Not parked wholly within bay

Simon666

Hi all,
Sorry for new thread but I couldn't find answer.

I received NTK from Norfolk Parking Enforcement (private company) for 'not parked wholly within bay'. I want to appeal and I need a template. I've found something like this but I'm not a lawyer and I don't know can i use it as it is or should I change something (please see below). What about point 2? Should I change it to: 'Your signage was not sufficiently prominent to create any contract'? I have one more question: Do they need to provide a proof, for example picture of my car taken at the place and time given in NTK? They are not land owners, there's a sign 'on behalf of the land owner'. By the way, when you turning left to this car park there is no chance to see it..

Dear {company name},

PCN number xxxxxxx
As the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:

1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner
2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract
3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass

Please issue your standard cancellation letter or a specific, detailed rejection letter. If you choose to send the latter, it must state:

- the legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your recent Notice failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

- if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

- if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

- if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

Take formal note:

(a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

(b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

(c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment.

By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above.

Yours,



{the registered keeper's name}
ADD A SQUIGGLE IF POSTING IT - NO NEED TO USE A REAL SIGNATURE

Thanks,
Simon666

ColliesCarer

That is an earlier version of the suggested 1st appeal template letter.

You will find the current version in the sticky thread **NEWBIES!! ......

IMHO you could use either (if using newer version poss take out the ranty bits para)

The_Deep

A BPA company so GPEOL applies.

If they mention Beavis at appeal counter with case being appealed, no commercial justification, no loss. Have you read the stickies?

I thoroughly dislike this one, it is too ranty, verbose, and not one of CM's better efforts. It will be water off a duck's back to the PPC.

Guys_Dad

Simon666 wrote: »

Hi all,

2) Your signage does not comply with your ATA Code of Practice and was not sufficiently prominent to create any contract.......................

Thanks,
Simon666

I think that if anyone is going to use this point, they need to detail why the signage is non-compliant. Motorists should be able to show what the problem is.

The recent Beavis case suggested that motorists were aware of the contract/licence they were entering into and therefore the stated sum was liable to be paid. However, that requires that sufficient information that was compliant was available to the driver.

However, judges are lawyers and what can bite you can also defend you.

Their lordships referred to POFA which gave PPCs the right to pursue charges - but, in turn, they need to follow their POFA t&c to the letter and, arguably, their own trade association's Code of Practice. Forget the IAS bizarre rulings where observance of the same is treated as optional - the only place you can be parted from your money is a court and they are far more pedantic.

So, find where the PPC fails to use the correct procedures or wording and use it in your appeals.

Grimble

Does his notice to keeper state you have to name the driver to be able to appeal? NEVER name the driver.

Simon666

Thank you for quick reply. Do you mean this one?


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 extravagant and unconscionable when compared to local parking charges issued by the Council so cannot be 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 to deter.
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.

Your clients should be thoroughly ashamed of the shoddy way you treat consumers visiting their premises. 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'. 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.

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 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. Following the EU Consumer Rights Directive, express consent must be obtained for consumer contracts now - not implied consent. You have failed to meet these requirements and you did not serve the driver with the terms by durable medium.

By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above.

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

Yours faithfully,

ColliesCarer

Simon666 wrote: »

Thank you for quick reply. Do you mean this one? ......

Yes, that's the current version of the suggested 1st appeal to the parking company

But personally I would take out this bit .......

Simon666 wrote: »

.....Your clients should be thoroughly ashamed of the shoddy way you treat consumers visiting their premises. 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'. 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.....

Guys_Dad

Again accusations of failure to comply with notices and you would look pretty silly in any court if you could not prove it. Have you got even one example to add to strengthen this point?

I agree with deleting subjective paragraph as advised.

Lastly where is thd challenge to the validity and remit of their contract with client?