Park Watch Defence Systems - No entry - How do I sort this??

sweeney_1990

Help on this would be GREATLY appreciated. I have only just got the letter, no appeal, no debt collection letter, simply £60 in 14 days otherwise rises to £100. I've read a lot of the current feeds, and found one that is the exact same 'violation' as me in the same place:

forums.moneysavingexpert.com/showthread.php?t=5065975

However they had already appealed (and failed) before posting on here. I can't figure out how to attach an image on this (asks for a link) but this persons letter (both sides can be seen, page 2 further down the feed) is near identical apart from they parked in the place that I drove through (my letter has a pic of my car parked and a pic of it driving through, but only states "Enters no access area"):

forums.pepipoo.com/index.php?showtopic=86814

Reading the "Newbies" post I was a little confused as I wanted to make sure it applied to me still as this is not a parking ticket its for entering a no entry. As I understand it the basic jist of me managing to not pay this is that this is council owned road and they have no right trying to charge me. Not sure how important this is, but I'm not the 'keeper' but am insured to drive the car, seems to be some changes to how it should be written, lots of info on these feeds is confusing me a little so bare with me!

Should I write directly to the people who issued the letter at their APPEALS address; Appeals Department, Suite 12, The Shippon, Church Road, Dodleston, Chester, CH4 9NG - rather than writing to POPLA at this stage??

And then there is the case of what to write. The lady in the first link I attached had success after failing writing to POPLA with the template below. Shall I send this to Park Watch Defence Systems anyway, and if they turn it down send the same thing to POPLA? Or below that, shall I use the template from the newbies parking ticket feed? Again, these templates both talk about being the keeper which I am not, so help on the wording too would be amazing.

I am the registered keeper and I wish to appeal a recent parking charge from Defence System Ltd. I submit the points below to show that I am not liable for the parking charge:

1) Not relevant Land under POFA 2012; no registered keeper liability
2) The alleged contravention did not take place
3) No landowner contract nor legal standing to form contracts or charge drivers
4) Misleading and unclear signage
5) Amount demanded is a penalty not a genuine pre estimate of loss

1) The location is not "relevant land" within the terms of the Protection of Freedoms Act and no registered keeper liability.

The incident described is by no stretch of the imagination 'parking' so they cannot invoke POFA 2012 in order to claim keeper liability.

The driver has not been identified, yet Defence System Ltd are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as the road on front of one stop shopping centre is designated as a bus entry by the council and therefore roads within the front shopping centre are subject to council bylaws and so POFA 2012 does not apply. I put operator Defence System to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the council Authority that this land is not already covered by bylaws.

2) The alleged contravention did not take place

The occurrence alleged is not a "parking event" within the terms of Protection of Freedoms Act.

The relevant part of the POFA states –(The notice must) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.

This paragraph in no way applies to the alleged contravention which is ‘entered no access area’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

There was no parking contravention at all. Defence System Ldt are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

3) No landowner contract nor legal standing to form contracts or charge drivers

Defence Systems Ltd has no authority or lacks suffiicient authority to issue charges in relation to alleged occurrences.

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

4) Misleading and unclear signage

Defence Systems Ltd signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.

It possible for drivers to enter this road without seeing the signs thus no contract can be formed between the driver and Defence System Ltd. The entrance sign is situated on the side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

5) Amount demanded is a penalty not a genuine pre estimate of loss

The charge Defence Systems Ltd are seeking to levy does not represent a genuine pre-estimate of their loss or that of their principal.

The charge of £100 is being sought for an alleged breach of the parking terms namely “Entered no access area” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA 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.

On the day in question there was neither damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that:

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed

I request that my appeal is allowed.

Yours faithfully,

Or does this template on the newbies feed suffice even though its applicable to parking rather than this no entry violation?

Date


Dear Sirs

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

I challenge this 'PCN' as keeper of the car, on these main 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 signs were not seen, the wording is ambiguous 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' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.
e). There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.
f). This is not a 'parking ticket' - it is an unsolicited invoice with as much merit as the publicly-derided £100 taken unlawfully from customers by a dingy Blackpool Hotel.

Your clients should be thoroughly ashamed of the shoddy way you treat consumers visiting their premises. The landowner will be made fully aware of this matter and your response, which I will forward to their CEO when I complain in writing and via social media, as appropriate.

Parking firms like yours fail to demonstrate even a basic understanding of customer service. The reputation of your business model appears to be more akin to a protection racket than 'parking management'. Your ATA may offer sound-bites about driving up standards or fight for motorists' rights but in reality they are not a regulator; they merely exist to represent the interests of paying members, in order to gain access to DVLA data. The public have no faith in the private parking industry and, as far as I have seen, your firm has not shown itself to be any different than the ex-clampers with whom you share a membership.

The purpose of this communication is:

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. As such, you must either rely on the POFA 2012 or cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal postage costs. Equally, I have incurred costs to date, for researching the law and responding to your junk mail dressed up to impersonate a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15. 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 out-of-pocket expenses and damages for harassment.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered by you and certainly was not expressly agreed. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - IAS or POPLA, then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies. The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations apply now to every consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that express consent is obtained for consumer contracts now - not implied consent - and that information is provided in a durable medium in advance.

You have failed to meet these requirements. The foisting of unexpected contracts like this on consumers, by stealth, is a thing of the past.

By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above. If you decide to persist with this unwarranted threat, 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 and a pre-estimate of my loss - and in contrast with yours, mine is genuine - is that this sum will be likely to exceed £100.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.

Yours faithfully,


{the registered keeper's name}

bazster

I don't understand, if you're not the keeper how come you've got the letter? And is your relationship with the keeper such that you could write in his/her name with his/her agreement? Or is it a company/lease/hire car scenario?

Is this the place?

One Stop Shopping Centre
2 Walsall Rd, Birmingham, West Midlands B42 1AA

If so, it's somewhere I will need to go and get a ticket next time I'm passing through Brum. Is the location with the supposed "no entry" restriction obvious? They can't allege keeper liability, or obtain keeper details under their KADOE contract, for an event that does not involve parking. They and the landowner need their noses rubbing in this mess.

sweeney_1990

Hi, thanks for the reply.

It is my girlfriends car and it wouldn't be a problem to write with her name on the basis of writing these letter to get rid of the problem.

That is the place, there's a weatherspoons at the top where people often drop off/pick up (like me) and seem to get tickets, then there's a road to the left which does say not entry on the road surface but is very open to drive through.

Any ideas on how to go about this?

bazster

I see that Park Watch Limited has recently incorporated, alongside Defence Systems Limited. What is the actual company name (as opposed to trading name) on the paperwork you have received? And on the signage?

I see that Adam Baker has recently resigned his directorship of both companies, and the sole director of both is now Warren Clays. Intriguingly, the retail park mentioned above is "managed" by the odious Jones Lang Lasalle, and JLL used to have an employee with the somewhat-unusual name of Warren Clays.

sweeney_1990

The letterhead has Park Watch A Division Of Defence Systems, they ask for a cheque payable to Park Watch. Their telephone payment number is 0844 304 0170 and the website to pay is paydefsys.co.uk the address to send payment slip is "Transfer of liability department, suite 12, the shippon, church road, dodleston, chester, ch4 9ng"

bazster

sweeney_1990 wrote: »

Hi, thanks for the reply.

It is my girlfriends car and it wouldn't be a problem to write with her name on the basis of writing these letter to get rid of the problem.

That is the place, there's a weatherspoons at the top where people often drop off/pick up (like me) and seem to get tickets, then there's a road to the left which does say not entry on the road surface but is very open to drive through.

Any ideas on how to go about this?

Thanks.

Please read the Newbies sticky and send a more-or-less standard appeal, in the name of the keeper without stating who was driving. https://forums.moneysavingexpert.com/discussion/4816822

You can enhance it to state that since the alleged "offence" is not one of parking they cannot hold the registered keeper liable under POFA 2012 Schedule 4. You could also point out to them that alleging keeper liability where none exists is an "offence" which could get them barred from access to DVLA registered keeper data, and that if they told DVLA they requested your details for the purpose of pursuing a parking charge then they have committed an offence under the DPA by using data for a purpose other than that for which it was obtained.

And you can and should complain to DVLA that you believe your personal details have been accessed and used unlawfully.

sweeney_1990

Ok great, so send the template (plus your points above) from the newbies post that I pasted into my original post (the second one), and that should have me on my way? Then if they play silly beggars I can get onto POPLA...!

And to complain to the DVLA is there a better way than their general online form? An address or email to contact directly?

bod1467

As I understand things, yes to all the above.

Contact details I believe can be found in the NEWBIES thread.

bazster

Yes, DVLA contact details are somewhere in the Newbies sticky.

sweeney_1990

Is Emailing the appeal just as good as posting it? And in the email I don't need to put my girlfriends name, just 'the registered keeper', nor add her address, is that correct? Obviously they already have the details as they sent the letter in the first place. Thanks so much for all the help! And I'll let you know how it goes!

bazster

Some will say email, personally I prefer snail mail with a free proof-of-posting obtained at the P.O. counter.

The appeal needs to be from your girlfriend, writing as the registered keeper. Include her name and address to make it suitably formal, they already have that information so no point in withholding it now!