some help pcn challenge

Coupon-mad

Hi again eddy.
As the rk was not the driver, then the rk has several defence points to do with non-compliance of the POFA 2012 to gather together, some as already mentioned.

Looking at that sign it is clear that this relates to 'a parking charge in the sum of £100, to be paid within 28 days of issue'. Therefore, that 'parking charge' (despite the name) cannot possibly be one and the same as the 'unpaid parking charges' which 'remain unpaid' at a time NOT LATER THAN the time of issue of the Notice to Driver. Those words are more or less the wording from Schedule 4 (check it). So under POFA 2012 schedule 4, keeper liability only applies in strict circumstances and that can only be a sum not greater than the defined 'unpaid parking charges' which existed and remained unpaid prior to the PCN (i.e. the small sum of a P&D tariff). The Schedule is mandatory for keeper liability, and the timelines are prescribed/specified - so a 'PCN' of £100 which only arises at a later time (only capable of being 'unpaid' after PCN issue) cannot be claimed under Schedule 4 even though SIP call it a 'parking charge'.

Also looking at that sign, it's a newish IPC version but in our view it is clear that (despite the word 'consideration' deliberately and misleadingly bunged in!) the 'parking charge of £100' is not consideration at all. For a start, a PCN arises in cases where people park on double yellows, hatched areas, pavements and grass (and the sign is clear that there is an expressly stated obligation NOT to park like that). Therefore a PCN for various parking behaviours, including parking without displaying a P&D ticket temporarily, in fact arises from breach not as consideration, because the driver parked 'otherwise than in accordance with the above'. That's another way of saying 'failure to comply' and makes it a disguised penalty clause applied 'in terrorem' as a deterrent. Which makes it unenforceable unless you are HHJ Moloney!

So the Unfair Terms in Consumer Contracts Regulations Group 18(a) at 18.1.3 applies:
"These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”

and at 19.14 it confirms that even what 'looks like' a price term has to meet the test of fairness (and transparency) in the Regs if it's punitive:

"The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term."


It's definitely a case of 'breach of contract by any other name' = if it looks like a duck and quacks like a duck, then...!

According to the drafting of the sign, only a certain section of motorists are offered the space (those listed under 'parking is permitted for'). This is further confirmed in the line 'retrospective evidence of authority to park will not be accepted' (i.e. some people are 'authorised to park' and the rest are NOT). The first group are the only people who have entered a contract and where consideration/acceptance has flowed between the parties. It would be a legal nonsense (and very possibly outwith the intentions of their principal) to further 'offer' a second group - who can only be considered trespassers - the 'right' to continue to trespass but for a fee kept by the agent.

Finally, I would write to or email the landowner (don't phone) and ask whether people without a permit or pay and display or electronic ticket are 'allowed' to park on site at all. Ask why the restrictions exist, why did they bring in SIP? And why no allowance is given to get change for a minute or two. The reason for such naïve questions is to try to eke out a written reply from the landowner where they admit the restrictions are there as a deterrent and that no, people are not allowed to park without a P&D ticket/permit etc.

eddy1

many thanks coupon mad


I will read and digest and swat up further on the comments that you have laid out, much appreciated.


I intend to use arguments identified, however with keeper admitting to being driver (mistakenly) can I still use arguments, and do I need to rescind this with PPC


I appreciate earlier PM comments re outing driver, but just wondering re above point


eddy

Coupon-mad

I think I would rescind and make clear that the rk was not the driver, that the rk is not going to name that driver as they don't have to, and so for the avoidance of doubt, if SIP try a small claim then they will have to prove keeper liability under the POFA 2102. Keep a certificate of posting of your letter, or email those facts.

eddy1

Hi This is the jist of the response from a complaint regarding request for keeper details from SIP parking

Drivers choosing to park or use a vehicle on private land do so, subject to the terms and conditions set out on signage at the entrance and around the car park. The need to contact individuals who may have failed to comply with these conditions is, in most circumstances, considered a reasonable cause. Data is provided by the DVLA to enable landowners or their agents to pursue their legal rights and to address disputes between parties.





I have, in conjunction with the Independent Parking Committee (IPC), investigated this case.





The IPC have confirmed with the operator that they claim the vehicle entered the private property at 09:13, was issued a parking charge at 09:27 and subsequently a ticket for parking was purchased at 09:33. The IPC have stated that they feel that the operator dealt with the issue of a grace period appropriately and no breach of the Code of Practice identified.

Both SIP Parking and the IPC are fully aware that DVLA data should not be requested if the identity of the driver of the vehicle is known; however, in this case both the DVLA and the IPC have reviewed all appeal letters and do not believe that that driver of the vehicle is made sufficiently clear.


Interesting that dvla state that individuals who fail to comply with these conditions is in most cases reasonable cause. surely this is an error, as this is virtually stating that if someone has not paid, even if they have appealed, that keeper details can be requested.


I will be taking this further


any comments would be appreciated


eddy

Coupon-mad

Keeper data can pretty much be requested by any AOS member on any jumped up excuse - get used to it! This is what the DVLA do with our data.

It's good that the PPC and their Trade Body are both saying the driver wasn't identified, if that means they are still pursuing the keeper. They would have to have established keeper liability under the POFA and their letters will have failed to do so.

Sit tight and ignore this unless you get court papers (you didn't yet, did you?). Get on with your life and KEEP all letters for up to 6 years in case you need to beat them like the other posters did in 2013 when SIP made a few pointless forays in small claims then changed their minds!

eddy1

thanks coupon mad


have complained to the ipc as well re their use of ias code of conduct statement, as it does not exist and ipc members have to be fully familiar with their code of practice


also information on letter from dvla incorrect as I can prove it, ipc and sip provided incorrect information to dvla, wonder how they will view that dvla


thanks again for reply


eddy

eddy1

no never got court papers
awaiting though
eddy

eddy1

Hi All


received MCOL papers from SIP re this case
can I just ask is an MCOL form the same as an LBCC form
e.g it has to set out all details of the claim and the evidence to which it intends to rely upon


excuse ignorant question but just wanted to clarify before I respond to this identifying that I intend to defend


eddy

Coupon-mad

MCOL will just show a very brief 'particulars of claim' and some figures. It should have been preceded by a LBCCC.

So we have helped people kick SIP into touch with court cases before, this shouldn't be any different. For now, register on MCOL and submit just that you will defend in full (not the detail, no defence yet). Then read the other SIP cases again from last year (or maybe the year before) when we helped with a small claims flurry from SIP. Just search the forum for 'SIP Court' to find them.

And read post #5 of the Newbies thread to see about how to complete the court forms, and what happens, example defences, a link to cases won, etc. Loads of links there to read, then show us your draft defence (you have 28 days plus service from the date on the court papers).

You can do this, it's defendable and doesn't risk anything if you lose, you can just pay and the amount 'in play' is likely to be around the sum shown on the MCOL form. No big Solicitors' fees or anything and you don't need a Solicitor either. Doesn't put a CCJ on the record if you lose and pay up straight away, and as I say we've helped in cases which SIP dropped like hot potatoes before!

Maybe reply with a nice summary for us to see the state of play here on this page:

- dates, detail of contravention, appeals done & what happened, did you ever imply who was driving, did you get a LBCCC, etc.

eddy1

Coupon-mad wrote: »

MCOL will just show a very brief 'particulars of claim' and some figures. It should have been preceded by a LBCCC.

So we have helped people kick SIP into touch with court cases before, this shouldn't be any different. For now, register on MCOL and submit just that you will defend in full (not the detail, no defence yet). Then read the other SIP cases again from last year (or maybe the year before) when we helped with a small claims flurry from SIP. Just search the forum for 'SIP Court' to find them.

And read post #5 of the Newbies thread to see about how to complete the court forms, and what happens, example defences, a link to cases won, etc. Loads of links there to read, then show us your draft defence (you have 28 days plus service from the date on the court papers).

You can do this, it's defendable and doesn't risk anything if you lose, you can just pay and the amount 'in play' is likely to be around the sum shown on the MCOL form. No big Solicitors' fees or anything and you don't need a Solicitor either. Doesn't put a CCJ on the record if you lose and pay up straight away, and as I say we've helped in cases which SIP dropped like hot potatoes before!

Maybe reply with a nice summary for us to see the state of play here on this page:

- dates, detail of contravention, appeals done & what happened, did you ever imply who was driving, did you get a LBCCC, etc.

Hi Coupon Mad, thanks again
summary of case


driver bought ticket after trying to get change (took 10 minutes)
returned put ticket on car, no pcn on car (got witness to this)
returned next morning, pcn on car (failing to display)
driver appealed pcn, ppc wanted ticket: driver forgot to send
NTK arrived for owner: owner responded as if they were driving mistakenly
two appeals failed in name of owner, only gave mitigation
ias appeal failed in name of owner, only gave mitigation
then found forums
no lbcc came, just final demands (x2)


definitely going to defend in full, and will read up further on defence points


eddy