Elite PCN first appeal - is this okay/sufficient?

TeacherTeacher

I am appealing on behalf of a family member. Please confirm if this letter is enough, as I would like to post it on Monday. As you can see, most of it is a 'cut and paste' job. Many thanks.

REF: Elite Management (Midlands) Ltd
PCN number: XXXX
Vehicle Registration Number: XXXX XXX


Dear Sir/Madam,
FORMAL APPEAL OF NOTICE TO REGISTERED KEEPER UNDER THE POFA 2012

As the registered keeper, I received your parking invoice (dated XXXXX) on the XXXXXX which of course I decline your invitation to pay. You have missed the deadline to establish 'keeper liability' under POFA 2012, so I was surprised to see you are demanding £100 from me as the keeper. Your Notice alleges an incident on XXXXX; if you had wanted to establish keeper liability under the POFA 2012, you were duty bound to ensure that a compliant Notice to Keeper was served between day 29 and day 56. Clearly this is too late for your purposes.

I therefore wish to invoke your appeals process, since 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) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass.
3) The vehicle is covered by and displays a valid permit, for which there is no charge. Therefore, the vehicle was parked with authorisation. Furthermore, there is no other ‘pay and display’ arrangement for the car park and therefore there was no loss or damage caused by the parking event. Under the BPA CoP, a PCN for 'breach of terms' must only be a genuine pre-estimate of loss.
4) Your Notice to Keeper (NTK) was received more than 56 days after the alleged parking incident. As such it is out of time to invoke registered keeper liability under the Protection of Freedoms Act (POFA 2012).
5) Your NTK fails to comply with BPA Code of Practice, of which you are a member.

Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

- the legal basis of your charge
- if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.
- if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.
- if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

Take formal note:

(a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

(b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

(c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs 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 and legal fees as well as liquidated damages for distress arising from harassment.

By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.


Yours faithfully

da_rule

Looks good. Did your family member originally receive a notice which was stuck to their vehicle? Also, are you in England/Wales?

TeacherTeacher

Yes and yes.

da_rule

Excellent, looks like you're good to go then.

There's a slight formatting error at the top, there's a space between points 1 and 2.

If you are sending by post get a free proof of postage from the Post Office (but don't send recoded/signed for).

TeacherTeacher

Thanks. The formatting error isn't in my original - it just appeared when I posted it here! I did plan on getting a certificate of posting. Should I email it as well? What's the chance of success?

da_rule

You could e-mail it as well, covers all the angles. Your chances of winning this appeal are slim to none (why would a parking company agree not to be paid?). The idea of the initial appeal is to generate a POPLA code. If you use the templates on this forum then your chances at POPLA are extremely good (100% win rate at the moment).

TeacherTeacher

I note that on the 'NEWBIES' page it says:
SECOND STAGE APPEAL - POPLA FOR BPA MEMBERS OR IAS FOR IPC MEMBERS.

On the back of the received PCN it mentions IAS for appeals but their parking sign on site includes the BPA logo. So are Elite Management members of both or neither?!

da_rule

I assume this is Elite Management (Midlands) Limited? If so they are a BPA member. The problem is that the abbreviations are confusing. POPLA is technically an IAS (Independent Appeals Service). The IPC (who are another Accredited Trade Association similar to the BPA) call their appeal 'body' The Independent Appeals Service (IAS).

TeacherTeacher

Ah, I see. Also, do I need to change my letter of appeal for the 2nd stage or can I just send the same one again?

TeacherTeacher

And yes, it is Elite Management (Midland) Ltd

TeacherTeacher

Ah, I see. Also, do I need to change my letter of appeal for the 2nd stage or can I just send the same one again?