Help!! Letter from Debt Recovery Plus

QuestionsQuestions13

I will post my final appeal later. Would it be better to start a new thread with it on under a different heading (just thinking of what would make it easier for other people to find.)

I'll be writing to my MP about the situation later too. Definitely am going to go on the offensive. I hate the way they're preying on people in vulnerable situations and relying on the fact that most people will just cough up because they think they have to.

Thanks too MothballsWallet. I have drafted a robust letter to DRP saying that I'm in dispute and not paying and for them to stop contacting me (got the template from this website). If I get anything from Zenith following this, them being part of the same group, I'll consider this harassment.

Thanks again for all your help.

MothballsWallet

Keep everything related to this ticket / case on this thread, please, it'll be easier to find later.

Redx

as above ^^^^^^^^^^^^^^^^^^^^^

one case , one thread , even when its sorted , post the outcome in here, if you win at popla, also post your decision in the POPLA DECISIONS sticky thread too

good luck

QuestionsQuestions13

Okay, so here's my final appeal:

I am the registered keeper of the above car and hold a valid driving licence. I am not liable for this Parking Charge Notice for the reasons detailed below. I acknowledge that the 28 day deadline for submitting this appeal to you has expired but note that the Lead Adjudicator can allow late appeals in unusual circumstances. I claim such extenuating circumstances and would respectfully ask that my appeal be considered notwithstanding. I would ask that this be clarified with the Lead Adjudicator.

I received a windscreen ticket at the Ealing Hospital car park on 18.11.14 and immediately wrote to APCOA explaining the circumstances detailed below. On 4.12.14 I received a letter from them stating that they did not uphold my appeal. I determined to appeal the Parking Charge Notice but did not feel confident in doing so myself. As such, I paid a company called parkingticketappeals.org.uk to take on the case. Parkingticketappeals.org.uk assured me they would put in an appeal to you and that I did not need to do anything else unless I received further correspondence from APCOA.

I had researched the company and found they had been operating legitimately and in a timely manner so, reasonably I believe, assumed the appeal to you had been lodged. Emails to and from parkingticketappeals.org.uk, a receipt from them and a Paypal receipt for their services can be provided upon request.

On 31.1.15 I received a letter from Debt Recovery Plus Ltd demanding payment of an unpaid parking charge £110. I presumed an error had occurred and attempted to contact parkingticketappeals.org.uk for reassurance. Their phone line was dead. Their website simply advised that they had ceased trading. At no point had I been contacted and informed that they were not dealing with my appeal. I have researched the appeals process as quickly as possible and hope that the Lead Adjudicator will be understanding of the circumstances stated and consider my appeal despite it being out of the 28 day application period.

I am not liable for this Parking Charge Notice on the following grounds and would ask that they are all considered.

1. The amount demanded is not a Genuine Pre-estimate Of Loss.
2. Signage at the car park was non compliant with the British Parking Association standards and there was therefore no valid contract between the parking company and the driver.
3. No contract with the driver in question.
4. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the court.
5. No right to impose a punitive sum.
6. Terms levied are unreasonable.

1. The amount demanded is not a Genuine Pre-estimate Of Loss.
The wording on signage in the car park appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

The BPA code of practice states:

19.5 'If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.'

19.6 'If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.'

I require APCOA to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

For this example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.


2. The Signage Was Not Compliant with the BPA Code of Practice or readable before parking - so there was no valid contract formed between the parking company and the driver.

The sign at the main entrance to the car park is situated on the right hand side of the road, across a lane of traffic, at an angle and approximately a metre away from the kerbside. Therefore, when turning into the car park it is obscured by traffic exitting the car park and cannot be read. Notwithstanding, the text on the sign is not sufficiently large enough to be read when turning into the car park. It clearly does not comply with Appendix B of the BPA Code of Practice which states that 'The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. '.

Furthermore, there is access to the car park via a side road before the main entrance which has no signage on it at all, readable, compliant or otherwise.

Appendix B of the BPA CoP (Entrance Signs) states the the 'AOS roundel must always be shown on the sign.' The signs at Ealing Hospital do not comply with this.

Clause 19.9 of the BPA CoP states that 'You should warn drivers that if they delay payment beyond a payment period of 28 days, and you need to take court action or use debt-recover methods to recover a debt, there may be and extra 'recovery charges for debt-recovery action.' There is no such warning on any of the signs in Ealing Hospital.

The entrance sign does not clearly state that the site is managed (BPA CoP clause 28.2).

I put APCOA to strict proof of clear, readable, compliant, properly located signage being available at the entrances and indeed around this car park which complies with the BPA CoP. 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”.

A lack of compliant signs at the entrance to the car park and unclear wording creates no contract.

3. No contract with the driver.
I parked the car in the car park of Ealing Hospital having taken my eight year old son, who has Additional Needs, for an outpatients appointment. On arrival at the ticket machine I was surprised to find that it did not take bank notes. I did not have enough change to pay the parking charge so I telephoned the number given on signage next to the ticketing machine and spoke to a representative of APCOA (call ref: 17112014192). I asked to pay the parking charge over the phone but was told this was not a facility that was provided. The APCOA Representative suggested that I drive somewhere to obtain cash or change but I informed them that we were at a hospital and that doing this would make me very late/miss my son's appointment, wasting valuable NHS resources. The APCOA Representative then advised me to go to my appointment and if I got a parking charge notice to write to APCOA explaining my circumstances and outlining our conversation. I, reasonably, assumed that if I did get a PCN and did as the APCOA Representative had advised, any charge would be immediately cancelled.

I did get a PCN and wrote to APCOA accordingly. However, they did not uphold the appeal.

I acted, in good faith, on the advice of an APCOA Representative, rendering any other contract APCOA claim was entered into, invalid.

In order for a contract to be valid, the driver must be able to read the terms and conditions of that contract before entering into it. As the BPA CoP states (clause 28.2) 'Entrance signs located at the entrance of the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of.' The placement of the entrance sign as detailed above therefore renders any contract claimed by APCOA, invalid. In the letter APCOA sent me after my appeal they stated that 'the terms and conditions of the car park are clearly displayed at the entrance to the site. By entering and remaining on the property you have agreed to abide by these conditions.'. I challenge their assertion that terms and conditions were clearly displayed at the entrance to the site and contend that they fail to properly and clearly warn/inform the driver of the terms in this car park in compliance with the BPA CoP and put them to strict proof of this.

Even if the sign at the main entrance to the car park was compliant and valid (which it is not) it states that a breach of terms and conditions 'may' result in a PCN. I therefore believe it would be wholly reasonable to think that, after my telephone conversation with an APCOA Representative, no charge would be levied.

The Ealing Hospital website does lay out the parking charges but does not provide information that the machines only accept coinage, with no change and that there is no facility for phone/credit card payments. No signage in the car park, other than that located at the actual ticket machines, states this either. It is therefore not reasonable to assume that car park users should know this before or upon entering the car park.

4. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the court.
APCOA have no standing as they are an agent, not the landowner. They also have no BPA compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put APCOA to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, 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 APCOA and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that APCOA can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged.

5. No right to impose a punitive sum.
I believe the amount APCOA are trying to claim is a punitive sum. I believe that APCOA cannot claim penalties, as this is an unfair term. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for 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...''

Test of fairness:

''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A sign of terms placed at the car park is far from transparent and is also rendered void by the conflicting advice given by the APCOA Representative, contacted by phone, in good faith.

According to the hospital website, 'failure to display a valid parking ticket may result in with you being issued with a parking enforcement notice of £30'. However APCOA then tried to extract double that amount from me, as I tried to challenge the ticket, as registered keeper of £60. As stated above, that demand for payment has now risen to £110. I fail to see how these charges can be considered as anything other than punitive.

Schedule 2 of the Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

I contend it is wholly unreasonable, having attempted to pay the initial parking fee and acting on the advice of an APCOA Representative, that an attempt be made to profit by charging a disproportionate sum. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

6. Terms levied are unreasonable.
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

I therefore respectfully request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.

QuestionsQuestions13

So I sent my appeal to POPLA last night (electronically). This morning I got an email stating that as it was outside the 28 day period they wouldn't consider it and I'd need to cough up.
I've emailed them straight back and drawn their attention to the extenuating circumstances detailed at the top of the appeal, in compliance with the advice on their FAQ sheet.
I also reiterated that I request the Lead Adjudicator to consider it.

Umkomaas

What was the date of the rejection letter that contained your POPLA verification code?

Do not pay!

QuestionsQuestions13

It was the 2nd December 2014 Umkomaas. I'm not disputing that I'm late putting the appeal in. They just hadn't read any of the mitigating circumstances I'd laid out in the appeal. I've emailed again, directing them to these and asking to be considered by the Lead Adjudicator. Haven't heard anything else back yet.

ampersand

..but you know now that mitigation is irrelevant in their world and popla's.
#
Have you yet followed half-way's advice#7, rpt'd by Redx# 8?
You speak of 'writing to PALS' #9

QuestionsQuestions13

Yes ampersand, I've written to PALS demanding they get the charge withdrawn. Am waiting to hear back but am not expecting them to do anything without a lot more pushing!

Half_way

Does APCOA have any right to issue tickets at the Hospital?
following on from Fergies Equality thread https://forums.moneysavingexpert.com/discussion/5049715

I would be tempted to ask all sorts of Questions to the hospital under FOI