Apcoa Luton Dropping/Picking up PCN

Truckert_2

Hi All

I wonder if you could give me your assistance?

The driver stopped on the roundabout just out side the drop off point at luton airport as he was picking up my niece and she was standing on the kerb.
He didn't pull over due to there being no traffic and just stopped in the road.

Total time stopped was 3 - 5 seconds (she had no luggage)

Anyway I have received a pcn from apcoa and have drafted this appeal letter for them.
Could you have a read and let me know your thoughts before I send it please ??

Apcoa Parking
PO Box 1010
Middlesex
UB8 9NT

Dear Sir or Madam,

Ticket number: LM1
Vehicle registration number:
The unlawful issue of a ‘Notice to Keeper’ (BPA AOS Code of Practice B.22)
I refer to recent PCN dated xx/xx/2014.

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:

I assume your “Parking Charge Notice” and the first line being “Notice is hereby served to the registered keeper” that this is a “Notice to Keeper” and along with other references drawn from the Protection of Freedoms Act (PoFA) it is clear that APCOA is dealing with its claim in accordance with the requirements of Schedule 4 of POFA.

The requirements of Schedule 4 PoFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt.

The BPA Ltd AOS Code of Practice (version 2) supports the need for strict compliance (para 21.5 refers).

APCOA has however failed to comply with the statutory requirements as follows;

1) In regards to paragraph 9(2)(h) of Schedule 4, PoFA 2012. Whilst your ‘Notice to Keeper’ has indicated that you require a payment to be made to APCOA, there is no specific identification of the “Creditor”, who may, in law, be APCOA or London Luton Airport or, some other party.

PoFA requires a ‘Notice to Keeper’ to have words to the effect that “The Creditor is….”

The wording of Paragraph 9(2)(h) of Schedule 4 of PoFA does not indicate that the “creditor must be named, but “identified”. To “identify” a “Creditor” a parking company must do more than name that person. The driver is entitled to know the identity of the party with whom he has legally contracted.

This view is supported by the Secretary of State for Transport. He has reserved to himself powers to make regulations to specify not only what must be said in a ‘Notice to Keeper’ but also what evidence should be provided.

He says “The purpose of this power is to leave flexibility to mandate the specific evidence which must accompany a notice to keeper if it becomes clear that creditors are attempting to recover parking charges without providing keepers with sufficient evidence to know whether the claim is valid”

2)In addition to APCOA’s failure to specifically identify the “Creditor”, it has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

3) The most serious failure and that which has given me cause to submit a formal complaint to the DVLA.
You have failed to comply with paragraph 9.4 of Schedule 4 of the Act in that you failed to give the Notice to Keeper to me within the “relevant period”.

The alleged infringement occurred on the xxth xxxx 2014 and no ‘Notice to Driver’ was issued at the time. The Notice to Keeper is dated xxth xxxx 2014 which is 16 days after the event and too late to ensure delivery within the statutory 14 days prescribed by PoFA.

Paragraph 9(4) indicates that the Notice to Keeper must be given to the registered keeper not more than 14 days after the car allegedly infringed the car park terms and conditions. Paragraph 9(6) states that “A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted” which in this case would be the xx xxxx 2014.

Your company would have been well aware of these facts when it took the decision to send out the Notice to Keeper under PoFA. You have misrepresented the legal position in the full knowledge that there can be no keeper liability.

That is an aggravating feature which the DVLA must take into account in determining what sanction to issue to your company.

I will remind you that:

POFA requires that in order to make use of the provision to pursue the registered keeper (if the driver does not pay the sum demanded) the operator must send a Notice to Keeper within 14 days (counting the day of the parking event as Day 0) - para 9, Schedule 4, Protection of Freedoms Act 2012.

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.

Further more 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.

I therefore expect you to immediately cancel the ‘parking charge Notice’ and inform me, in writing that you have done so.

If however, you reject this challenge, then, in accordance with the BPA Ltd AOS Code of Practice (version 2) 22.12, please ensure that you enclose all the required information (including the necessary ‘POPLA code’) so that I may immediately refer this matter (and any further issues that I may subsequently raise) for their adjudication on the matter.

I do not expect to receive a ‘generic’ template response and which fails to address the specific issues that I have raised with you.

No further correspondence will be entered into.

Yours sincerely

Your advice and guidance would much appreciated

Thanks in advance,
Truckert

HO87

APCOA cannot use POFA at Luton because the airport and surrounding roads are covered by byelaws. From that perspective your appeal is somewhat overworked and parts of it are largely redundant.

I suggest that you stick to the tried and tested:

Dear Sir

PCN No XZXZXZXZ

I refer to the above PCN and the Notice to Keeper received. As the registered keeper I wish to invoke your appeals procedure as follows:

1. The charge you have issued does not represent a genuine pre-estimate of yours or your principal's loss in respect of the alleged infraction and in any event represents a contractual penalty.
2. You lack sufficient proprietary interest in the land to be able to offer any contract to park or to direct the conduct of motorists.
3. The signage is totally inadequate and cannot therefore be relied upon to form the basis of any contract and in any event fails to conform to the standards establish by the British Parkling Association.

Please therefore cancel the PCN forthwith or provide me with a POPLA reference in order that I might promptly make further representations to them.

By all means add the sections at the bottom in respect of "you unsupported unsolicited...

Annie1960

Not a genuine pre-estimate of losses seems to be the most important point to include, but also include the others for good measure (no contact with driver, and non-compliant signage).

Truckert_2

I am getting a little confused is the fact that I received the PCN after 14 days not relevant as the supposed infringement occurred on Airport land so APCOA are following a different set of guidelines ??

Please explain if you have the time please.

Thanks,

Stroma

Look at your NtK it doesn't mention pofa 2012 or keeper liability does it? So that being the case they can only go after the driver. But being scammers they like to mix it up and want it all ways, legally the keeper is not liable, but they will make it look as if they are.

So what it means is that they do whatever the hell they feel like! But we on here has seen just about everything they do so know how to react to them.

Truckert_2

Thanks Storma,

No I don't think it mentions pofa 2012 but to be sure I shall read it again once in from work and will quote the PCN for everyone to have a look at.

Thanks,

Truckert_2

Ok I have had a look at the PCN and it states as follows:

PARKING CHARGE NOTICE

Notice is hereby served to the registered keeper of vehicle registration mark ******* For the alleged contravention of O2-Dropping off / Picking up outside of a designated parking area.

It states that:

The alleged contravention is a BREACH OF THE TERMS AND CONDITIONS OF USE

looking at the three photos of the car it was stopped in the road for 3 seconds are they having a laugh !!!!!

I received this notice 18 days after the supposed contravention, is that fact relevant ??

Thanks
Truckert

Stroma

Yes they are having a laugh, so they must prove that you cost them whatever the ticket was, so if it was £90 it would be £30 a second. Obviously you haven't made them have a loss, and they would find it almost impossible to convince a judge that their genuine pre-estimate of loss was £90 or so.

So you need to appeal this using the template in coupon mads thread. Post via the post office with a free proof of postage.

Truckert_2

Thanks Stroma,

I will find the template adapt and send tomorrow - and keep everyone updated as we start the fight.

Truckert_2

rIs this the one Stroma ? if so I shall make my own and send

Dear {company name of this member of ''PPC World''},

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 amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass

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.

Yours,

Thanks,
Truckert

Stroma

That's the one to send