Ethical Parking Management - formal demand after selling car - plz help!

Coupon-mad

Any of the examples that are about windscreen ticket cases where the NTK was late/not compliant. I know there are a couple there you can adapt which have the extra paragraph about 'no keeper liability due to a late or non-compliant NTK'.

LaurenKPB

awesome thanks. I am determined not to pay this, despite pressure from my husband to write a cheque and be done with it!

Thank you so much!

HO87

LaurenKPB wrote: »

awesome thanks. I am determined not to pay this, despite pressure from my husband to write a cheque and be done with it!

Thank you so much!

If your husband is as easily satisfied as he would appear to be I wonder if he could slip me £80 because I asked nicely?

No? Thought as much.

Perhaps you might like to tell him that EPM have as much behind their notice as there is behind mine. What you have is not a demand (although they might use that word) and certainly not a f.i.n.e. What you have - in strictly legal terms - is an "invitation to settle". They claim the money is owed and have asked you to pay it. You are perfectly at liberty to decline their invitation and require them to prove that it is owed. The point will come where they will simply be unable to do so and that is what we are suggesting you work towards.

There is not a lot of hassle - save a bit of reading (so you understand where you are), and sending a couple of letters.

If hubby thinks this is hassle imagine what it was like for those of us who fell unwittingly into this trap a few years ago when there were no forums to help you out but we still didn't pay?

LaurenKPB

I'll ask him for you

Here is a letter that I hope will do the trick, any advice welcomed! I am not sure if I should include section 4 or not as the letters were all sent in the right timeframe, just not to the keeper of the vehicle (Sold same day as offence)


Parking Charge Number (PCN): XXXXXXXX
Vehicle Reg: XXXXXXXXX
Operator: Ethical Parking Management

I am no longer the keeper of the vehicle which was issued with a PCN for parking without a valid permit although I challenged this notice. I would like to appeal this notice on the following grounds.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
2. No contract assigning rights to P4Parking to enforce contracts with drivers
3. No contract formed by the signage
4. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012.


1. Not a genuine contractual fee nor genuine pre-estimate of loss
The demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. The Operator would have been in the same position had the parking charge notice not been issued. Ethical Parking Management notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event.

I require Ethical Parking Management to provide a detailed breakdown of their loss and on what basis this can be their loss at all, when the car was parked with a valid permit in the right bay. The Office of Fair Trading has stated to the BPA Ltd that ''a parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists''.

Neither can the charge be 'commercially justified', if Ethical Parking Management attempt that argument. POPLA Assessor Chris Adamson stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''


2. No contract assigning rights to Ethical Parking Management to enforce charges in the courts contracts or form their own contracts with drivers
The parking notice states that it has been served on behalf of the landowner. I assert that Ethical Parking Management does not have the legal status nor assigned right to pursue parking charge notices in the courts nor to make contracts with drivers. I therefore require Ethical Parking Management to supply:

• A copy of the current contract with the landowner (and if their contract is merely with another agent, then proof of the agreement of the landowner)
• A copy of the wording of the current permit scheme and the document where residents were advised which is the 'right way' to display permits

Furthermore, I require that Ethical Parking Management demonstrate that they have the right to pursue parking charge notices in the courts and to specifically make contracts with drivers in their own right, rather than this remaining the gift of this landowner. I am not merely asking for proof that Ethical Parking Management can 'issue PCNs' of course. Hence I need to see the contract itself, not a witness statement, not a site agreement sheet.


3. No contract formed by the signage
I submit that this signage failed to comply with the BPA Code of Practice section 18 and Appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. There is a lack of entrance signage at drivers eye level and the car park generally is not fully covered by signage at all bays.

Neither do the signs state in clear terms that a driver has to 'continuously display' a permit nor how to display it. There was no breach by attaching it to the inside front mirror since this is visible clearly through the windscreen. If this Operator wanted to impose a requirement to continuously display permits and where exactly to place them, and which way up, then they should have drafted their signage in clear terms to that effect. They did not. Equally they could have marked the permits to show which is the front and the back, so that people could not be accused of displaying the 'wrong side' - but they did not.

4. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012. This is on two grounds:
(a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at 15.51pm on the day in question.
(b) The Notice to Keeper does not identify the 'creditor'.

POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. As I was not the driver myself, there is no case against me at all so it is, at best, surprising and irksome that Ethical Parking Management are pursuing this matter. I expect POPLA will see the significance of an operator trying to pursue a keeper, in a case where no keeper liability can be established by virtue of the operator's own failures.

In view of the above, I contend that this is an unenforceable penalty and request that my appeal be upheld and the parking charge cancelled.

The_Deep

Why do you need Ethical Parking's permission to park in your own space? Does your lease/AST not grant you "quiet enjoyment" of your demised property? If that is so, then the PPC have no standing, and can be safely ignored..

What happens when you next forget your permit, or it falls off the windscreen? Have you read this?

https://forums.moneysavingexpert.com/discussion/4939352=

Coupon-mad

There was no breach by attaching it to the inside front mirror

Was there a permit hanging from the mirror? This was a template and I think this has been left in error from the other person's case?

LaurenKPB

well spotted, thanks! I will take that bit out. Other than that do you think it will do the trick?

Thanks Coupon-Mad

Coupon-mad

Well your top numbered points include this - ooops!


2. No contract assigning rights to P4Parking to enforce contracts with drivers


But the rest looks fine as long as, I suggest, you now proof read it as I have only skim-read it to check you have the valid points and have covered the usual bases.