PCN from LDK Security Group Limited

WGXH

A further note, and apologies for the double-post.

As per the parking cowboys website page for the Notice to Keeper(apologies, as a new user I cannot provide links), it states that the Notice to Keeper must stipulate the time of issue. Most of the details are filled in- date of notice, charge number, creditor and so forth. However the time of issue has been left entirely blank. Does this hold any relevence for the appeal, either to the PCN or POPLA?

Regards
WGXH

WGXH

Redx wrote: »

I wouldnt worry too much at this stage about any demands on the NTK

all you are doing is appealing an invoice, in order to get it cancelled or go to ADR

I like the above appeal so send it in, with the proof of purchase to make them look silly

chances are they wont even bother studying the appeal, will dismiss it as yet another template, will then use a template themselves as the dismissal and hopefully allow you a code for ADR

REMEMBER, ITS PROFIT AND GREED THAT DRIVES THEM, NOT COMMON SEMSE

How does it feel to be a prophet? Fancy a go on my lotto numbers?

My response from parkingcsl has been received- by email, no less, when my submission expressly ticked the box that I did NOT want correspondence in that format.

Furthermore, it is obvious at a glance that they have not even read my appeal letter.

Response of ParkingCSL:


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Thank you for your email regarding the above Parking Charge Notice (PCN).


I have carefully reviewed the case and have considered the points that you raised. Unfortunately, I cannot cancel the PCN and it is still payable. I have explained my findings in more detail below.

My findings

The site in question is subject to terms and conditions, which are stated on signs throughout the area. As these terms were breached on the date in question, a PCN was correctly and legitimately issued.

Internet templates

I must also stress that simply sending in standard template responses, most likely obtained from the internet, will not resolve the matter. In addition, I would recommend that professional legal advice be sought on this matter as an alternative.

Harassment

Harassment has been referred to and therefore I feel obliged to point out that under S1(3)© of The Harassment Act 1997, a course of conduct that someone alleges to be harassment will not be deemed so if the person who pursued it shows that in the particular circumstances the pursuit of the course of conduct was reasonable.

Under the circumstances our course of action has been entirely reasonable and in no way reaches the high threshold of harassment. Our company has legitimately pursued recompense for a breach of the terms and conditions attached to our client’s site.

Court action

I feel obligated to inform you that, under the Pre-Action Protocol of the Civil Procedural Rules, court action must only be viewed as a last resort. I am attempting to abide by this direction by trying to settle the matter amicably without court involvement.

Your actions may be viewed as obstructive to this aim and will be made clear to the court should the matter escalate to such a stage.

Landowner’s authority

We act upon the behalf of our client, who in turn acts upon the behalf of the landowner as their authorised agent. At this stage, we are not obligated to provide you with either the landowner’s contact details or with a copy of the agreement made between our client and the landowner and therefore will not be doing so. However, if the matter does proceed for legal action, all relevant documentation will be provided to the court.

Legal basis

The claim in question is based in contract law. When you parked your vehicle on the site in question, you contractually agreed to abide by the terms and conditions attached to that site. As stated, these terms and conditions are adequately displayed on signage at the site. If you did not wish to abide by these terms and conditions, you were under no obligation to park on the property in question.

Amount charged

If you refer to the British Parking Association’s code of practice, you will discover that the sum in question is within what this body deems reasonable.

I also draw your attention to the landmark decision made by the Court of Appeal in ParkingEye vs Beavis [2015]. Following the judgment made by three senior judges, which is currently subject to an appeal, it was ruled that the parking charge issued in this case "was not extravagant or unconscionable", "held that a motorist who parks his car in the car park does so on the terms displayed in the notices" and was "enforceable under common law".

In the case of the present parking charge, we believe that similar conditions apply.

A transcript of the decision can be found at: [link to Beavis v ParkingEye]

Therefore, if you are still refusing to pay the charge then I strongly suggest that you obtain professional legal advice.

I would also like to remind you that when you parked your vehicle on the site in question, you contractually agreed to abide by the terms and conditions attached to that site. As stated, these terms and conditions are adequately displayed on signage at the site. If you did not wish to abide by these terms and conditions, nor accept the charges incurred should they be breached, you were under no obligation to park on the property in question.

What you need to do now

You now have three options to choose from:

1) Pay the PCN at the prevailing sum of £125.00 by 3rd August 2015.
Payment can be made online or by phone. Go to [parkingcslwebsite] or phone 0208 528 4122. You can find full details of how to pay on the PCN issued to the vehicle and/or on the letter(s) sent if applicable.

2) Make an appeal to POPLA (Independent Appeals Service) by completing the provided appeal form or by making an appeal online at [POPLA website] (verification code: xxxxxxxxxx). The only grounds for making an appeal are highlighted within the form provided and to be considered the appeal must be received by POPLA within 28 days of the date of this correspondence. Please note that if you opt to appeal to POPLA and the appeal is unsuccessful you will be only able to settle the PCN at the full amount of £125.00.



3) If you choose to not make payment or appeal, the amount outstanding may be sought via a debt recovery company and/or court action where further costs may be incurred as a result.



Kind Regards


XXXXXX

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So; I can't help but notice how they refer to me as the driver in question, when I have explicitly disputes as the registered keeper. They have also sidestepped many of the points that were brought up, and harassment was not even mentioned. They have disregarded the ACTUAL SCAN OF THE TICKET.

Starting to work on the POPLA appeal letter now. Is it usual this company provides a POPLA code immediatly? Is it worth mentioning to POPLA that this obvious standardised template does not refer to the majority of points raised in mine and does not address me by name, or as the keeper and assumes I was the driver?

I need advice, please. and while I work on my POPLA letter, I will try to suppress the stress induced panic attacks.

Regards
WGXH

Redx

looks like a typical DRP rejection template to me (loads of them with MY FINDINGS in them , plus the amount asked for exceeds £10 , which it will do as DRP want their fee

so its a DRP back office reply even though you appealed to the PPC (I assume)

experience of reading many threads tells us how these things go

and yes they should issue a popla code with rejections, that is in the BPA CoP (although they only tend to do it with appeals within 28 days of the NTK arriving)

now you need to look at recent popla appeals from 2015 , say in the last few months, and draft your own in WORD (or notepad or wordpad)

and check the expiry and validity of your popla code at parking cowboys

dont miss that expiry date

make "not a gpeol" the last point too (due to the Beavis case in 3 weeks time)

I doubt that any of these people really read appeals, they just use a template letter to dismiss the appeal , remember , they just want your money, nothing else

WGXH

Thanks red. You're a godsend. Working on the POPLA letter now- will no doubt have it up for review for the weekend, and plan to submit it next week.

The NTK came from parkingcsl- the only place to submit an online appeal. and they appear to be a branch of debt recovery plus, so you're not off in your assertions in any direction. I did make my appeal FAO LDK Security, but evidently they didn't read even that part.

Regards
WGXH

Marktheshark

General point I doubt has been thought about before.
They Mention "agent"
Someone who claims to be acting as an agent.
In a contract that agent would have to be subject to a Tri-party agreement and therefore has to act as agent for both parties as intermediary in the contract.

Therefore, if they claim to be an agent, sack them.

I bet they have not thought of that one.

OK so you state you are an agent and we therefore have a tri-party contract.
Bye, you are sacked as agent.

WGXH

Okay, here is my first draft for a POPLA Appeal. Any and all feedback is welcomed. I've looked around a few POPLA appeals and taken appropriate bits and bobs- hopefully it is as strong as possible and will hopefully put this nightmare behind me.



###########################################################


Dear POPLA,
I am the registered keeper & this is my appeal:
1) No contract breach would have occurred.
2) The Charge is not a genuine pre-estimate of loss
3) Lack of Signage- no contract with driver
4) Lack of standing/authority with landowner
5) Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012
6) Unreasonable/Unfair Terms
7) Unlawful Penalty Charge

1) No contract breach would have occurred.
The driver has purchased a ticket for pay and display. Due to this, even were a contract to be considered to have taken place, the contract fulfilment on behalf of the driver would have occurred, as he has both paid, and displayed. The ticket was visible to the human eye from outside the vehicle, but clever use of shadow and reflection from a warden on an incentives scheme has misrepresented this fact. Please find attached to this claim a valid ticket for the park in question, purchased on the day of the alleged offense. Also find attached pictographic evidence of the ticket being visible.

2) The sum charged is extravagant, and not a genuine pre-estimate of any loss incurred.
I preface this point with a scan of the signage in question.
The payable sum of £125 is above the BPA code of practice, and the payment of £60 within 14 days of receiving a charge is clearly above the mandatory 40% discount- as £90 would go down to £54.

This car park is Pay and Display and as established above, far as I can ascertain as keeper, a payment was made. Having received the Notice in the post I had very little information (see point #5) so went and checked the signage and it seems that up to 8 hours would have cost £2.50 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £2.50 at the most. LDK Security Group has not told me these details, despite it being a prerequisite of Schedule 2 (see point #5).

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms...-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Supreme Court by Mr Beavis regardless, due to be heard in July 2015). POPLA Assessor Chris Adamson has stated in June 2014 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.''

3) Lack of signage - no contract with driver
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

3.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B.. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because LDK Security are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) LDK Security Group have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival. The signs on entry are on walls with the spy cameras attached and these cannot be read by a driver in their vehicle entering the car park. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park.

3.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.
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”.
LDK Security Group needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor 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.

BPA Code of Practice section 18:
''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.


4) Lack of standing/authority from landowner
Even had the ticket not been displayed, LDK Security Group has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put LDK Security Group to strict proof of the contract terms with the actual landowner (not a lessee or agent). LDK Security Group have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. 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. No evidence has been supplied lawfully showing that LDK Security Group are entitled to pursue these charges in their own right.

I require LDK Security Group to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

5) Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the date of issue of an alleged PCN. As it lacks this information, it is non complaint under the POFA 2012, Schedule 4. Furthermore it additionally states on the rear of the Notice to Keeper that “the charge relates to the period immediately preceding the time of issue”- which has expressly not been provided.

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates. '

As the Notice to Keeper provided has no period of parking stipulated therein, It is also not compliant with the BPA Code of Practice. Quoting the BPA Code of Practice, page 20-21, section 36.1a:
“A parking charge notice, however it was served, has not been paid or challenged within the time allowed, you may take further management action to get payment of the amount due. All management action you take must keep to the Code. The stages of management action, and the requirements for each stage, are:
Notice to Keeper/Owner (NTO)
You may send an NTO to the registered keeper at the address provided by the DVLA, no later than 28 days after receiving the vehicle keeper data. If the
driver was not the registered keeper you are allowed an extra 14 days to serve an NTO on the driver from the date you received notification. When writing you
must include the following information:
…
5)the details of the unauthorised parking event, including the place, date and time
…”

The NTK is a nullity so no keeper liability exists. Due to this, I correspondingly request the appeal be upheld as the parking company has not met the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As the parking company have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.
Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.


6) Unreasonable/Unfair Terms

Even if the circumstances included the ticket not on display, 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. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.



7). Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


As an addendum, with my appeal as the registered keeper of the vehicle with PCS, my initial appeal was not even comprehended correctly. I have disputed as the Registered Keeper and expressly stated that no admissions to whom the driver was can be assumed. Nevertheless, under the headings of “Legal basis” and “Amount charged”, the 'Collections Manager' directly states that I was the driver- something which has specifically not been confirmed or agreed in any correspondence. It also mentions Harassment- something not even brought up. It Is my opinion that my initial appeal was not even regarded.


I therefore respectfully request that my appeal is upheld and the charge is dismissed.

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Any tips or advice?

Regards
WGXH

enfield_freddy

Marktheshark wrote: »

General point I doubt has been thought about before.
They Mention "agent"
Someone who claims to be acting as an agent.
In a contract that agent would have to be subject to a Tri-party agreement and therefore has to act as agent for both parties as intermediary in the contract.

Therefore, if they claim to be an agent, sack them.

I bet they have not thought of that one.

OK so you state you are an agent and we therefore have a tri-party contract.
Bye, you are sacked as agent.

not so , in a email from the BPA , they state that a parking Co can use an external company to handle the appeals , much as a "customer" can use a forum or a parking appeal Co to handle their work

WGXH

enfield_freddy wrote: »

not so , in a email from the BPA , they state that a parking Co can use an external company to handle the appeals , much as a "customer" can use a forum or a parking appeal Co to handle their work

Yeah, I thought that train of logic wasn't going to hold up. It's just this POPLA Appeal now I need to do.

If anybody has any feedback, I'd be very grateful.

Regards
WGXH

WGXH

POPLA appeal successful. I have posted it in the sticky. This forum has been a godsend.

Thank you all for your advice!

Kind Regards
WGXH

Umkomaas

WGXH wrote: »

POPLA appeal successful. I have posted it in the sticky. This forum has been a godsend.

Thank you all for your advice!

Kind Regards
WGXH

Well done, thanks for posting on the POPLA Decisions sticky. Please read the comments and request I posted immediately after your decision's post.

Good work.