Appeal Rejected

Coupon-mad

Goodnews wrote: »

the contravention was back in April, but my appeal letter to them was in July.

Obviously too late for a POPLA code then...not sure why you expected one? Appealing late doesn't normally get a POPLA code out of a PPC, it just shows them you aren't ignoring them and that you are getting advice on a parking forum so won't be a pushover! Hopefully makes them file your case or just pass it to debt collectors to send letters...and then more letters. Which is the norm and means nowt.

does this mean there is no way out of the situation? Just haven't got £100 at all.

No-one told you to PAY! Where does the Newbies thread tell you that, it doesn't?! You were too late to appeal but you tried, OK so now you are in ignore mode because you missed POPLA. Big deal, same advice as ever! What do you think we all did before POPLA existed?

https://forums.moneysavingexpert.com/discussion/comment/66076711#Comment_66076711

You are just ignoring the scam like people did in their thousands, before POPLA existed just 2 years ago and before. You missed a trick that's all. Come back if they try court but please don't post about every tedious template debt collector letter in the chain from Debt Recovery Plus, Zenith or Rossendales since the newbies thread already tells you all there is to know about ignoring those letter chains, no need to ask about them, they've hardly changed in five years and more! Only take seriously actual court papers or a Letter before Claim from Excel themselves.

They don't try very many small claims and are fairly easy to beat as well so small claims court would be unlikely but no biggie. Keep all letters in a file for a few years as sometimes Excel send very late debt collector letters later on (years later, after a big gap) and of course like any alleged debt a firm 'could' try a small claim up to six years afterwards.

ampersand

op - my ? remains unanswered, not that it matters in the scheme of things.

Was this, by c-m 'You are just ignoring the scam like people did in their thousands, before POPLA existed just 2 years ago and before. You missed a trick that's all.' the answer, or had you some other reason for not acknowledging it?

op's post 21 may represent a fear/lack of cash that greets all unknown source 'window envelope' mail.

op - redx and c-m are tireless helpers here. Please open up to them a little[even by pm, if they don't mind] and be guided by their expert, always current knowledge.

Also, read Parking Prankster's blog, for a sense of reality and proportion and Truth about these scumpanies:
http://parking-prankster.blogspot.co.uk/

You'll laugh too, which I think you need.

Goodnews

Thanks Coupon-mad, and ampersand.

ampersand - in answer to your question, yes I ignored the first Parking Charge Notice.

This is a postal PCN. To date I have received four items of correspondence as listed below in order of receipt using fictitious dates.

Date of contravention 13th April 2014
1) Parking Charge Notice - dated 30th April 2014 (17 days from date of contravention)
2) Liability Notice - dated 4th June 2014
3) Notice of Intended Court Proceedings - Dated 16th July 2014
4) A response letter (the rebuttals) dated 4th August 2014. This letter was in response to my letter requesting an appeal and POPLA Code.

Wordings of my letter similar to below....

Dear

This is an appeal against the charge issued to the vehicle with the registration ???????? charge reference ?????????.

It is the registered keeper’s assertion that:

1. The charge is not a genuine pre-estimate of loss.
2. The sign-age does not conform to the BPA CoP to which Excel Parking has committed.
3. Excel has no authority to issue charges over the land in question.

This charge is rejected therefore. You should now either cancel said charge or provide a POPLA code for the registered keeper to appeal to the independent adjudicator.

Any further correspondence other than confirmation of cancellation or a POPLA code will be considered harassment and could result in legal action being taken against you.

Sincerely,


Please correct me if wrong I think I may have read somewhere that the PCN should be received no latter than 14 days from the date of contravention. In this case there are 17 days between contravention date and PCN date.

Hope this is clearer. Thanks for your help.

Goodnews

This a letter (slightly amended) that I intend to send. However I am not certain that the costs quoted in reference to POPLA resolution are still the same.

I'll appreciate your advice, thanks very much for your help.

Letter...


Dear ....

Thank you for your recent letter referencing the outcome of the case of Parking Eye v. Kelvin Shelley 2013. I must inform you that this is most n unhelpful and frankly misleading response which does nothing to address my previous points.

I would mention that I am an unrepresented individual and your disdain for my situation when the driver was a customer of your principal, will be brought to your client's attention as part of an ongoing complaint.

Of course I still await a list or sight of the actual documents you intend to rely on in court and a considered response to my individual case.

As you are aware, the Practice Direction states the entity intending to take me to court must provide a list of the documents that will be relied upon to establish a cause of action and a claim. As a parking company which is routinely involved in litigation and which has an in-house Solicitor, you must know what these documents are - and I am entitled to be told what those documents are, and ideally I should be shown them at the earliest opportunity.

From your recent template letter and the previous Notices it is clear that:

a) Your charge is for an alleged (your words) 'breach of the terms and conditions' and yet clearly it is not a genuine pre-estimate of loss. As such, this is a breach of the BPA Code of Practice. As no loss has been established whatsoever, this charge is also unenforceable in contract law and indeed the Office of Fair trading stated to your Trade Body 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. Parking charges cannot include tax-deductible business costs for running a parking company, such as site signage and maintenance, staff employment, membership fees, postage, etc. It should not be recoverable as it is being enforced purely as a penalty. Since there is no other income at this site, PCNs for alleged 'breach' represent the only profit for Excel Parking and it is clear that you cannot be operating at a permanent loss. The fact that the 'charge' is fixed at the same cost, whether the allegation is a serious matter of obstruction or a trifling matter (such as a few minutes perceived overstay) shows it to be merely a penalty where no loss exists.

b) Your charge has no 'commercial justification' because it is punitive, relies on obfuscation by a mere agent with no standing nor authority and it is not in the legitimate interest of your principal to proceed. A complaint has already been lodged with your client and will be escalated if you do not cancel this charge. POPLA are not accepting your spurious 'commercial justification' argument and I expect a court Judge to see through this too.

c) The driver was a genuine customer and yet you have never made it clear that this would have exempted them for any charge, if they had known your secret 'user manual' terms in the landholder contract. This is a misleading omission - an unfair, hidden but vital term which must be communicated at the point of alleged contract - and therefore any alleged contract causing loss or detriment to me is unenforceable.

d) I consider there is reasonable doubt that you have written authorisation in place with the landowner, specifically allowing you to form contracts with drivers and to pursue unpaid charges to court in your own name. I believe your contract has clauses similar to the contract in ParkingEye v Somerfield where ParkingEye were a mere agent. This is confirmed by the recent lost court claims in ParkingEye v Gardam and ParkingEye v Sharma, where the District Judges scrutinised ParkingEye’s basic contract and found ParkingEye to be an agent with no standing. Clearly I will require sight of your unredacted contract to make an informed decision about my position, prior to any proceedings and I will consider the fact you are withholding this vital information as proof of inherent flaws in your case. A witness statement will not suffice and will no doubt raise more issues, as it has done in recent cases ParkingEye has lost or been forced to drop, e.g. ParkingEye v Walkden, ParkingEye v Byrne and ParkingEye v Barrett.

e) Your signage is not sufficient to create a contract between Excel Parking and the motorist because it is unreadable, being placed eight or nine feet up on a pole, far too high to be in a driver's line of vision on arrival, before parking. Not only does this, once again, breach the BPA Code of Practice on mandatory entrance signs but it fails to create any contract at all when a driver does not see the terms before parking, as in this case.

Resolution of the Dispute - ADR (POPLA)
I would suggest that this matter is resolved using the bespoke ADR for private parking, POPLA. The above points a) - e) can be considered to represent my appeal points in order to prompt a rejection letter and POPLA code now. If we use POPLA, as you are aware your costs will be a mere tax-deductible £27. If you use the court, then you will incur further costs, including £15 filing fee, £25 hearing fee, and approximately £250 as costs payable for your legal representative from LPC Law or other firm.

Failure to agree to my offer of both parties abiding by a POPLA decision would be evidence of Excel Parking failing to mitigate your alleged loss which I will draw the court's attention along with your unreasonable delay. I will also invite the Judge to apply the principle of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 regarding costs.

If you reject this resolution and proceed to court I will robustly oppose any costs over £27 and will in my first defence statement, ask the court to stay the case and insist on a POPLA decision instead. I am aware that in many cases in the public domain, Excel Parking has issued POPLA codes much later than your self-imposed 28 days guideline and indeed POPLA have confirmed that a code can be issued by the operator at any time. The 28 days is merely a time limit that starts when the code is generated and sent to the motorist and I will state this fact to the court if Excel Parking suggest otherwise.

There is a current compelling initial order, as you know, in the Croydon County Court where a similar claim by ParkingEye has been stayed by order of the court and you have been required to issue a POPLA code instead. I will point that out to the court at the earliest opportunity along with your refusal to mitigate your loss and consider the obviously appropriate ADR.

Please do not send me a generic template letter which does not address my requests for information because I shall send all correspondence to the Solicitors Regulation Authority and ask it to investigate your breach of the Principles set out in the SRA Handbook version 8, published on 1st October 2013.

I look forward to hearing from you within 14 days with either:

- the documents you intend to rely upon in these proceedings including your unredacted landholder contract and user manual, or

- a rejection of points a) - e) along with a POPLA code, or

- confirmation that this matter is not proceeding and the charge is cancelled.

Redx

Goodnews wrote: »

Thanks Coupon-mad, and ampersand.

ampersand - in answer to your question, yes I ignored the first Parking Charge Notice.

This is a postal PCN. To date I have received four items of correspondence as listed below in order of receipt using fictitious dates.

Date of contravention 13th April 2014
1) Parking Charge Notice - dated 30th April 2014 (17 days from date of contravention)
2) Liability Notice - dated 4th June 2014
3) Notice of Intended Court Proceedings - Dated 16th July 2014
4) A response letter (the rebuttals) dated 4th August 2014. This letter was in response to my letter requesting an appeal and POPLA Code.

Wordings of my letter similar to below....

Dear

This is an appeal against the charge issued to the vehicle with the registration ???????? charge reference ?????????.

It is the registered keeper’s assertion that:

1. The charge is not a genuine pre-estimate of loss.
2. The sign-age does not conform to the BPA CoP to which Excel Parking has committed.
3. Excel has no authority to issue charges over the land in question.

This charge is rejected therefore. You should now either cancel said charge or provide a POPLA code for the registered keeper to appeal to the independent adjudicator.

Any further correspondence other than confirmation of cancellation or a POPLA code will be considered harassment and could result in legal action being taken against you.

Sincerely,


Please correct me if wrong I think I may have read somewhere that the PCN should be received no latter than 14 days from the date of contravention. In this case there are 17 days between contravention date and PCN date.

Hope this is clearer. Thanks for your help.

if they are citing POFA 2012 then the pcn has to arrive by day 15 as the contravention day is day zero, if they fail to meet POFA 2012 then you can use this as an appeal point if they try to use it against the RK becasue only the driver is liable and you are not compelled to name the driver

so this would act as a defence in any future proceedings, also if you were to be able to use popla

so arrival by day 17 is too late for POFA 2012 to apply , but I hope that the dates on their letter etc also show that it arrived late, as it is deemed to have arrived 2 days after posting , so lests assume they posted it on day 15 and it arrives on day 17 , then its too late for POFA 2012 to apply

if its dated on day 17 then its deemed arrived on day 19 so this should have been quoted as an appeal point in the initial appeal, plus any subsequent letters

Bender000

Looks like you and me in the same boat buddy. I didn't get their first letter so now coupon-mad thinks they wont give me a popla code (showthread.php?p=66253539#post66253539).

Coupon-mad

If it was dated on day 17 then even if it was posted 1st class that same day then it is only deemed to be served 2 working days later (Friday 2nd May which is day 19). So yep, they sent the NTK far too late for keeper liability.

But your response is far too ParkingEye based, makes no sense in some places for Excel:

- I would remove the references to ParkingEye in your point d.

- And remove this which is the firm ParkingEye use in court!:

''and approximately £250 as costs payable for your legal representative from LPC Law or other firm. ''

And remove this bit as it's about PE:

''There is a current compelling initial order, as you know, in the Croydon County Court where a similar claim by ParkingEye has been stayed by order of the court and you have been required to issue a POPLA code instead. I will point that out to the court at the earliest opportunity along with your refusal to mitigate your loss and consider the obviously appropriate ADR.''

and remove this bit, same reason:

'' Please do not send me a generic template letter which does not address my requests for information because I shall send all correspondence to the Solicitors Regulation Authority and ask it to investigate your breach of the Principles set out in the SRA Handbook version 8, published on 1st October 2013.''

I would focus much more clearly (and concisely) on the simple fact that in the absence of Excel having established who was driving that day then their late Notice to Keeper has lost them any chance of keeper liability. As such there is no cause of action against you, and you will also be complaining to the BPA since Excel have said that the keeper is liable in a case where (if they'd checked their dates) they would know this is a legal impossibility without the POFA 2012 to rely upon.

And send an email complaint to the BPA as per post #6 of the Newbies thread.

tna wrote: »

Looks like you and me in the same boat buddy. I didn't get their first letter so now coupon-mad thinks they wont give me a popla code (showthread.php?p=66253539#post66253539).

You can reply to Excel in a similar way and say no NTK was served at all...etc....so no keeper liability, no cause of action established, etc. And complain to the BPA if Excel refuse to send you a copy of the supposed NTK.

Goodnews

Thanks very much Coupon-mad, and Redx.

I'll make the amendments on the letter. So grateful!

The PCN cited POFA 2012. The PCN issue date is clearly 17 days from the contravention date, taking contravention date as day 0. Allowing 2 days for the post means PCN arrived 19 days after contravention date.

I'll now include this fact in the letter i.e failed to meet POFA 2012. Hope this would put a full stop to the issue!

Coupon-mad - Would you be happy form to pm you my response for a once over pls. I am more than happy to share publicly after I have sent it off.

Thanks all.

Guys_Dad

The out of time is the main point here. Make it number 1.

Our other appeal points are "technicalities" if you like, and in court sometimes win, sometimes lose.

But out of time is a no dispute, POFA requirement. Don't follow it, PPC, and you lose keeper liability. It's in POFA in black and white.

In fact, that's all you really need to win, but you can add the other points as back up

Have a look at post #45 here for wording you can adapt.

https://forums.moneysavingexpert.com/discussion/4929266

Coupon-mad

My pm box is still full right now deliberately as I only got back from holiday last week and am busy at work some days this week too (Exam results for some of my students at the school connected to the one I work at!). Sorry I am off pm's for a while!