UKPC ticket in Scotland - driver identity admitted

Primeau

Hi Coupon-mad,
Thank you very much for the information. I went along to TK Maxx this lunchtime to see if they could assist, and I was told that they are not interested. They said they don't own the car park, and have nothing to do with it's management. They refused to do anything to help.

But while I was there, I had a good look at the signage. Very interestingly they have a statement "In the event of machine failure please contact UKPC customer services". There is also a phone number on the board, but no explicit instruction about when to contact, if parking is not allowed until contact is made, or instruction to try another machine. Therefore I believe I have additional grounds on the basis of unclear signage.

I shall draft a Notice of Cancellation this evening and post it here for review should anyone be interested. I will follow the template, omiting any references to POFA. Thank you for the links, I shall study them with great interest.

I have also contacted the local paper, and the local CAB. The local paper has been running a feature on unfair parking at Gallagher Retail park.
There will be a follow up story in the paper on Friday morning.

I have also discovered that with regard to the recent small claims court cases, is that both motorists admitted they were driving in their submissions to the sheriff.

Both cases are scheduled to continue this Thursday, to see if UKPC wanted to persue the whole £160, or just the initial £60.

best regards,
Primeau

Primeau

Thanks again for the links. The Regs make for encouraging reading. I have drafted a notice of cancellation based on the template.

Changes:
1. I have removed all references to POFA, since this does not apply in Scotland.
2. I have changed the purpose of the letter to a cancellation of contract rather than a challenge.
3. I have added notification that the wording on the signs regarding meter failure was ambiguous, and that ukpc have acknowledged the failure.

Any feedback would be gratefully received.

Dear Sirs

Re: PCN No. ....................

Notice of cancellation of contract

I reject the validity this 'PCN' as keeper of the car, on the following grounds:

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
b). As keeper I believe that the signage is insufficient, the wording is ambiguous in the event of machine failure (you have acknowledged there was a machine failure) and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land.
d). Your 'Notice' breaches the Consumer Contracts (Information, Cancellation and Additional Payments) Regs 2013.
e). There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.

The purpose of this communication is therefore:

1. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal costs. Equally, I have incurred costs to date, for researching the law, reading your Notice and responding, despite a lack of contract. I calculate both my costs and yours to be under £15 at this early stage, therefore, this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my expenses.

2. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged contract which was never properly offered or explained by you. The charge is not acknowledged, is not due and no 'service contract' from you was ever expressly requested by the driver or by me. Neither the driver nor myself gave 'prior express consent' or any consent at all for any contract to exist and it is not for me to pay an extravagant sum just because you chose to foist unexpected and non-negotiated onerous terms upon any driver of my vehicle. This 'contract' is hereby cancelled and any obligations now end.

You have clearly breached the Consumer Contracts (Information, Cancellation and Additional Payments) Regs 2013. Even if your contract is found not to be a 'distance contract' (which I say it is), it is a fact that providing the use of a parking bay is a contract which must follow the provisions of these new Regulations. You have failed to provide the required information for consumer contracts in a 'durable medium' in advance and you have failed to obtain 'express agreement' from the driver; a form of specific consent which cannot flow from a sign.

By replying to this notice, you will also be acknowledging receipt, understanding and acceptance of points 1 and 2 above. If you do not now cancel, then I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs which are likely to exceed £100 if you ignore the fact I have cancelled the contract, should you now proceed to small claims court.

Only reply with a rejection letter if you understand and accept your future liability, since I have already openly indicated the main points of appeal and have pointed out that your contract breaches current UK Regulations which were introduced in 2014 to protect consumers in a consistent manner. I have also cancelled any contract that you may think exists. If you choose to refuse my drop hands offer, you accept liability for my expenses and time wasted on repeating my points at further appeal stage and in court if necessary.

Where sent by post I have obtained proof of posting. Where submitted online/by email I have kept a copy and this communication is clearly received by you unless proved otherwise. I look forward to your considered reply within 35 days and urge you to accept the drop hands offer and accept that I have cancelled any 'contract' because this resolves the dispute without cost.

Yours faithfully

Primeau

UKPC are continuing their small claims court action against Dundee drivers on Thursday. I will hold off on sending any notices until Friday to see which way those cases have gone.

pogofish

Small claim actions don't set any legal precedents, so it won't really matter which way they go.

Primeau

Thanks pogofish.
Local reporting suggested these were test cases by ukpc.

pogofish

Test cases in the sense that small claims actions by PPCs in Scotland have been rarer than hens teeth up to now but for a decision to stand, the PPC would have to win in the Hgh Court. Until then, each action stands or falls on its own merits.

Coupon-mad

Primeau wrote: »

Thanks pogofish.
Local reporting suggested these were test cases by ukpc.

There are a flurry of preliminary hearings listed by UKPC and VCS for tomorrow in Scotland but only one second stage hearing (Forfar).

Primeau

Hi C-M,

Forfar is just up the road from Dundee. The cases heard there are Dundee drivers caught out at the Gallagher Retail Park.
The local paper will be in attendance and are planning a story in tomorrow's Courier.
If the story is online, you should find it posted this evening. (The courier don't put all stories online) Regardless, I'll be getting tomorrow's paper and I'll post any news that's not available online.

cheers,
Primeau

PS Thanks for the help with the Contract cancellation letter. (see draft a few posts up) One small question, should I point out that the unclear signage is specifically about circumstances relating to a faulty meter, or just cite unclear signage? I can see that the signage has been beefed up considerably in that car park, in term of numbers of signs, and signs in larger lettering at the entrance. Mind you, I only noticed because I was looking for them, they are still not 'in your face'.

Coupon-mad

Unclear signage is everything about it, from a lack of signs, to unreadable high positioning, to unlit signs, and to words that could be ambiguous. E.g. some defendants won a ParkingEye court hearing because the Judge agreed that 'failure to comply with this' was unclear because 'this' was ambiguous! So be pedantic about the signs.

Your local paper should be encouraging mass complaints and boycotting of Gallagher Retail Park for letting customers in Scotland get sued for this scam for the first time. It's not a good reputation to carry, not a good 'first' for any retail park! Has the retail park got a facebook page and/or are they on Twitter? Clutter it full of complaint comments or Twitter comments with their retail park name on and encourage LOADS of people to do the same.

Primeau

UKPC drops court cases in Scotland
Three cases that UKPC had brought against Dundee drivers in the small claims court were yesterday DROPPED.
The drivers were offered an out of court settlement (£152 instead of £160 !!) but the drivers refused.
UKPC then instructed solicitors to drop the case. UKPC has not commented why.
Full story in this mornings Dundee Courier.

Obviously they know they couldn't win, so had to back down. respect due to the drivers for refusing to submit to bullying.