PCN Counterclaim

bod1467

X-man wrote: »

I understand what you're saying but if POPLA find in the PPCs favour, I should theoretically pay the penalty. At present, the PPC have nothing to lose by going to POPLA. I stand to lose £120.

Not exactly. The POPLA ruling is binding only on the PPC. You are not obliged to pay even if you lose. (Even though the POPLA ruling may infer that you are).

salmosalaris

I am not so sure .PPC 's openly threaten legal action will follow .
Additionally a failure to appeal to POPLA is used by PPC's as ammunition in a court case both to discredit a defendant and an attempt to justify a claim for their costs . Hence there is a pressure exerted on a motorist to appeal to POPLA .
If a POPLA appeal is successful and it is discovered that for example a PPC did not have the rights it claimed or had not adhered to a code of practice to which it subscribes and the PPC were or should have been aware of this then I think there is every reason that a claim for costs in preventing a threatened legal action may be successful

In my opinion this is one of the reasons PPC's have stopped submitting evidence to POPLA , eg on gpeol . A failure to provide evidence of gpeol is not a breach of the BPA Ltd CoP but an adjudication that a charge is not a gpeol potentially is evidence of a breach .

Stroma

Complete rubbish, it has no bearing whether you have used Popla or not, there is no obligation to use this process. And in a lot of cases the parking company tries to circumvent using it by pretending that a NtK was sent and ignored, or they completely disregard the appeal and pretend it was sent. Or they refuse to give a code.

bod1467

To whom are you saying "complete rubbish"? (Might be worth editing your post to quote the post you're referring to).

spikyone

X-man wrote: »

By issuing the PPC with a letter containing terms and conditions, which are deemed to be accepted by them in continuing to pursue me, I have attempted to redress the balance so both I and the PPC have an equal interest dependent on the decision and eventual outcome of POPLA.

As per my last post, including terms and conditions in your letter does not make them enforceable. Particularly when your terms are clearly punitive - in the sense that their intent is to deter the PPC from following a reasonable and legally-permissible course of action.

Salmosalaris raises another point though, you could conceivably ask for costs where a PPC has failed to provide evidence at Popla - in that case (as with PE's well-known losses on GPEOL), they have wasted your time.

BenefitMaster

spikyone wrote: »

As per my last post, including terms and conditions in your letter does not make them enforceable. Particularly when your terms are clearly punitive - in the sense that their intent is to deter the PPC from following a reasonable and legally-permissible course of action.

But it's a genuine contract.

1) Offer. I offer to take the matter to POPLA, and this will cost me (and them) money. IN their case, it's the POPLA £27, in my case its the time and effort of preparing and sending my appeal

2) Acceptance. They refuse my appeal and invite me to take the matter to POPLA.

3) Consideration. They pay POPLA, and in return give me £27 (money's) worth of appeal adjudication time with a POPLA code.

4) Intention to form legal relations. This is clear by their conduct. If they didn't want the contract, they ought to have not proceeded to POPLA by issuing a code.

It's exactly the same as the contract they deem that my driver accepts. Especially when their conduct in claiming Keeper Liability has no basis in law.

salmosalaris

Also consider this from another angle .
How many PPC's have no intention of becoming litigious and think they therefore can write whatever misleading or near fraudulent rubbish on their paperwork because it will never see a court desk ?

This is a way of threatening that any deception will be put in front of a judge . How many PPC's may consider settling to prevent this ?

It is another way of forcing them to at least start playing by their own made up rules and drive up standards in the parking "profession" .

spikyone

BenefitMaster wrote: »

But it's a genuine contract.

No, it is not, because there has been no meeting of minds. Let me reply to your points in turn:

BenefitMaster wrote: »

1) Offer. I offer to take the matter to POPLA, and this will cost me (and them) money. IN their case, it's the POPLA £27, in my case its the time and effort of preparing and sending my appeal
You are not offering anything. POPLA is there as a dispute resolution service. It is free to the motorist, so costs you nothing. In fact they're offering you the option of using POPLA (as they are obliged to) and you're accepting their offer by escalating your appeal, not the other way round. There's no obligation on the motorist to use POPLA, you can let the PPC take you to court, in which case you can claim your costs. You don't even have the ability to offer POPLA since you cannot offer a POPLA code.

2) Acceptance. They refuse my appeal and invite me to take the matter to POPLA.
They haven't accepted anything, they are simply seeking to use a (non-court) dispute resolution service. The purpose of their action is not to accept your offer, the purpose of their action is to resolve the dispute.
It's not the same as using a car park, where your action is with the sole intention of accepting the offer of somewhere to leave your car. See the difference between this situation and your "offer"/"acceptance"?

3) Consideration. They pay POPLA, and in return give me £27 (money's) worth of appeal adjudication time with a POPLA code.
There is no consideration given to you though - you are not party to whatever charging contract POPLA have in place with the BPA/PPCs. The government were very clear when PoFA was introduced that the dispute resolution service would be free to the motorist, so they aren't actually giving you anything.

4) Intention to form legal relations. This is clear by their conduct. If they didn't want the contract, they ought to have not proceeded to POPLA by issuing a code.
As per my reply to point 2, their actions clearly have a different intention.

It's exactly the same as the contract they deem that my driver accepts.
And if that's based on a contractual charge model, then as we've discussed on MSE many times, it's flawed because among other things, the 'charge' is a pseudo-penalty, etc, etc.


Especially when their conduct in claiming Keeper Liability has no basis in law.
Unless they've failed to fulfil the requirements of PoFA or are pursuing in Scotland, then it clearly does have a basis in law.

It seems like you're letting your dislike of PPCs over-rule your common sense. Do you seriously think there's a judge in the country that would side with a motorist trying to claim simply because the motorist won at arbitration?

salmosalaris wrote: »

Also consider this from another angle .
How many PPC's have no intention of becoming litigious and think they therefore can write whatever misleading or near fraudulent rubbish on their paperwork because it will never see a court desk ?

This is a way of threatening that any deception will be put in front of a judge . How many PPC's may consider settling to prevent this ?

Two things. Firstly, rubbish evidence hasn't stopped PE going to court! You're barking up the wrong tree; a judge is going to laugh you out of court long before they look at the nonsense spouted by the PPC, which isn't actually relevant to whether they owe you money anyway.
I can understand why New Generation coughed up after apparently hounding a disabled motorist, but it's not the same as trying to get compensation just because you had to get POPLA to arbitrate.
Secondly, you've said it yourself - this is, as it stands, a threat. I said in a previous post that it's bordering on blackmail, and I stand by that. We must not lower ourselves to the level of the PPCs.

salmosalaris

A charge is issued which can be shown the PPC had no right to make or has no legal basis :

1. There is a genuine loss , the wasted time/costs spent dealing with the matter and I believe that could be recoverable .
2. Any threat of paperwork containing deceit , dishonesty or misrepresentation appearing in court is purely of the PPC's making,there is no loss of the moral high ground there . In no way can this be construed as blackmail and if it encourages them to settle a claim for wasted time/costs they should perhaps modify their paperwork to remove such a risk .

If they abide by their own rules ( which they are required to ) and follow the law there would be no issue .

Sorry I disagree

X-man

I’m in two minds whether to send one or not now.....

I have no intention of taking on and pursuing the PPC through the court if they don’t pay my costs but I want them to know just how annoyed I am that I’ve had to waste so much time on something they know they cannot legally enforce.

Maybe a simple strongly worded letter to them would suffice instead of a PCN, along with a letter of complaint to the DVLA and also the BPA?