Formal Demand - Help please

angry_and_skint

I sent them an email saying that and they have reiterated that it clearly states on their formal demand that appeals will only be considered if the owner/driver declaration has been filled out. They have said that if I fill this out they will happily pass it onto their appeals people and if necessary a POPLA code will be generated.

There is a tick box on the formal demand and one of them says
- To the best of my knowledge the owner/driver (delete appropriate word) of the vehicle is the person name below:

I just followed advice on here and sent an appeal letter without filling that out... But should I have filled it out as the owner in the first place?

Redx

so you STILL have not complained to the BPA by email attaching copies of all documents and alleging a breach of the BPA CoP and jan 2014 newsletter due to these PPC demands about naming owners or drivers ?

why ask for help if you do not follow it ?

PPC,s beat around the bush all the time, which is why we need as many people as possible to report code breaches to the BPA and the DVLA

its only one email and a few attachments for gods sake !! how hard can it be ?

and how many more times do you need telling ? (I count about 4 times so far in this thread, from at least 10 days ago)

frankly, I am now half your username (the first half) - hopefully never the second half

angry_and_skint

After gaining a POPLA code i have drafted my appeal. Any constructive criticism would be welcome....

many thanks in advance.


Dear POPLA adjudicator,

I am the registered keeper and I deny all liability for this charge due to the following points:



1) The charge is not a genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Armtrac Security Services (Armtrac) must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused, therefore Armtrac have no cause of action to pursue this charge.

I would like to see a full breakdown of the costs incurred by Armtrac as a result of the alleged breach. Armtrac have failed to provide a breakdown of the costs by the alleged overstay. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Armtrac cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Armtrac are likely to be paid by their client - so any such payment income must be balanced within the breakdown Armtrac supply and must be shown in the contract, which leads me to my next appeal point.

2) Breach of POFA 2012

The Notice alleges an incident on

---

and if Armtrac had wanted to establish keeper liability under the POFA 2012 they were duty bound under the Act, to ensure that a compliant Notice to Keeper was served between day 29 and day 56. Clearly, to send the Notice in the post, a full 70 days later is fatally late. As Armtrac have not met keeper liability requirements POFA 2012 does not apply. They can therefore only persue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As Armtrac have neither named the driver(s), nor provided any evidence as to who the driver(s) was, I submit I am not liable to any charge.


3) Legal capacity to issue parking charges

Armtrac have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drivers charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Armtrac do not have the legal capacity to enforce such a charge.

I require Armtrac to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

3) Photo - Inaccuracy

I require the Operator to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any images. This is important because the entirety of the charge is founded on two images purporting the overstay.

4) Non-compliant signage

Upon visiting this site I see that the signs in this car park are very small and high up. This makes it difficult for any driver entering this car park to see, read or understand them. There are very few Armtrac signs. The signs, consisting of red text on a white background, are not prominent enough to create a contract with the driver.


5) Unfair terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:


'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A small sign of terms placed too high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

6) Code of practice breach

Upon receiving my initial appeal letter, Armtrac rejected this but however failed to supply a valid POPLA verification code. They stated that I must provide driver details before this would be provided. After a further email to the company they were not prompted, and it took a complaint to the BPA for them to provide this. A clear breach of the BPA CoP.



Due to all points stated, I therefore respectfully request that my appeal is upheld and the charge dismissed.


Yours,

Dee140157

Hmm, is well on its way there, but a few things need ironing out. Due to touch of insomnia this is a silly time of the morning for me, and I can't thinks straight , but this does need a little work. Will pop back tomorrow with ideas.

ampersand

angry and skint - your simultaneous response should have been as Redx, dee, and c-m have spelt out in #15, 17, 19, 20, 21 and 23.

Please don't feel letters like these are too difficult to cope with. You are much more likely to shorten the whole process once the scumpany knows you are onto them and are involving higher powers! [for all that the BPA is just a toothless trade org. umbrella - they have to be seen to be 'policing' their own]

I have i/net trouble so cannot plonk the address/template details here at once, but will search them out for you.

It's really not hard to copy, cut, paste! :-)

HO87

+1

Withholding a POPLA code and, effectively, demanding driver details in return for one is a clear breach of the Code of Practice.

Send a copy of the original windscreen ticket and a copy of the letter from Armtrac to Steve Clark, Head of Operational Services at the BPA - Steve.Clark@britishparking.co.uk - together with the following:

Dear Mr Clark

Complaint - Armtrac PCN No. XZXZXZXZ, breach of Code of Practice.

On <date> I appealed the issue of the above notice to the issuers, Armtrac, a member of the BPA Approved Operator Scheme.

Subsequently, I received a response to that appeal from Armtrac and a copy of it is attached for your information.

At paragraph X you will see that the Armtrac have made it very clear that unless and until I provide them with the details of the driver of the vehicle involved in the matter they will not provide a POPLA code. Having rejected my appeal and being signatories to your code of practice they are obliged to provide the code without setting conditions such as requiring the provision of driver details.

This is a clear breach of the code of practice and I therefore bring this to your attention. Please let me know what action you have taken.

Yours sincerely

angry and skint

DollyDee_2

"Upon receiving my initial appeal letter, Armtrac rejected this but however failed to supply a valid POPLA verification code. They stated that I must provide driver details before this would be provided. After a further email to the company they were not prompted, and it took a complaint to the BPA for them to provide this. A clear breach of the BPA CoP."

I think he has complained.:)

HO87

DollyDee wrote: »

"Upon receiving my initial appeal letter, Armtrac rejected this but however failed to supply a valid POPLA verification code. They stated that I must provide driver details before this would be provided. After a further email to the company they were not prompted, and it took a complaint to the BPA for them to provide this. A clear breach of the BPA CoP."

I think he has complained.:)

Its gratifying to see that some here are actually reading - not scanning like the rest of us. I consider myself duly admonished.

Coupon-mad

This POPLA appeal will win anyway because the NTK was fatally late - it's not arguable by Armtrac. They are stuffed!

angry_and_skint

Many thanks for the replies!

Yes I did complain to the BPA and was waiting on them investigating. I now have the code to appeal

Do you think this is good to go then? Any Edits required?

I will send it off ASAP and hope for a positive response (fingers crossed!)

I have been dreaming about this recently... Think it's sending me mad!! Lol. Looking forward to having it out my hair!

Everyone's help on here has been gratefully received, I really appreciate it!