Note to Keeper Soft appeal letter review

rekelon

Hey all,

Don't know if this is the right place to post this but I have written up a soft appeal letter in response to a note to keeper letter that I received this week.

I think that I have a quite clearly water tight case here but I wouldn't mind someone else's feedback




To whom it may concern....


I am the registered keeper of the above vehicle. I refute the liability for any charge that you allege that I owe.


I would like to draw your attention to the following issues with the note to the keeper that I received through the post which I feel fails to comply with both the BPA Code of Practice and POFA 2012; which You as a member of the British parking association should be concerned about.

The BPA CoP clearly states the following:

8.2.a specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relate;
The note does not specify the address that this took place on only the town
8.2.e The notice must — state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(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;
You have not clearly stated that you do not know the name or address of the driver.

8.2.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;
You have stated that the amount will be due on the 18th Feb which is 14 days after the issue of the note to the keeper rather than the required 28 days.
8.4 The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
8.5 The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.
8.6 A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
the ticket was issued to the driver on the 03/12/2013 and the note was issued on the 04/02/2014 using 8.6 that is two working days after the date of posting which would mean that the letter was considered delivered on the 06/02/2014. Therefore 65 days after the event which is greater than the 56 days deadline after incident.

8.8 In sub-paragraph (2)(g) the reference to arrangements for the resolution of disputes or complaints includes—
(a)any procedures offered by the creditor for dealing informally with representations by the keeper about the notice or any matter contained in it; and
(b)any arrangements under which disputes or complaints (however described) may be referred by the keeper to independent adjudication or arbitration.
You have not offered any mechanism or advice on how to make an official complaint or dispute to an independent adjudicator or arbitrator.


Under these circumstances, I reserve my right not to identify the driver and ask that you cancel the PCN immediately or, if you refuse to do so, send me a POPLA code in order that I may make my representations there. I also reserve the right to add other appeal points should a POPLA appeal be required.

Furthermore in regards to the parking charge to the driver, the original amount was £100 reduced to £60 if paid within 14 days however the new parking charge to myself as the keeper of £130 seems excessive. I feel that this large sum does not represent a genuine pre-estimate of loss to yourself or the landowner. In every case where a motorist has raised this issue, POPLA have accepted the appeal. You are therefore fully aware that there is no prospect of your charge being upheld. If you do reject the challenge and insist upon taking the matter further I must inform you that I may claim my expenses from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail.


Yours faithfully,

The keeper

Umkomaas

I think it's good you've put this together without any initial assistance from the forum.

The first question really is what are you hoping to achieve with this first stage appeal? From experience I would say that if you are looking at a dropping of the PCN by the PPC, the chances are slim, regardless of what you put in your appeal to them, so my view would be not to go into any great detail, it's wasted.

We have a fairly standard initial appeal (put together by experienced member Stroma) which is designed to hook a POPLA verification code, where your chances of getting this PCN out of your life is by far the best opportunity. Here it is:

Dear xxxxx

As the registered keeper of xxxxxxx (registration number) I'm in receipt of your parking invoice xxxxxx dated xxxxxx. I wish to invoke your appeals process as all liability to your company is denied on the following basis:

1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner;
2) Your signage does not comply with the BPA Code of Practice;
3) You are not the landowner and do not have the capacity to offer contracts or to bring a claim for trespass.

These points and others will be raised with POPLA should you not accept this appeal, and you will be expected to provide a full breakdown of your alleged loss, and your full unredacted contract with the landowner.

If you do reject the challenge and insist on taking the matter further, I must inform you that I may claim my expenses from you. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail.

Please issue your cancellation within 35 days of this letter, or forward a POPLA verification code.

Any communication that does not either confirm cancellation or include a POPLA verification code shall be reported to the BPA as a breach of their Code of Practice - the BPA recently issued guidance to all members to remind them of this fact. Such communication may also be deemed harassment and pursued accordingly.

It keeps it all 'down the line' and doesn't allow for any misinterpretation or provide for any prevarication on the part of the PPC. My recommendation is to use that, but it's entirely up to you.

As I said above, you need to determine your goal for the initial appeal.

HO87

Have you received a Notice or Keeper (NtK) or has this been written immediately following a windscreen ticket? If the latter, then delay sending the appeal until you have received the NtK.

Drawing the attention of the PPC to a Code of Practice they should know inside out is of little benefit IMHO and given the number of winning points you have I would make you letter far stronger but somewhat briefer - save your real powder for POPLA. I would suggest the following:

Any PPC Ltd
Anytown

Dear Sirs

Notice to Keeper No. XXXXXXXXX

I refer to the above notice. For the avoidance of doubt I am the registered keeper of the vehicle in question. I deny any liability for the charge you are attempting to levy and deny that any debt exists. However, I wish to exercise my right to appeal the issue of the Notice.

On the day of the alleged parking event the driver purchased a ticket for parking. This ticket was displayed on the dashboard, indeed, is clearly visible in your own photographic evidence and would have been visible to your attendant. This is demonstable in evidence I have secured. There was, therefore, no breach of the purported terms and conditions and you have no case.

Furthermore, in serving upon me the Notice to Keeper it is clear that you are seeking to invoke the facility available to you by virtue of Schedule 4, Protection of Freedoms Act 2012 to hold me, as the keeper, liable for the charge allegedly incurred. However, the alleged parking event occurred on 3 December 2013 and the Notice to Keeper is dated 4 February some 62 days later and received by me after that.

Setting aside, for the moment that there was no breach of the purported terms and conditions, the fact that the notice itself fails to comply with the requirements of para 9, Schedule 4 it was also served out of time. Your pursuit of me is therefore doomed to fail and I decline your invitation to identify the driver at the time.

In addition, I wish to appeal against the issue and the following grounds:

1. You have have no or insufficient proprietary interest in the land to seek to levy charges for alleged breaches of contract and ultimately issue proceedings.
2. Your signage fails to comply with the requirements of the BPA Approved Operator Scheme Code of Practice and in any event fails to convey a contract.
3. The charge you are seeking to levy does not represent a genuine pre-estimate of your loss or that of your principals. It is therefore punitive and intended as a penalty.

I therefore ask that you cancel the notice immediately or, if you refuse to do so, send me a POPLA code in order that I may make my representations there. I also reserve the right to add other appeal points should a POPLA appeal be required.

You will be aware that in every case where a motorist has raised the issue of genuine pre-estimate of loss POPLA has upheld the appeal. You must therefore be aware that there is no prospect of your charge being upheld. If you do reject the challenge and insist upon taking the matter further I must inform you that I may claim my expenses from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail.

Yours faithfully,

rekelon

It is the notice to keeper. Reading your new proposal. I like how you have mentioned lack of clear signage. It is a sort of instant win statement due to the fact that it would cost them too much to investigate hence why it most likely results in a acceptance of appeal? Also is there anything wrong with showing all my points in advance? It is not like they if I reveal now they can draw a counter argument against it?
Or is it worth working out now how quickly they will fold if under abit of pressure incase they issue a ticket to the driver in the near future?

4consumerrights

@Rekelon - which PPC are we talking about here. There are some that do not use keeper liability under POFA at all - and if it is one under the IPC - they have a different set of criteria and code of practice,

rekelon

Oh it is premier parking solution (BPA approved)

4consumerrights

I'm not sure that PPS invoke keeper liability - which could be why it is not compliant under POFA - in which case it is vital that no inference is made as to who was driving - so edit any references in first post.

IIRC (and viewing a recent NtK if remembered correctly) - this could be more of fishing trip for you to name the driver and a crafty wording using references to liability.

would you like to post up a redacted copy of the NtK?

They are also in direct breach of the COP by requesting £130 in the first instance and by not offering a reduction of the original charge.

rekelon

Here is the copy of the NtK. (You will have to copy and paste it into a browser as I cannot directly link as I don't have enough posts.

dropbox.com/s/0ikm18rtzibipm0/parking_note.jpg

(You can see the parking ticket in the centre of the car window

Also what is COP?

4consumerrights

They definitely are not able to pursue the keeper by that notice and do not even mention POFA at all!

Here is a more suitable appeal:

Dear PPS

Dear Sirs,

I am the registered keeper of the vehicle registration number xxxxx and confirm receipt of your parking charge notice xxxxxxx dated xxxxxx and deny any liability to pay this parking charge.

As you appear to have obtained my details circumventing POFA 2012 , the registered keeper is not responsible for this charge but the driver. Please note I have no legal obligation to name the driver and suggest you cancel this charge forthwith

The charge you are requesting - £130 is in direct breach of your Code of Practice and requires your company to demonstrate in advance to the BPA how this sum is calculated. This sum does not reflect a genuine pre-estimate of loss for any alleged breach that you preceive the driver to have breached in this instance. Your notice does not specify what the alleged contravention was and it is therefore impossible to determine any liability to either the driver or the registered keeper in this matter. Furthermore I contend that this charge is totally disproportionate and punitive and can only be considered as an unlawful penalty by default and cannot reflect any loss either to your company or the landowner.

Now as you are pursuing the wrong person, you are being put on notice that complaints are being prepared to submit to the BPA and DVLA and I suggest that you cancel this parking charge immediately to save further embarassment.

However should you wish to pursue this matter further, then you are more than welcome to supply a POPLA code which will result in further appeal points raised. This will include the requirement to show your unredacted contract with the landowner as I believe that Premier Parking Solutions have no proprietary interest in the land in question and are acting as agents for the landowner, and cannot pursue parking charges through the courts in their own name.

You should be aware that if you either continue to pursue myself as keeper (with or without supplying a POPLA code), then I reserve the right to raise a claim for my costs and time against you at a court rate of £18 per hour. My costs are not exhaustive and will include stationery, stamps, travel expenses and any legal costs etc, and by continuing to pursue me you agree to pay these should I prevail.

In view of the above, I look forward to receiving your written confirmation by return that this parking charge has been cancelled.

Yours faithfully

squiggle name
Registered Keeper

HO87

+1 for 4cr's suggestion - in light of the type of NtK used by PPS.

rekelon

Seems quite a strong one you have written. How have they circumvented POFA 2012? Is it because they are acting as an agent for the land owner and should only have the power to obtain info from the DVLA if they are preparing for legal action. (Which they cannot as they are not the land owner)

Also you stated that they have not detailed the contravention that was broken, I am guessing it is because they have not stated "the car was not displaying a ticket" rather they left it open ended.

If they do decide in the future to go to POLA (which they won't as they failed to comply with POFA with the note to keeper. which would result them most likely losing (I presume) Then I am guessing can always present more evidence at a later date.

I am really surprise that these people are still allowed to go around and bully people like this with threatening letters.