charge UKCPS is imposing is punitive and therefore void (i.e. unenforceable). The £60 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 £60 charge UKCPS Ltd is 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 £60 parking charge UKCPS is 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.’

those Regulations 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) states that: "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) 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 outcome”.

4. Trespass

Without contract, 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.


With reference to NtK, they wrote that under Protection of Freedoms Act 2012 Schedule 4 sub-para 8,e they were required to request the name and address of the driver of the vehicle, I choose not to supply them this information. Therefore they have not identified the creditor but is this point mute because of my refusal to name? Thanks.

Guys_Dad

Points 1 & 2, written the way they are, should be reversed.

Point 2 challenges the PPC's contract. Point 1 begins "In the unlikely event that UKCPS Ltd do have full rights to make contracts with individual drivers, either on behalf of the landowner, " which logically follows the challenge in point 2.

razorbill

Ok I'll swap 1 and 2 round. Any reply on my ending paragraph would be appreciated. I'll respond on the POPLA site later today.
Thanks

Umkomaas

razorbill wrote: »

Ok I'll swap 1 and 2 round. Any reply on my ending paragraph would be appreciated. I'll respond on the POPLA site later today.
Thanks

With reference to NtK, they wrote that under Protection of Freedoms Act 2012 Schedule 4 sub-para 8,e they were required to request the name and address of the driver of the vehicle, I choose not to supply them this information. Therefore they have not identified the creditor but is this point mute because of my refusal to name? Thanks.

If this is the paragraph you are asking about, you nor the driver is the 'creditor'. The creditor is who you (allegedly) owe money to - the PPC, the landowner, the retailer - but as the 'creditor' is not identified specifically with that term, you don't know who it is, and the NtK fails the PoFA test.

Coupon-mad

The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor. The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of "The creditor is .....". The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.

I would have that as a separate bullet point (headed up 'Notice to Keeper: Breach of paragraph 9 of Schedule 4 of POFA 2012') and also add another breach of POFA 2012 to the same paragraph if the first letter did not reach you by day 15 (counting the day of the parking event as day one). If you search the forum for 'Matthew Shaw' you will see examples of POPLA appeals on various threads recently where I have quoted his findings as a POPLA assessor, and one of his quotes is about how a defective NTK is 'not properly given'. It's a solid appeal point on its own if worded strongly.

And was it a yellow and white Notice to Keeper? They sometimes do not actually state what the duration of parking was (another breach of POFA paragraph 9 of Schedule 4). Also in September UKCPS were using a version that had a heading on the front: 'Appeals Procedures' which didn't mention POPLA and just talked about appealing on stolen car grounds alone. Another epic fail! Check your version.