Threatened with Debt Collectors - Please Help

IamNotAllowedToUseMyName

You could also add explicitly that it is entirely unclear as to the boundaries of the site supposedly being controlled by the signs. I believe clear designation of the area controlled was an issue of much interest to the judge in a recent case.

14wrence

Fantastic. Thanks very much to you both - I appreciate it a lot. You can imagine how I felt when I was slapped £100 for 2 minutes stopping, straight after I had been made redundant a month before.... A special thanks to Coupon-mad.

Here's the last cut:

PCN No: xxxxxx
POPLA Code: xxxxxxxxxx
Todays Date

Dear POPLA,

I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the parking charge and the vehicle was not improperly parked. I wish to appeal against the notice on the following grounds.

1) No keeper liability established - late and flawed wording in NTK

The driver was present in the area in question, on 9th March 2014. At the time the driver received no windscreen ticket. The PCN arrived by post to the registered keeper on the 12th April 2014 on a letter dated the 11th April 2014. This is far outside the 14 day notification time, for keeper liability under POFA.
Additionally the Notice to Keeper is not compliant with POFA 2012 on three counts.
- Firstly, it fails to state the period of parking: paragraph 8(2)(a)
- Secondly, it fails to identify the creditor and specify how and to whom payment or notification to the creditor may be made: paragraph 8(2)(h)
- Thirdly, it fails to inform the keeper of the arrangements for the resolution of disputes or complaints that are available: paragraph 8(2)(g). This must include:
(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.
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.

2) Lack of BPA compliant signage – No Contract Formed with Driver.

On inspection of the evidence sent by ParkDirectUK - the signage is extremely small, and view is restricted from the angle of the driver’s seat by several wheelie bins.

There was no contract formed with the driver and if ParkDirect had wanted to communicate the area to be a no-stopping zone then they were required to sign it accordingly, with clearway signage, yellow hashings or red lines, and repeater 'no stopping zone' signs facing the driver. This was covered by the Lead Adjudicator in the last POPLA Annual report where it was made clear that ordinary, wordy signs on walls are not suitable for a no-stopping zone. Additionally it is entirely unclear as to the boundaries of the site supposedly being controlled by the signs.
Because they hid their sign behind wheelie bins in a dark corner, this Operator has failed to communicate the terms of parking. Due to the small font and position on the wall, to any reasonable visitor it looks as if the white sign is not a parking sign but one related to the rules about the communal bins. And the yellow sign (if seen, which it was not because it is not prominent) could not have created a contract as there is no offer, consideration nor acceptance that can flow to/from an Operator using such wording. No other signs are in the area, as far as I could see when checking the site, so I contend that the driver cannot be deemed to have entered into any contract nor breached any clearly-signed terms.
I contend that the signs and any core parking terms (PPC) are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

3) The charge is a penalty and not a genuine pre-estimate of loss

The charge demanded far exceeds any loss to the landowner. If it exceeds any loss, it becomes a penalty.
In the appeal, ParkDirectUK did not address this issue, and has not explained whether their charge is relating to a breach of terms, or trespass, or contract (all of which are denied).
In Vehicle Control Services Limited (VCS) -v- Mr Ronald Ibbotson (Case Reference 1SE09849 May 2012) District Judge McIlwaine reminded the Operator of the need to mitigate any loss in circumstances where the employee is near enough to observe the driver.
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.
The £100 charge asked for far exceeds the cost to the landowner as the driver only stopped for approximately 4 minutes. The area was very quiet and no other vehicles were obstructed for the duration. Therefore the parking charge and the parking charge notice cannot be construed as anything but a punitive penalty. For this charge to be justified a full breakdown of the costs ParkDirectUK has suffered as a result of the car being stopped at the car park is required and should add up to £100.

4) UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

5) Lack of Proprietary Interest & non-compliant Contract with
Landowner

ParkDirectUK lack of title or assigned interest in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis, as they are not the landowner and I have seen no evidence of a compliant contract with the landowner.
I put ParkDirectUK to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor (a requirement of the BPA Code of Practice).

6) Lack of Grace Period and covert ticketing operation not BPA CoP compliant.

The unknown person taking the pictures didn't apply a windscreen PCN so the driver had no idea of any contract nor any alleged breach. No employee was seen wearing any kind of uniform or ID showing they are involved with 'parking enforcement', please could I see evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, the lack of grace period and the secret pictures taken leads me to believe this was not a trained operative. Nor were they using a liveried vehicle, I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA CoP as this is not a reasonable, consistent nor transparent operation.

7) Business Rates and VAT would apply if the charges are contractual agreements for the provision of a service

ParkDirectUK run a business in this car park for revenue and profit, and (although no signs were seen by the driver at all) I now notice that their signage appears to try to create a contractual agreement for 'services'. I put ParkDirectUK to strict proof that Business Rates are being paid to the Local Authority Valuation Office in respect of this 'contractual parking service' business, and that they are paying VAT to HM Revenue & Customs.
I contend that this operation is not a case of a contractual agreed fee to park at all - a firm cannot on the one hand prohibit 'stopping' and yet on the other try to paint the charge as a contractual fee in order to allow 'stopping'! If ParkDirect are operating a contractual fee here then their contract with the landowner must show this to be the case. As evidence from ParkDirect, as well as proving that Business Rates and VAT are being paid - I hereby require a VAT invoice to be sent with both copies of the evidence pack. No VAT invoice for my 'charge' will prove my point that this is not a genuine 'contractual fee for a service'.

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

I respectfully ask the POPLA assessor to consider my points and evidence and order that this charge be cancelled.

Yours faithfully,

14wrence

Is it best to post this to them, or can I submit it to Popla on line?

bod1467

How about both?

14wrence

Hi.... Just an update on this. I sent the letter to Popla on line who sent me acknowledgement email, and said that the case was opened and they have asked ParkDirectUK for their evidence.

They also stated, that I would have the decision, on or soon after the 21st of April.

As of yet I still have not heard anything, so I am hoping no news is good news.

I will keep you posted once I hear an anything.

bod1467

Have you not received a copy of ParkDirectUK's evidence pack?

It sounds to me like PDUK won't send in an evidence pack and you'll get a default win. Give it a couple more days then ping POPLA an email asking for an update on your appeal.

14wrence

Nope have not received anything at all. So I am hoping ParkDirect have left it too late now.

bod1467

In theory they have. In practice POPLA are far more forgiving of PPCs being tardy and not following the rules than they are of motorists doing likewise.

Coupon-mad

Email POPLA and say you've had no evidence pack and the PPC are now to all intents & purposes, out of time, so you hope to hear positive news from POPLA very soon.

14wrence

Coupon-mad wrote: »

Email POPLA and say you've had no evidence pack and the PPC are now to all intents & purposes, out of time, so you hope to hear positive news from POPLA very soon.

Yes - did that - got a reply today saying that they (POPLA) have not received evidence from the operator for this case.

It goes on to say the case will remain listed for consideration by an Assessor.

Not sure what to make of that.

Whose side are POPLA on??