Peel Centre Excel PCN appeal turned down as after 28 day period

bod1467

It is STILL utter bollox! The keeper can name the driver at any time prior to court action!

The situation is unchanged - the BPA CoP does not supersede The Law!

Is it time for a mass email campaign to Steve C/David M to remind them of this fact?

Stroma

Pofa 2012 does not say that a driver cannot be named after 28 days, I would ask them how the hell they came to that conclusion? And how can a parking company pursue this to court when they know they are taking the wrong person there? That could be called contempt and abuse of the court system.

These bpa idiots are so blinded by their bullsh*t that I think they truly believe they are correct! They need a reality check like our friend Nick got the other day.

Flying_girl

Thank you for your replies, can anyone suggest the wording for a further letter to the BPA and Excel parking as they both say this matter is now closed!! I really feel like I've hit a brick wall and can't really see where I can go from here, I really appreciate everyone's input so thanks again.

Stroma

Well if they feel the matter is closed then let them stew. Maybe something like this

Dear Excel

Thank you for your reply, as you refuse to take this matter up with the person I have passed liability to, I am writing this to inform you that this matter is now closed.

If you intend to take this further and initiate a claim against me, it will be defended in full, and part of the defence will be your refusal to accept the driver details given to you, which is a direct breach of pofa 2012. I will also pursue you for harassment.

Faithfully

ColliesCarer

hi Flying girl,

I agree with Stroma that you should let them stew. You have discharged your liability under POFA no matter what they say.

I understand your desire to see an end to it and not have the prospect of them bringing a claim against you hanging over you but if they did they wouldn't stand a cat in hell's chance.

Here's why

The right to claim unpaid parking charges from the keeper of the vehicle under POFA 2012 Schedule 4 is not about sending out invoices and debt collector letters, anyone with no legal rights to do so can do that, it is about having the legal right to pursue the keeper through the courts.

The right under POFA schedule 4 para 4 only applies if the conditions specified in paragraphs 5, 6, 11 and 12(so far as applicable) are met.

Paragraph 5 clearly states that the first condition is that the creditor
1(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charge but
1(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know the both the name of the driver and a current address for service for the driver.

5(2) states: Sub-paragraph 1(b) ceases to apply if (at anytime after the end of the period of 28 beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid charges from the keeper.

Therefore up to the commencement of proceedings the right to pursue the keeper ceases to exist if the creditor is able to take steps to enforce against the driver irrespective of how much time has passed since the notice to keeper was given.

Excel has not begun proceedings to recover the unpaid charges against you, the keeper, (sending out invoices and debt collection letters does not equate to having begun proceedings) and 5(1)(b) no longer applies because you have given them both the name of the driver and a current address for service for the driver.

Therefore Condition 1 is not met and Excel have no right to continue to pursue you .

Regarding POFA Schedule 4 Paragraph 4 (4)

i.e. The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.

This is completely irrelevant as it only relates to the earliest a creditor could exercise a right under paragraph 4(1) however as the conditions for that right to exist (detailed in paragraph 4(2)) have not been met, there is no right that could now be exercised.

Excel should now pursue the driver, who has not received any notification of this charge in their own right. Excel should therefore now issue a notice to driver to the named driver at the address they have been supplied with.

The part in blue could be adapted for further letters if you really want to continue to try but in all honesty IMO you'd be banging your head against a wall and you are probably better using your time trying to get the landowner to cancel.

Regards
CC

bod1467

That is an excellent summary CC.

And it shows where the flowchart I linked earlier erroneously gets its 28 days information ... 5(2) "(at anytime after the end of the period of 28 beginning with the day on which the notice to keeper is given)".

Hence my previous comment that the keeper can name the driver at any time prior to the commencement of court proceedings. Excel have NOT commenced proceedings so the OP's previous naming of the driver is legal and valid, and discharges any liability - regardless of if it was more than 28 days after the NTK.

ampersand

Just in and find the brilliant advice from stroma, CC and bod sitting there for you, flying girl.
'irrespective of how much time has passed since the notice to keeper was given' - is your rock. Let the BPA and excel founder on it.

ColliesCarer

That is an excellent summary CC. Thank you bod1467

And it shows where the flowchart I linked earlier erroneously gets its 28 days information ... 5(2) "(at anytime after the end of the period of 28 beginning with the day on which the notice to keeper is given)".

Hence my previous comment that the keeper can name the driver at any time prior to the commencement of court proceedings. Excel have NOT commenced proceedings so the OP's previous naming of the driver is legal and valid, and discharges any liability - regardless of if it was more than 28 days after the NTK.


Yes exactly - how can they talk in terms of interpretation? There's is no other interpretation that can be made.

As my Dad used to say "Well it doesn't take a Philadelphia Lawyer to work that out does it?"

Maybe just someone who's smarter than the average parking guy eh Booboo

Fairjustice

Hi Flying Girl,

When you have a moment please check the email I sent.
Your circumstance would make an interesting case study regards excel and peel.
I need such examples to assist on something, check your email.
Let me know if you ok with it.

Thanks

Fairjustice

Flying_girl

I have put together this letter from the helpful advice you have given me, does this sound Ok to send????
Really appreciate all the advice given to me, thank you.



Dear Excel and Rossendales Collect

Thank you for your reply, as you refuse to take this matter up with the person I have passed liability to, I am writing this to inform you that this matter is now closed.

If you intend to take this further and initiate a claim against me, it will be defended in full. Part of the defence will be your refusal to accept the driver details given to you, which is a direct breach of POFA 2012. I will also pursue you for harassment.

I have discharged my liability under POFA and these are the reasons why;

The right to claim unpaid parking charges from the keeper of the vehicle under POFA 2012 Schedule 4 is not about sending out invoices and debt collector letters, any idiot with no legal rights to do so can do that, it is about having the legal right to pursue the keeper through the courts.

The right under POFA schedule 4 para 4 only applies if the conditions specified in paragraphs 5, 6, 11 and 12(so far as applicable) are met.

Paragraph 5 clearly states that the first condition is that the creditor
1(a) has the right to enforce against the driver of the vehicle the requirement to pay the unpaid parking charge but
1(b) is unable to take steps to enforce that requirement against the driver because the creditor does not know the both the name of the driver and a current address for service for the driver.

5(2) states: Sub-paragraph 1(b) ceases to apply if (at anytime after the end of the period of 28 beginning with the day on which the notice to keeper is given) the creditor begins proceedings to recover the unpaid charges from the keeper.

Therefore up to the commencement of proceedings the right to pursue the keeper ceases to exist if the creditor is able to take steps to enforce against the driver irrespective of how much time has passed since the notice to keeper was given.

You have not begun proceedings to recover the unpaid charges against me, the keeper, (sending out invoices and debt collection letters does not equate to having begun proceedings) and 5(1)(b) no longer applies because I have given you both the name of the driver and a current address for service for the driver.

Therefore Condition 1 is not met and You have no right to continue to pursue me.

Regarding POFA Schedule 4 Paragraph 4 (4)
i.e. The right under this paragraph may only be exercised after the end of the period of 28 days beginning with the day on which the notice to keeper is given.
This is completely irrelevant as it only relates to the earliest a creditor could exercise a right under paragraph 4(1) however as the conditions for that right to exist (detailed in paragraph 4(2)) have not been met, there is no right that could now be exercised.

You should now pursue the driver, who has not received any notification of this charge in their own right. Excel should therefore now issue a notice to driver to the named driver at the address I have supplied you with.

Yours faithfully