Appeal Rejected

Goodnews

Thanks Coupon-mad appreciate your help.

Redx - would you be happy for a pm of my response letter as per my earlier post? Thanks very much

Redx

I believe the forum is the place for these matters, for people to comment (or not) as they see fit

I believe that when the pm system is used for this that the person receiving the pm feels obligated to respond so is in effect pressurised into responding whereas it should be a free will reply with no pressure at all

so no, I do not appreciate pm,s like this and I always rebut any pm like this telling the member to use the forum , so it may end up with my pm box being made "full" in order to stop these pm,s of which I have already had a few this week, all blanked

people are volunteers here with enough to do and also have a life

so I respectfully decline your offer , but I may (or may not) reply to your posts as I see fit, if I feel I have something to offer

if you wish for professional help, then go to parkingticketappeals and pay for the specialist help they offer

Goodnews

Thanks Guys Dad.

Just read your post. Would you be happy to have a quick look at my response by pm (trying to keep it private so the PC wouldn't make a quick link, probably would eventually I guess)

Goodnews

Thanks Redx, appreciate and fully understand your response.

Goodnews

Thanks All.

Have decided to publish my intended response to the PC. Comments welcomed. Thanks for all contributions so far.

letter....

Dear ....

Parking Charge Notice (PCN): XXXXXX
Vehicle Reg: XXXXXXXX
Date of Issue: xx/xx/xxxx


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 particularly in respect of providing POPLA code to allow a resolution via that route.

Excel parking cited POFA 2012 on the PCN/NtK issued on XXXXXX for an alleged contravention date cited as XXXXXXX. As the PCN/NtK did not arrive within the statutory period, therefore keeper liability cannot be applied.
Having failed to meet POPLA 2012, and in the absence of having established who was driving that day, and your late Notice to Keeper, you have no recourse to keeper liability. As such there is no cause of action against myself as the registered keeper. I will be complaining to the BPA since you have stated that the keeper is liable in a case where (had you checked your dates, perhaps you would know) this is legally impossible without the POFA 2012 to rely upon.

I would mention that I am an unrepresented individual. Of course I 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. 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. 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.

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.

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.


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.

Sincerely

Guys_Dad

Goodnews wrote: »

Thanks Guys Dad.

Just read your post. Would you be happy to have a quick look at my response by pm (trying to keep it private so the PC wouldn't make a quick link, probably would eventually I guess)

Send it and I will reply tomorrow.

ampersand

Always, less is more. Conduct such correspondence in the 3rd person wherever feasible. I suggest:
#
Parking Charge Notice (PCN): XXXXXX
Vehicle Reg: XXXXXXXX
Date of Issue: xx/xx/xxxx

[Date]
To Whom It May Concern

Your letter, dated [date] was received on [date].

It fails to address the points in my letter of [date[some July date between your correspondnce items 3 and 4, I have to assume]. Further, I note you have again refused to supply a POPLA code[even though you now realise you are not legally entitled to one at any stage beyond Day 28 after PCN - as per redx and c-m a number of times]

PCN/NtK issued on [date] by Excel parking cited POFA 2012, but as the date of the alleged contravention was[date] this document did not arrive within the statutory 14 day period, therefore keeper liability cannot be applied.

Because you have failed [a] to meet this POFA 2012 requirement to establish who was driving at the time of the alleged contravention [c]to send a Notice to Keeper in the permitted time, you have no recourse to keeper liability. Therefore, you have no cause of action against the registered keeper.

A copy of this letter forms part of my simultaneous complaint to the BPA[make sure you do send it,gn] since you again wrongly assert that the keeper is liable.

You know this is invalid without the POFA 2012 to rely upon.

Despite this, you continue to ratchet up threats and demands for money, knowing your own cited dates disqualify such action.

I look forward to hearing from you within 10 working days[insert date] with confirmation that this matter is not proceeding.

Yours faithfully,[always for a business letter, which this is]
GoodNews, esq.,
[address]
#

Coupon-mad

I think this needs tidying by removing the bits in red which aren't quite right or relate to Parking Eye still!:


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.

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.

Guys_Dad

It is POFA 2012 not POPLA 2012.

ampersand

Aha, GD - you have just won &'s Spot The Deliberate Mistake, now corrected.