PE PCN for ABP Town Quay Southampton

oldngrumpy

Hi all - complete newbie here and I must start by praising all the experts here for the guidance and information contained - really impressive. I have read a lot of the posts and think I have my head round the process but have a couple of questions.

In summary, my car was ANPR'd in the (infamous?) Town Quay car park area on August 1st just before 9pm. It did NOT use any of the pay & display spaces, but did wait in one of the unused company spaces for a while and was never left unoccupied. It was then clicked leaving after 47 minutes - both images are remarkably clear. The driver was totally unaware of the need to purchase a ticket at this time of evening and when not using a marked space. First PCN was issued on 7th August and now I have a reminder dated 16th but not received until 21st, the day the 'discounted offer' expired.

I've had time to come down from incandescent and am now simply annoyed and determined - thanks mainly to the advice I've found here already.

I will appeal within their stated 28 days using the format in the 'Newbies' thread and understand that they cannot pursue the keeper (me) under the local byelaws. So - my questions are - should I simply contest the PCN on that basis or should I pile on everything I can from the examples at the outset?

All advice very gratefully received. Thanks in advance.

BenefitMaster

oldngrumpy wrote: »

In summary, my car was ANPR'd in the (infamous?) Town Quay car park

All advice very gratefully received. Thanks in advance.

As the master of Town Quay, so to speak, I would prefer you to report this blatant attempt at fraud to the police, and ignore PE.

If PE then take you to court, I will support your contesting this.

The_Deep

As the master of Town Quay, so to speak, I would prefer you to report this blatant attempt at fraud to the police, and ignore PE.

I doubt if the police will treat the matter with the seriousness which it merits, They are convinced that this is a civil matter. Trading Standards however will, this is their bread and butter.

I know that you think TS are ineffective, but I suspect that your complaints to them have not been based on consumer legislation Did you contact them by 'phone or by letter?

BenefitMaster

The_Deep wrote: »

As the master of Town Quay, so to speak, I would prefer you to report this blatant attempt at fraud to the police, and ignore PE.

I doubt if the police will treat the matter with the seriousness which it merits, They are convinced that this is a civil matter. Trading Standards however will, this is their bread and butter.

I know that you think TS are ineffective, but I suspect that your complaints to them have not been based on consumer legislation Did you contact them by 'phone or by letter?

Both.

However, PE's action is an offence under the Fraud Act 2006. They know this. That means their action is willfully criminal.

The_Deep

So - my questions are - should I simply contest the PCN on that basis or should I pile on everything I can from the examples at the outset?

A single point appeal would be my choice, but a wet behind the ears law graduate at Popla might disallow it. This is no dig deal if you are up for a fight, as the law is the law and a perverse Popla decision is of little consequence.

No-one knows how a PPC would react, but if Popla disallows it a PPC might, (although they would be foolish to do so), take you to court, where a judge might, (although unlikely) find against you.

It all depends whether you are a punk who feels lucky.

http://www.youtube.com/watch?v=8Xjr2hnOHiM

Dee140157

This is the initial appeal we are deal on with at this stage.

For the initial appeal to the PCN there is no harm simply saying :
I am the registers keeper. I deny this debt as this is harbour land which is not relevant land under POfA12 for keeper liabilty. Therefore I am not liable for this charge. I decline to name the driver. Cancel the charge.

Or you could add these words as a first point I a full appeal as per post 1 of the newbie thread.

They probably won't cancel but they should send you the POPLA code. You the beat them at POPLA.

This is if you want to deal with it the normal way.

What Benefit a master is saying, is to ignore the whole thing, which is not what we normally advise.
If P.E. try to take you to court over the issue, thinking they will pressurise you into paying the charges as they go up, then you would get the benefit of his expertise, and he has won a battle in court with them, to try and make it absolutely clear they are committing fraud by claiming registered keeper liability. They should not be getting your details from the DVLA for this as they KNOW thre is no keeper liabilty. So they are telling lies.

Now this route could be a lot more stressful, but ultimately more satisfying if you end up with your day in court. And could cost them a lot of money.

And in the meanwhile, you could be seeking the police to prosecute them for what is essentially fraud.

It is completely understandable if you want the quick way out. But one day we have to hope someone will take up the challenge.

The choice ultimately is yours and you will get support whichever way you chose to go.

mo786uk

What is the false representation that has been made under the fraud act? BTW I am not sure a company can be prosecuted under the FA. It refers to a person and offences which can be taken against a company usually refer specifically to a company rather than treating the company as a person

Just playing devils advocate - I think going into a car park and sitting there for 47 mins in a non marked bay is stretching it to say you were not parked there.

There may be technical arguments as to what constitutes parking (i.e within a bay and having to leave the car). Essentially it comes down to what is on the signage I spose.

As for Trading Standards - if they have to prosecute they also have to prove to to the criminal standard (beyodn reasonable doubt) - the made difference is under consumer law the offences are strict liability (with defences) and you don't have to show guilty knowledge - which makes it easier to take on a company as opposed to an individual.

Edna_Basher

I think the Act does extend to companies (i.e. “person” should be taken to mean “legal person”). For example, Chapter 35, Paragraph 12 considers offences under the Act committed by a body corporate, including how the guilt of a body corporate may also extend to directors, managers, secretaries or other similar officers of that body corporate.

Under Chapter 35, Paragraph 2 (2), a representation is false if—

(a) it is untrue or misleading, and
(b) the person making it knows that it is, or might be, untrue or misleading.

Under Chapter 35, Paragraph 2 (3) “Representation” means any representation as to fact or law, including a representation as to the state of mind of—

(a) the person making the representation, or
(b) any other person.

With regard to Parking Eye’s operations at Southampton Town Quay, the representations in its PCNs warn Registered Keepers that they could be held liable for the charge under POFA 2012; we know this to be untrue. Although Parking Eye Limited may argue that it does not yet know for sure that this statement is untrue or misleading, now that it knows that the DVLA is investigating this matter, it certainly knows that the statement might be untrue or misleading.

All of the above boxes seem to be ticked; however, whether or not Parking Eye has committed an offence looks like being dependent upon the provisions of Chapter 35, Paragraph 2 (1) - i.e. can it be proven that Parking Eye was dishonest in making a false representation?

One more thing – this will also depend on whether Parking Eye intended to make a gain for itself; however, from the Beavis case, we know that Parking Eye has acknowledged that it does gain from its PCNs and that it believes it is commercially justified to do so.

Northlakes

As I understand it there are two redress issues here which may be confusing.


The Consumer Protection (Amendment) Regulations 2014 from 1st October 2014 gives the power of redress to individuals who have been penalised by misrepresentation the opportunity through the Small Claims Court to recover sums from PPC's who have through their actions obtained monies fraudulently.


Secondly there is the power under the Fraud Act 2006 for Trading Standards/Police to bring a criminal action against a PPC who through their actions have obtained pecuniary advantage by deception.
Both of the above will apply to a PPC who has misrepresented a situation to the determent of a number of individuals.
However the second case will be the most costly to a PPC as the Proceeds of Crime Act comes into play and if you are a PPC you don't want to go there as this is very threatening in financial terms to a PPC of any size. The prosecution can go back years in terms of redress and any profit you thought you made has gone out of the window.

Edna_Basher

In which case, as per BenefitMaster's advice, the more complaints to Trading Standards the better.

I currently have a case or two on the boil with Parking Eye in respect of PCNs issued at Leisureworld, Southampton. I very much hope these will be of interest to the Trading Standards Service, Southampton City Council, 5th Floor, One Guildhall Square, Southampton SO14 7FP.

oldngrumpy

OK - time for an update on my appeal against the PCN at Town Quay. I composed my own version of the appeal letter, focussing mainly on the fact that owner liability does not exist here as the local byelaws mean this is not 'relevant land' under PoFA 2012 and yet PE were asserting it did and that I would become liable after 29 days. I also included the arguments of the disproportionate invoice, their authority to pursue charges, non-compliant signage and ANPR accuracy.

Within a week I received a holding letter from them stating "PE are currently awaiting confirmation from the DVLA and the BPA concerning how appeals for ABP Town Quay (Short Stay) ought to be dealt with." !! They confirmed the charge was on hold, remaining at the discounted level - very nice of them!

Two days later they have written a very brief letter to me stating "the Charge has been cancelled" - nothing more.

All I can say is a big thankyou to those of you who gave me the confidence to go through with this - I'm almost dissapointed they have rolled over with so little effort. Thanks again - and if you want copies of any of the letters then just ask.