Parking charge notice issued - can I appeal?

hatters14

Hello again, no I have not received a NtK however, having read the Newbies thread it does suggest that if it is a small Parking company to send first stage of appeal and then we wait for the Ntk. I

Yes, I realise getting the colour incorrect in going to be irrelvant but I thought the fact the signs are so far away and one has been defaced plus the location of the car in incorrect would be relevant.

I will add the additonal clause as well. Thank you Dee.

Can I just confirm that at this atage I just send the letter without any photographic evidence and wait for the NtK?

Thanks in advance

Redx

errr, no it doesnt

you should be awaiting the NTK before appealing as the RK (or getting the RK to do it)

there are some parking companies where we tell people to send the appeal after day 21 to avoid the debt collector letter chain as some do not send out an NTK, so you could get the RK to do this as RK after day 21

who faff about sending debt collector letters and don't even send a NTK.

if you do this before getting an NTK (ie:- not waiting for the NTK to arrive between day 29 and day 56) you will not get an NTK, period !

read the paragraph again in post #1 of that newbies thread entitled

Appealing a fake/private PCN (England & Wales ONLY)

so it actually says send the appeal after day 21 and await the decision on your appeal (no NTK will come if you appeal it , but even if you dont appeal it they probably wont send an NTK anyway, even though they should do)

I would save your ammunition like signage etc for popla (so just the template letter, no photos) after day 21

OR

you wait for the NTK to arrive sometime after day 29 (or not if they never send it)

any debt collector letters after day 28 will more or less prove no NTK was issued

hatters14

Thank you for brinig this to my attention as I misunderstood.

So now I just wait for hte NtK to be send to my husband and do nothing at this stage?

What if I do not hear from them?

Does anyone know anything about this Company. I could find nothing when I did a search for people who had invoices attached to their windscreens....

Redx

hatters14 wrote: »

Thank you for brinig this to my attention as I misunderstood.

So now I just wait for hte NtK to be send to my husband and do nothing at this stage?

What if I do not hear from them?

Does anyone know anything about this Company. I could find nothing when I did a search for people who had invoices attached to their windscreens....

if you do not hear anything at all over the next 6 years, its game over for them

if the RK gets a debt collector notice, come back for advice and tell us how many days after this event it happened

if the RK gets the NTK, then again come back and tell us how many days after the event it was, if POFA 2012 is being cited etc

if POFA 2012 is cited and the NTK fails to meet the criteria, the RK isnt liable and does not have to name the driver (I could have been driving the car that day , lol) - so we deal with that issue at the time it happens

so standard advice is wait for NTK , if no NTK arrives but a DC letter arrives, it is treated as the NTK and the RK sends the PPC the template letter , also complaining that no NTK was issued and to call the dogs off

so what happens next is down to them , they set the kickoff time, the place and they think they set the rules, until we point out their flaws at the time they make them

hatters14

Great.

I am away for the next few weeks but will address this on my return.

Thank you so much all for your assistance to date!

Will keep you updated.

hatters14

Hello again, I have now received a letter from PCS addressed to the RK. Dated 17th September received on Monday!!!!!

They have advised me that they have issued a parking charge under Section 4 of the PoFA 2012. They are INVITING the RK to pay or to name the driver.
As mentioned before, the location of the vehicle is incorrect. Only the road has been mentioned, no post code. The vehicle was actually parked in a bay of the road that is mentioned and not on the actual road listed.

The signs are some distance from the space and there are no signs as the entrance of the parking area advising that tickets will be issued. Not only this the sign at the far end of the parking states the fine amount is £100.00 and the letter is asking for £110.00.

Having referred to the NEWBIES and the PCN flow chart I wanted to check that /i should send the letter suggested in the template as follows:


Dear P


PCN number xxxxxxx

I have received your parking 'invoice' impersonating a parking ticket. I decline your invitation to pay or name the driver, neither of which are required of me as the keeper of the vehicle. This is my appeal and all liability to your company is denied on the following basis:

A) The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss to your company or the landowner.
You are not the landowner and do not have the standing to offer contracts to drivers nor to bring a claim in your own right.
C) Your signage was not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract formed. There was only one sign and one further defaced sign in the entire car park which was not visible unless walked through the entire parking area. There is no signage at the entrance of the car park advising that permits are required or that penalties may be issued. Furthermore, both signs are located in a refuse area . There were no other signs either when entering or leaving the premises advising motorists of the Terms & Conditions. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not your customers and are not parties of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

D. Non-complaint NTK. The offence never occurred. The driver was not parked on St Andrews Road. The driver was parked in a bay in a small private car park of St Andrews House that leads onto St Andrews Road. So the offence as stated did not occur.

As you have failed to create any enforceable contract I suggest that you cancel this unjustified 'ticket'. If not, under your Trade Body's current Code of Practice you must issue a rejection letter which, in order to answer my appeal, must include:

1. The legal basis of your charge, which is not clear (i.e. breach, trespass or contractual fee?). As keeper, I cannot be expected to guess the basis of your allegation.
(i) if alleging breach of contract, please supply a breakdown of your alleged 'loss' and state the intention of your enforcement (i.e. deterrent or revenue?).
(ii) if alleging trespass, enclose evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the landholder.
(iii) if alleging 'contractual fee' I request a VAT invoice by return and your explanation of how you can allow drivers to park 'in breach' for a fee when your client originally contracted you in order to disallow and deter - not allow and profit from - unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal). Should you try to rely upon ParkingEye v Beavis & Wardley at independent appeal stage, I will of course point out that it was a flawed decision at small claim level so is not binding, and Mr Beavis is continuing his defence to the Court of Appeal. There is clearly no commercial justification for this punitive charge and no case law to support it.

2. Proof of your locus standi to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention. If you are not the landowner, I will need to see a copy of your contract, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client and the definition of your status as agents or contractors and your assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge your landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I will require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other party who is not the landowner.

3. Your explanation of the consideration that you believe flowed from the driver, and from yourselves. Consideration from both sides is required for a contract.

4. A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.

5. The means to make an appeal to POPLA or the IAS. This must not be withheld or delayed, which would be a breach of the Code of Practice.

If you fail to simply cancel the charge or supply the means to independent appeal in your first reply you will also be reported to your applicable ATA and the DVLA. A certificate of posting will be obtained for all written communications for this appeal and complaint and I intend to claim my costs when I prevail.

Redx

the up to date one is in post #1 of the newbies thread, whereas yours resembles the older and more wordy template letter

you can see the smaller one here in post #1

https://forums.moneysavingexpert.com/discussion/4816822

also, yours contains spelling errors, like complaint instead of COMPLIANT

hatters14

Thanks. So it states that this version does not require pruning. Should I still add that the location is incorrect?

Dear Sirs

Re: PCN No. ....................

I refer to the above notice which I challenge, not as driver but as keeper of the car, on the following grounds:

a). The sum sought does not represent a genuine pre-estimate of any loss and yet it is intended as a deterrent, so the charge is a penalty.
b). The signage on site is deficient, the wording unclear and it fails to comply with the Code of Practice.
c). In the absence of any evidence it is my case that you lack any or sufficient proprietary interest in the land.
d). Your notice was deficient and fails to comply with Schedule 4 of the Protection of Freedoms Act 2012.

This is my formal representation. There will be no admissions as to who was driving that day and no assumptions should be drawn in the absence of evidence. I have decided to appeal this as keeper and as such, you must either rely on the POFA 2012 or you must cancel the charge if you know you cannot claim keeper liability in this case. Please uphold this challenge or send a rejection letter, so I can escalate this matter to the independent appeal service offered by your Trade Body.

Redx

hatters14 wrote: »

Thanks. So it states that this version does not require pruning. Should I still add that the location is incorrect?

already answered on page one in post #18 and again in #20

hatters14

Thanks again for your assistance.