Third party attempting to recover "debt" for PPC - 28 day limit still applicable?

Coupon-mad

Ooooh, missed that! Same as 'secretmachines' thread then:

https://forums.moneysavingexpert.com/discussion/4912828

Post #33 says he/she got the NTK six months after the event and when they appealed they got the same answer as this OP did. But look down to post #59 where a strong complaint email focussed JAS' mind and got a reply with POPLA code!

@stargazer7 you may like to send a pm to secretmachines with a link to your thread and ask what their email said and who they sent it to, as you have the same issue.

stargazer7

Hi Coupon-Mad.

Thanks very much for your help with this. I remember you helped me with a (successful) POPLA appeal earlier in the year against the loathsome Excel Parking Services. It sounds like these JAS cowboys are even more conniving, trying to confuse the issue by ostensibly passing the case on to this "Parking Debt Collectors" outfit, who from the sounds of it are just a different department in the same company! I'd have thought they are on pretty shaky ground legally with this, and will be making this point to the BPA.

It's definitely a tactic to block the appeal route off, because they know they will lose at POPLA.

Will come back with an update as I imagine there are others in the same boat.

secretmachines

hi everyone, sorry Stargazer only just seen your PM... thought I'd reply here so it might be useful to others.

I pretty much archived the trail in my thread, but basically this happened:

- received a windscreen ticket from JAS
- soft appeal sent to JAS (email) in a matter of days (advice from here was to just jump straight to this stage)
- heard nothing from anyone until an NTK letter (post) from a PDC (6 months later!)
- I emailed the PDC immediately saying I'd had no contact from JAS
- PDC emailed and said they don't deal with appeals & to contact JAS
- I re-emailed my soft appeal to JAS, and CC'd the PDC
- the ball then started rolling quickly, received a rejection email from JAS in days, which included POPLA details
- I sent off my appeal to POPLA via the website
- JAS submitted their 'evidence' by email and we're now waiting for the decision (expected early November)

As I have evidence of when I emailed the original appeal (email trail), I presume JAS don't have a leg to stand on.

If they complained (they haven't so far) that the appeal is too late, then I have counter-evidence that I submitted the original appeal in good time, any delay to the process is their fault.

does that help?

but I guess if you ignored the windscreen ticket until you were sent the NTK, that might muddy the waters? that's the only difference i can see in our circumstances - I sent an appeal to JAS a couple of days after getting the windscreen notice, i didn't wait for the NTK to arrive.

Coupon-mad

It shouldn't muddy the waters as the OP appealed as keeper soon after getting the NTK (which is like a driver appealing soon after a PCN).

Thanks for the input, secretmachines.

secretmachines

Coupon-mad wrote: »

It shouldn't muddy the waters as the OP appealed as keeper soon after getting the NTK (which is like a driver appealing soon after a PCN).

Thanks for the input, secretmachines.

ahh that's good, I wasn't sure.

let me know if there's anything else you need stargazer... it's all been fairly straightforward from my end - thanks to the guys on here!

hopefully i'll get the right outcome (and you too!)

does anyone know where the 'parking attendants' hide? I walk across my 'offending car park' every now and again and am always looking for them. they must hide in the back of a car/van? there's no booth or hi-vis-jacket-wearing-no-gooder in sight!

stargazer7

OK thanks for the tip secretmachines. I wrote back to JAS complaining of not being given chance to appeal contrary to the BPA code. They have now supplied a POPLA code and I have prepared a response. Would be grateful if one of the regulars could check it over for me.

I know this is a standard appeal point, but their signage is woefully inadequate, and I would have thought this point alone would be enough to win the appeal. Is it worth me attaching some photographs in the POPLA submission, or is the onus on JAS to prove their signs comply?

Thanks in advance.

Dear POPLA Adjudicator,
Re : POPLA code xxxxxxxx
Parking Charge Notice Number xxxxxxx (Vehicle: xxxxxx)
Site: Stockport B&M/ Dreams
Issue date: xx/xx/xxxx
I am writing as registered keeper of the above vehicle, to appeal against a charge of £94 that has been imposed by JAS Parking Solutions for an alleged contravention of their terms.
The reasons for my appeal are as follows :
1. The charge is not a genuine pre-estimate of loss
2. No attempt to mitigate loss
3. Insufficient proof of breach of terms
4. Non-compliant Notice To Keeper
5. No standing or assignment of rights to enforce the charge in court
6. Inadequate signage
7. The charge is punitive and unfair
These are detailed in full below.

1. The charge is not a genuine pre-estimate of loss

The car park in question is free to customers. As no damage or obstruction was caused by the position of the car, there was no loss suffered by JAS Parking Solutions (JAS).
In my appeal to JAS, I stated that I would like to see a breakdown of the costs they or their client incurred as a result of this alleged breach of their terms and conditions. This has not been provided. Therefore the legitimacy of their claim for liquidated damages cannot be assessed.
JAS must explain their 'charge' by providing POPLA with a calculation, not including their operational tax-deductible business running costs - for example, costs of signage, convoluted layers of staff checks including time on appeals that never happen in most cases, or hefty write-off costs and unsubstantiated 'overheads' as these are not losses incurred by this alleged breach. Also, if JAS include in their calculation any staff costs or time spent dealing with POPLA appeals or debt collection this must only be calculated on a very minimal pro-rata basis, since only a very small percentage of cases ever go to POPLA or to debt collection stage. Patrick Troy of the BPA states specifically:
“What you cannot do though is add the per appeal fee to your Parking Charge Notice amount calculations - only 1.1% of tickets issued go to POPLA and as such could not form part of a Genuine Pre-estimate of Loss"
Nor is the charge 'commercially justified'. If JAS cites 'ParkingEye v Beavis & Wardley' it's irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach...It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

2. No attempt to mitigate loss

JAS has failed to act reasonably and to mitigate loss, instead they are profiting from their own inaction. The ticketing employee observes drivers parking and leaving but chooses to issue PCNs in the first instance, rather than point out the easily overlooked signs and terms. Apart from this being denied by me (no evidence shown by JAS and neither do the signs show a defined site boundary) why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.

The charge is not a 'necessary cost' at all; it is wholly unreasonable because:

(a) - JAS could and should have taken reasonable steps to avoid this amount of 'loss'

(b) - it would have been reasonable for JAS to have taken other steps instead

(c) - the loss would have been reduced to zero, had they taken those steps.

To explain these points:

(a) JAS could and should have taken reasonable steps to avoid this amount of 'loss'.
Following an alleged breach of contract, an Operator has a duty to mitigate any loss. This duty in common law, requires reasonable steps to be taken to limit the losses that are incurred and to avoid incurring unnecessary expenditure seeking to remedy the breach. An Operator cannot simply 'sit on its hands' watching small losses accumulate with the intention of recovering them in full from the public using the most expensive, time consuming and unnecessary route to remedy the breach. Nor can an Operator continue to allow small losses to accumulate which are, even in part, caused by a failure of their own signage. It is imperative that a motorist is alerted to any obligation to remain completely within a defined site and this was not the case here. An Operator should not be 'compensated' by a motorist for a loss that is not really caused by the breach itself, but is in fact caused by the Operator's own failure to act in a reasonable way before deciding to issue a PCN.

(b) it would have been reasonable for JAS to have taken other steps instead.
As there is an attendant on site, observing drivers arrive and walk away if they have not seen any signs, it would not be unreasonable for that employee to take steps to alert the occupants of cars to the t&cs that they have missed, so that one occupant could go straight into the shop on site and the other get cash out or whatever errand they had intend to do together first. Nothing has been done by JAS to avoid the all too regular occurrence of PCNs being issued, with the same excuse of a 'contravention' being trotted out every time by JAS with alarming regularity. It would seem entirely reasonable to expect that the attendant who watches people leave, day in day out - then takes photos as soon as the coast is clear - must be nearby. So, it would not be prohibitively expensive, impractical nor difficult for that attendant - who is already actively engaged in observing drivers/cars - to point out the t&cs each time he sees occupants leave the (undefined) site on foot. It is negligent and disingenuous not to attempt to mitigate any loss.

This was found as fact in VCS v Ibbotson 1SE09849 in May 2012, where Judge McIlwaine reminded the legal representative of the claimant's duty to mitigate loss and said 'but this is before the notice is issued. He {the attendant observing} could have said,"Mr, whatever your name is, I am out here to enforce the parking. I don't want to ruin your day... Can I point out that...under the contract you have entered...I have to {issue a} charge'.

Another step would be for JAS to improve the signs rather than 'sit on their hands' and let these so-called losses accumulate, time and again, pursuing every one as a disproportionate Parking Charge of nearly £100! As JAS seem to have a problem with people leaving all their Staples car parks (proved by hundreds of cases in the public domain all for the same contravention), it would be perfectly reasonable to have added signs at all exits to warn people before they leave on foot. I contend that these car parks are a cash-cow for JAS, who act in the full knowledge that people have no idea they cannot get cash out first (or whatever they need to do briefly before shopping). This is the reason why the signs have not changed and none have been added as warnings where people leave on foot every day. I contend they have failed to take sufficient steps to address the issue.

(c) - the loss would have been reduced to zero, had they taken those steps.
If JAS had instructed their attendant to be proactive in his observational role and advise drivers rather than watch them walk away, oblivious to restrictions, then the 'loss' would have been immediately avoided. Ditto, if there were ample, simply-worded signs at exit footways clearly warning about this hidden restriction and showing a site boundary map for clarity. No PCN need ever have been issued and no photos taken, no-one's time would have been wasted and the occupants of all cars parking there would be fully informed to remain onsite and what the boundary is of the car park. The Operator's Managers would not have had to spend a typical BPA-coached '3 hours' of their precious time at £20+ per hour on this appeal - if indeed they bother - and everyone would have been happy.

So I have shown that there were very simple, reasonable steps that JAS could take but actively choose instead, to try to pursue £94 to 'remedy' each imaginary breach. This failure to mitigate loss is a failure in law and so it renders the inflated £94 sum to be unrecoverable. I put JAS to strict proof to the contrary to disprove (a), (b) and (c) above and to explain why they allow losses to accumulate, all pursued in the same unreasonable and expensive manner, from motorists who could easily be approached personally by an attendant or informed by much clearer warning signs.
3. Insufficient proof of breach of terms

The charge appears to have been issued on the basis that the driver either did not use the stores concerned or left the site. I have, however, received no documentation to back this up other than a photograph of the parked vehicle. This does not constitute proof of breach of the stated conditions, therefore in the absence of such evidence, I contend that JAS do not have cause to pursue this charge.
4. Non-compliant Notice To Keeper

The windscreen ticket issue date is given as xx/06/14. The Notice To Keeper, when it arrived, was sent from a company called Parking Debt Collectors and dated xx/09/14. This does not fall within the 28 days following the 28 day period from the day following the issuing of the Notice to Driver specified in the Protection of Freedoms Act 2012, schedule 4, section 8(5).
In addition, this was the first postal correspondence that the keeper had received regarding this matter and by passing the “debt” on to a collection company without first sending a NTK, JAS were denying the keeper chance to appeal, contrary to the BPA Code of Practice, section 22.1, which states that:
22.1 Under the Code you must have procedures for dealing fairly, efficiently and promptly with complaints, challenges or appeals. The procedures must give drivers and keepers the chance to challenge a parking charge notice.

An attempt to appeal via the Parking Debt Collectors website was rejected on the basis that PDC are “only authorised to collect monies”. A further appeal to JAS was then rejected.
5. No standing or assignment of rights to enforce the charge in court

JAS have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. I believe that JAS do not have the legal capacity to enforce such a charge since there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents.
I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I say JAS are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable JAS to impact upon visiting drivers in their own right for their own profit, because they are agents acting on behalf of a named principal. For the avoidance of doubt, I will not accept a mere “witness statement” since a mere letter would fail to show any payments made between the parties, and would omit contraventions and restrictions and dates & details of all terms in the actual contract.
6. Unclear, inadequate and non-compliant signage

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the parking space used or exits to any of the shops. One small sign at the car park entrance is not adequate for JAS to claim that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were satisfied, nor does it comply with BPA code 18.2 which states :
“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

I contend that the signs and any core parking terms JAS are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity and frequency) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2].

7. Unfair terms

The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”

1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':

Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for 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.”

Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 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.
19.14 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.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. The charge of £94 imposed by JAS constitutes an unfair term as it is disproportionate with respect to the alleged infringement.
Taking these points into account, I respectfully request that this charge be cancelled.

BlackSpangle

stargazer7 wrote: »

I'd have thought they are on pretty shaky ground legally with this, and will be making this point to the BPA.

So you should. As will I.

stargazer7 wrote: »

It's definitely a tactic to block the appeal route off, because they know they will lose at POPLA.

I'm having difficulty seeing it any other way.

What might be missing here is the emphasis that the NTK from this PDC mob (aka Dara Debt Recovery, aka the sister company of JAS) comes with the whole BPA logo (and indeed they are members of the BPA), complete with all the details of how to appeal to PDC, text about getting a POPLA code, yadda yadda.

The exact text is

If your appeal is rejected we will provide you with details of the independent appeals service POPLA. To appeal please visit our website or send it to PDC 483 Green Lane London N13 4BS

And now we find that if people do appeal, they just say "Oh we just do debt recovery", you need to talk to JAS.

So why do you state in writing that you handle appeals and POPLA codes if you don't?

This has got to be a clear violation of BPA rules - claiming to act as an approved operator, but refusing any of the obligations contingent on that approval.

I really think the desire is to ensure that people waste time going round in circles between the JAS/PDC identity shift, pass the 28 day limit, so they can then say "Too late for POPLA. Pay up".

But - and I think this important - the general advice here (and elsewhere) is that debt collectors are toothless forces, and that their letters should simply be ignored. In this particular case, that normally good advice could lead to a loss of avenue to POPLA.

However, the standing rule for JAS is to appeal directly to them without waiting for the NTK, which I guess is still valid, even if it's costing you the keeper advantage.

stargazer7

Letter has now been received from "Dara Debt Recovery" (so the same outfit basically), claiming to be chasing a debt of £149! So this is the third different alias they are using to pursue this, despite the fact that the POPLA deadline has not passed yet. This is going in to the complaint to the BPA as I view this as harassment. They have the cheek to mention POFA 2012, yes, the same POFA 2012 that they failed to comply with when issuing a NTK outside of the 56-day window.

Good point on the BPA COP breach, Black Spangle, thanks. I have added that to my appeal as they - as in PDC - have rejected an appeal without offering POPLA code. Pretty confident now to send it off as the deadline's looming, but if anyone does spot anything that needs changing or improving and could point it out, it would be much appreciated.

Umkomaas

Over 3,000 words - the semi-nuclear approach!

Looks OK, but in appeal para 4 'Non-Compliant NtK', you need to state that as the NtK is non-compliant, they cannot invoke keeper liability under POFA 2012. That's your key point to make, not that the NtK was non-compliant.

Embolden appeal para headings to make each appeal point stand out.

Please don't copy and paste it again in the thread with the minor amendments I've suggested - get it off to POPLA.

stargazer7

Thanks. I know it's a bit wordy but didn't want to miss anything important out we'll see what happens!