NCP - successful first appeal

rdr

Pay and Disply Station car park in England
Driver put fee in machine which kept money but did not issue ticket, driver left note on dashboard, saying this.
Windscreen ticket issued and appealed as keeper immediately:

PCN number xxxxxxx
As the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:
1) The driver paid the parking fee by putting £6.20 into machine No. 2 in the car park, the machine failed to issue a ticket. The driver left a note stating that they had lost their money in the machine which was ignored by your attendant. The driver was unable to display a ticket due to your failure to maintain your machine in good working order and the failure of the machine to fail safe.
This means that your failures caused the driver to be unable to display their ticket and that you have suffered no loss. This could be construed as entrapment.
2) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
3) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
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 (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your recent Notice failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.
- 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.

Holding letter received, just logged on to chase response to find the invoice has been cancelled.

Coupon-mad

Great update - that will help others to see that a strong first appeal based on the template in the NEWBIES thread can work first time! And you were right to contact NCP early as well, stopped them in their tracks, no faffing about pretending it's too late to appeal, etc.

rdr

Coupon-mad wrote: »

Great update - that will help others to see that a strong first appeal based on the template in the NEWBIES thread can work first time! And you were right to contact NCP early as well, stopped them in their tracks, no faffing about pretending it's too late to appeal, etc.

In this case, appealing early also continued the pattern of being "helpful" and doing everything possible to minimise their costs, reinforcing the fact that any costs they incurred were their fault, not the driver's or keeper's.

I should have added a reconciliation of the cash received vs tickets issued for the machine in question, to the information required if my appeal was rejected.

And thank you for the templates.