PCN NTK from NPE whilst waiting in car

totallytech

Hi,

I'm currently going through an appeal with NPE for myself however this relates to one of my friends. She has asked me to help her with this PCN.

24-04-15 19:05, the driver pulls in to a parking space in front of some shops which are closed to wait for a friend. (Signage says no parking, not no waiting).

24-04-15 19:20 the driver is still sitting in the car with the engine running waiting for the friend, who arrived shortly afterwards, they leave.

28-04-15 NTK issued for unauthorised parking.

There are 2 photos via anpr camera - 1) showing numberplate timed-19:07 and the second showing the back of the drivers head (unable to confirm the person) timed-19:20

I want to appeal so I'm thinking something like my other one:

Dear Sirs
Re: PCN No. 0000XXX

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.

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 mycosts. 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,
XXXXX
Registered Keeper

Is there anything I can say about the driver not parking as they remained inside the vehicle with the engine running or was the driver actually "parked" as it was for at least 13 mins?

Do you think I should add anything else?

bod1467

The driver was still parked. Just because the engine was running and the driver was still in the vehicle doesn't change the fact.

BUT ... just treat this like any other PCN.

bazster

"Parking" and "waiting" are the same thing. You were there for 15 minutes therefore you were parked, whether you were in the car or whether the engine was running is irrelevant.

In order to head off Beavis you could stress that the shops were shut therefore there can be no possible commercial justification for a charge which is clearly not a GPEOL.

totallytech

Thank you for the clarification on the parking / waiting issue. I wasn't sure if there was a point to raise it which is why I was asking

I will amend to:

The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. The shop that the driver was waiting in front of was closed and so there is no possible justification for a charge to be issued. It is a disguised penalty and not commercially justified.

Hows that sound?

The_Deep

You were definitely trespassing and your appeal is a bit of a rant. Cut out the bluster and concentrate on GPEOL, signage, and contract.

totallytech

The_Deep wrote: »

You were definitely trespassing and your appeal is a bit of a rant. Cut out the bluster and concentrate on GPEOL, signage, and contract.

Ok, so amended to:

Dear Sirs
Re: PCN No. 0000XXX

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. The shop that the driver was waiting in front of was closed and so there is no possible justification for a charge to be issued. 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.

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 mycosts. 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,
XXXXX
Registered Keeper

Is this any better?

I'm assuming I need the "Formal challenge, 2. Drop hands offer & 3. Notice of cancellation of contract" section?

The_Deep

I'm assuming I need the ... 2. Drop hands offer & 3. Notice of cancellation of contract" section?

Why? It is a meaningless rant imo.

ColliesCarer

totallytech wrote: »

The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. The shop that the driver was waiting in front of was closed and so there is no possible justification for a charge to be issued. It is a disguised penalty and not commercially justified.

Would suggest you amend the above to something like

The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. In addition the charge is not commercially justified because at the time of the alleged event, the shop (in front of which you claim the vehicle was parked) was closed therefore there can have been no loss to either yourselves or the landowner. I therefore contend it is a disguised penalty and is unenforceable.

totallytech

The_Deep wrote: »

I'm assuming I need the ... 2. Drop hands offer & 3. Notice of cancellation of contract" section?

Why? It is a meaningless rant imo.

I assumed it would give them a firm "I'm not just rolling over" message?

I now have

Dear Sirs
Re: PCN No. XXX

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. In addition the charge is not commercially justified because at the time of the alleged event, the shop (in front of which you claim the vehicle was parked) was closed therefore there can have been no loss to the landowner. I therefore contend it is a disguised penalty and is unenforceable.

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.

Yours faithfully,

Herzlos

The_Deep wrote: »

Why? It is a meaningless rant imo.

I think it makes you look more reasonable should it ever come to court, as you offered them a chance to mitigate their losses.

Notice of cancellation is also standard boiler plate, to reinforce that you don't agree with the contract.

I'd leave them both in. They'll both be ignored anyway but it doesn't hurt. What you're sending at this stage isn't for the PPC's benefit but to cover yourself for future outcomes.

The_Deep

Up to you OP. However, if you take out the barrack room lawyers' language imo you sound more reasonable.