Unenforceable ParkingEye PCN

da_rule

I recently won a POPLA appeal against ParkingEye on the grounds that their PCN was unenforceable. I have inserted a copy of the PCN below and have numbered the areas which I appealed on and have explained them further below the image.







1) The layout of dates is misleading. When read using correct English grammar a colon ( : ), used for the purpose which you are using it is a syntactical descriptive, meaning that it is used to describe a term previously mentioned. The term used prior to both of your uses of the colon is "date issued", this would therefore imply that the date following the colon was the date issued, and as such the dates do not correspond with each other.



2) The notice is flawed in that it does not contain the time of issue, purely the date, which therefore means it does not comply with Schedule 4, Paragraph 7(2)(f) of the Protection of Freedoms Act 2012.



3) No evidence that the car was stationary at the time you issued the notice, as this is also a requirement under Schedule 4, Paragraph 7(4)(b) of the 2012 Act.



4) Your instruction that I pass the notice to the driver is flawed, I am under no legal obligation to do so.



Whilst technically points 2 & 3 only apply to Notices to Driver not Notices to Keeper I still threw them in as later on they are saying I should give the notice to the driver, which means that the PCN should be compliant with the notice to driver rules as well.



Also, an area I flagged up was that they gave no details on how to contact them to inform them who the driver was, they only provide addresses/e-mail addresses/phone numbers for payments or appeals.

ColliesCarer

Currently waiting for PE to reply to my appeal to them but may also have to put in a POPLA. Points you raised re: PCN are really useful and having checked mine - equally apply to me. So thanks for your eagle eye!

Was this your only POPLA appeal point or just the winning one?

da_rule

ColliesCarer wrote: »

Currently waiting for PE to reply to my appeal to them but may also have to put in a POPLA. Points you raised re: PCN are really useful and having checked mine - equally apply to me. So thanks for your eagle eye!

Hope you're ready for the standard 'appeal rejected' letter.

ColliesCarer wrote: »

Was this your only POPLA appeal point or just the winning one?

It wasn't my only point, I included the standard no authority to stand and no genuine pre-estimate of loss points, but this was the point on which my appeal was upheld.

kirkbyinfurnesslad_2

Whilst your points are interesting they would be completely irrelevant if it ended up in a county court hearing

da_rule

kirkbyinfurnesslad wrote: »

Whilst your points are interesting they would be completely irrelevant if it ended up in a county court hearing

I think we'll agree to disagree on that point. As they are making a claim for payment under the POFA, they are under an obligation to ensure that their correspondence is compliant with the Act. Under the Civil Procedure Rules, the courts have a duty to look at fairness/equity, and as such a misleading Notice to Keeper would not be looked at as being fair. Also, as the matter is essentially a claim in contract, there is also a need that any enforcement of the penalty clauses is compliant with the original contract. If the letter is therefore misleading then it is not compliant and could be held to be introducing an unfair or misleading term under the Unfair Contract Terms Act (UCTA).

ColliesCarer

da_rule wrote: »

Hope you're ready for the standard 'appeal rejected' letter.

Yep - in fact may even be looking forward to it!

kirkbyinfurnesslad_2

da_rule wrote: »

I think we'll agree to disagree on that point. As they are making a claim for payment under the POFA, they are under an obligation to ensure that their correspondence is compliant with the Act. Under the Civil Procedure Rules, the courts have a duty to look at fairness/equity, and as such a misleading Notice to Keeper would not be looked at as being fair. Also, as the matter is essentially a claim in contract, there is also a need that any enforcement of the penalty clauses is compliant with the original contract. If the letter is therefore misleading then it is not compliant and could be held to be introducing an unfair or misleading term under the Unfair Contract Terms Act (UCTA).

Prehaps you would like to try that argument in a court , it simply wont wash nor should anyone use it in their defence(the first half)

da_rule

kirkbyinfurnesslad wrote: »

Prehaps you would like to try that argument in a court , it simply wont wash nor should anyone use it in their defence(the first half)

As I said, agree to disagree. As the NTK is improperly drafted I would simply state to the court that as it isn't correct it cannot be relied upon, therefore if it cannot be relied upon the parking company have not complied with the POFA in that they have failed to serve an adequate NTK within the relevant time.

nigelbb

Non-compliance with POFA is only relevant if the PPC are invoking POFA & claiming keeper liability AND the keeper was not driving AND can prove they were not driving.

da_rule

The end of the fourth paragraph of the PCN (the part in the grey box) says "and is subject to our complying with applicable conditions under Schedule 4 of that Act [POFA]."

This paragraph talks about their right to claim the money from the keeper if the driver is not identified within the 28 days, but subject to them complying with Schedule 4 of POFA, which they clearly haven't. A view also taken by POPLA. Therefore as they have not complied, their warning is completely worthless and therefore cannot be relied upon or enforced.

kirkbyinfurnesslad_2

da_rule wrote: »

The end of the fourth paragraph of the PCN (the part in the grey box) says "and is subject to our complying with applicable conditions under Schedule 4 of that Act [POFA]."

This paragraph talks about their right to claim the money from the keeper if the driver is not identified within the 28 days, but subject to them complying with Schedule 4 of POFA, which they clearly haven't. A view also taken by POPLA. Therefore as they have not complied, their warning is completely worthless and therefore cannot be relied upon or enforced.

Well its been enforced plenty of times by PE in the county court......