Company car in own spot

4stars

Afternoon chaps.

Found a CBC (Contractual Breach Charge) attached to my car in our allocated spot. I have dealt with this PPC before, however, always as the registered keeper.

My partners ‘Assured Shorthold Tenancy’ grants us the right of ‘quiet enjoyment’. Flat and parking space is named as ‘the property’ and no mentioning of permits whatsoever. Long story short, management agency must have brought in a PPC introducing silly rules at some point.

Strongly worded initial appeals have seen them off in the past and I like to keep it that way. Though, if they are daft enough not to cancel, I am happy to cost them the POPLA fee.

Any amendments/suggestions to below wording are more than welcome.

I am appealing as keeper of the vehicle at the time against the parking charge on the following grounds:

1. The tenancy agreement made no mention that the peaceful enjoyment of my property was subject to the conditions imposed by a third party with whom I had no contract. Furthermore, in placing your ticket you were trespassing against our property. I do not believe that your company has sufficient interest in the land to grant you the right to form contracts with drivers and pursue charges in your own name in the courts; and

2. The sum claimed is not a 'genuine pre-estimate of loss' in any way, shape, or form.

In the circumstances I expect you to cancel this charge. If you refuse to do so, then you must send me a verification code in order for me to appeal to POPLA.

Any further correspondence without a POPLA code will be treated as harassment.

Yours faithfully

This tread (consumeractiongroup.co.uk/forum/showthread.php?377246-UKCPS-liable-for-trespass ) handles a similar case. Can somebody point me to case name and number?

Many thanks.

Redx

maybe change the details to keeper and not driver ? (not RK, just keeper)

have a read of post #14 here https://forums.moneysavingexpert.com/discussion/5018724

it may be what you were looking for ?

The_Deep

Why appeal, why not challenge them to take you to court, as did Roger Davey whose case you reference.

http://www.5pumpcourt.com/member/Roger_Davey

The_Slithy_Tove

Looks good for an initial appeal. Clearly you know the ropes, and know what to do if they reject the appeal.


A small change, though, to your letter. Don't mention it's a company car. Some of the less scrupulous PPCs (i.e. just about all of them) may take that admission as an excuse to pretend they never received the appeal (happens all the time), and go after the registered keeper instead, where many lease companies will cough up without question. Therefore simply say "I am appealing as keeper of the vehicle at the time." (Keeper is not the same as registered keeper, and simply says you were looking after the car at the time, and that way there is also no admission as to the driver.)


You may have more trouble over the trespass thing, as you are not the actual owner. However, as a shorthold assured tenant you have pretty much all the rights that an owner or even leaseholder would.

The_Slithy_Tove

The_Deep wrote: »

Why appeal, why not challenge them to take you to court, Roger Davey did

http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

Er, did you see the OP's last paragraph :-)

The_Deep

Yes, that is why I gave him the link to Mr Davey's practice.

(My edit crossed with your post).

4stars

Thank you all for your replies.

Good thinking Redx, I'll change it to keeper. Gives me the possibility to challange their non-compliant windscreen ticket if it goes to POPLA.

The Deep. Thank's for the link. Challenge them in court would be a last resort and at the moment I am not interested in taking it to that level.

I'll name and blame the PPC once cancelled/won at POPLA.

Cheers.

4stars

Update #1
PPC is playing by the rule acknowledging my appeal stating an answer can take up to 35 days containing a POPLA code if denied.

Update #2
Not so bright PPC employee confuses vehicle registration and notice number. Case is now closed since payment has been received.

I do not intent to make them aware of their mistake. I would rather send them another letter after 35 days telling them that I have not received an answer within the given timeframe. Kind of, close the matter or provide valid POPLA code.

Any suggestions?

Dee140157

Ooh sounds like some poor person has paid invoice and it has been credited to you. Oh dear. They won't be happy when it gets followed up!

Coupon-mad

Update #2
Not so bright PPC employee confuses vehicle registration and notice number. Case is now closed since payment has been received.

I would be worried that some twonk of a Fleet Manager has paid it at your company or the lease firm and soon you'll hear they think you should pay out of your wages. If PPC sent a letter to the registered keeper (lease or company) they might have just paid it on the excuse that your company car policy 'allows' them to pay 'fines' (this isn't a fine of course - BUT cases like this happen all the time with lease/company cars). Hope not! For one thing as you have appealed the PPC is NOT allowed to pursue it with letters whilst the appeal is underway - and had no reasonable cause to get the keeper's data at all from the DVLA.

This could be a complicated case of complaints all round...

4stars

update #3
Many thanks, Coupon-Mad.

They did not contact the lease company and finally my appeal got rejected. Does not come as a surprise, however, I now have the opportunity to appeal to POPLA (valid for another 2 weeks).

I already covered 'The Charge is not a genuine pre-estimate of loss' and 'Lack of standing/authority from landowner'. I would be grateful if somebody can advice on wording and point me into the right direction for:

- Not compliant 'Notice to driver'
- Anything the regulars can spot from the signs

Links:
s13.postimg.org/e96riholj/IMG_0170.jpg
s13.postimg.org/eur50uu9z/IMG_0171.jpg
s13.postimg.org/xprh50jpj/IMG_0172.jpg
s15.postimg.org/pyakk3r97/Windscreen_Notice.jpg
s15.postimg.org/mc4r7gkvv/Windscreen_Leaflet01.jpg
s15.postimg.org/4nd0fu94r/Windscreen_Leaflet02.jpg

POPLA Reference Number:
Vehicle Reg.:
PPC: Ethical Parking Management
PCN Ref:
Date of PCN:

Dear POPLA,

I am appealing as keeper of the vehicle at the time against the parking charge on the following grounds:

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

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

Ethical Parking Management cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis) POPLA Assessor Chris Adamson has 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) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this area and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges in their own right.

I require Ethical Parking 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 on this road. 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.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

The wording is adapted from:
forums.moneysavingexpert.com/showthread.php?t=5041114
forums.moneysavingexpert.com/showthread.php?t=5046331

Many thanks.