Wrong car details

hannah1313

Hi - I've looked through the forum posts but none quite seem relevant to my exact situation.

I had parked my car in an LDK security group car park and was late in returning to my car and found I'd been given a parking charge notice. The details given on the PCN are for a completely different vehicle (red Volkswagen is named and I drive a white Mini) and the wrong car park location is given too. Clearly the ticket issued was for this other vehicle (I'm not sure where mine ended up) but I thought as such, it became invalid however I have now received a NTK listing my car details correctly.

I have the PCN I was originally issued to appeal with. Is this what I should do?

Any help is much appreciated - thank you!

Dr._Shoe

No, appeal on the NTK.

Chances are the parking control operative just put the wrong ticket on your car and put "your" ticket on another motor.

Don't forget to withhold the fact that you were the driver .

atilla

Dr._Shoe wrote: »

No, appeal on the NTK.

Chances are the parking control operative just put the wrong ticket on your car and put "your" ticket on another motor.

Don't forget to withhold the fact that you were the driver .

Especially if he/she was ticketing a batch as in a complete row of cars in the hope most will pay up.
Certainly an old excel trick.

hannah1313

Thank you for your help - should I deviate from the standard template from the Newbies section and write my own in the third person?

enfield_freddy

or you could ring up LDK security , explain that they have placed the wrong ticket on your car , after telling them your full name and address in order for them to save £2.50 in DVLA fees ..




NOT

Umkomaas

hannah1313 wrote: »

Thank you for your help - should I deviate from the standard template from the Newbies section and write my own in the third person?

Go ahead - if you know what you are doing!

How do you think you can improve on a carefully crafted working of the correct wording, drafted by one of the most experienced private parking appeals people in the country?

Let's see it before you send it!

hannah1313

Hi - the PCN appeal (I used the given template) was rejected with the reason 'vehicle was not parked within the markings of an authorised bay' and accompanying photos. I received my POLPA verification code and will continue to appeal under the grounds 'I am not liable for the parking charge'. When stating my reasons should I still speak in the third person? I was going to write 'The PCN attached to the vehicle gave inaccurate details and thus renders the PCN invalid'. If anyone has any other suggestions or thinks that doesn't work then your advice would be much appreciated! Thank you

The_Slithy_Tove

Your POPLA appeal should be based on LOTS of points, not just one. You need to throw the kitchen sink at them. That's why the NEWBIES thread contains all the POPLA appeal points you need. There are also loads of examples in other threads. Use one of them, edit carefully, making sure the details are correct. Remember that the NTK must be non-conformant for POFA as the details don't match those on the NtD. So keep it in the third person. Post here for review before submitting.

hannah1313

Hi - I have drafted my POPLA appeal letter. Thank you for taking time to help me!

Dear POPLA Assessor,

I am the registered keeper of xxxxxx and I wish to appeal the LDK Security Group LTD PCN xxxxxxxx on the following basis:

1. The Charge is not a genuine pre-estimate of loss.
2. No contract with driver.
3. Lack of standing/authority from landowner.
4. Failure to meet the requirements of POFA 2012

Explained below:

1. The Charge is not a genuine pre-estimate of loss.

The driver, who I am not obliged to name, paid for the above parking in full. Despite the protestations in the rejection letter from LDK Security Group LTD, the truth is there is no implied (or otherwise) acceptance of any charge in the BPA Code of Practice (CoP). In fact the Office of Fair Trading has stated to the BPA Ltd that ‘a parking charge is not automatically recoverable simply because it is stated to be a parking charge.’


This Operator must prove the charge to be a genuine pre-estimate of loss. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. The PCN sum is large at £125 and, regardless of the potential decrease, requires LDK Security Group LTD to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly emanating from a minor alleged breach. There is no evidence of any loss emanating from this parking site.

The operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss could be present. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly be assumed to exist as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. There is no genuine loss being pursued.

This charge cannot be 'commercially justified' so this operator would be wasting their time to adduce the flawed and non persuasive 'ParkingEye v Beavis' small claims decision. POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle 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.''

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.

2. No contract with driver.


There was no agreement to pay. No consideration/acceptance flowed to or from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of LDK and not expecting to read a contract when they arrive to shop. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'


3. Lack of standing/authority from landowner.

LDK Security Group LTD 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 LTD to strict proof of the contract terms with the actual landowner (not a lessee or agent). LDK Security Group LTD 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. No evidence has been supplied showing that LDK Security Group LTD are entitled to pursue these charges in their own right in the courts.

I require LDK 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 CoP 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 CoP, 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.


4. Schedule 4 of the Protection of Freedoms Act (POFA) 2012, paragraph 8 state that the notice to keeper must “state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required”.
LDK have failed to meet this requirement as the details on the notice to driver are not repeated in notice to keeper as they are inconsistent as follows:
Registration of vehicle
Time of alleged offence
Location of alleged offence



In summary, LDK Security Group LTD are attempting to enforce a punitive charge for an alleged infringement which they have no reliable means of proving ever took place at all at the times stated, not having observed nor shown reliable evidence of the parking period at all. I respectfully request therefore, that my appeal is upheld and the charge is dismissed.

Yours

hannah1313

I will attach a photograph of the NtD that was on my car to back up point 4

Umkomaas

This charge cannot be 'commercially justified' so this operator would be wasting their time to adduce the flawed and non persuasive 'ParkingEye v Beavis' small claims decision.

This ship has long since sailed. Beyond this Small Claims Court decision, the Court of Appeal found against Beavis, and the Supreme Court considered the case further last week, but their decision won't see light of day until Oct/Nov at the end of this year.

Put the GPEOL para as the final one (including the bit about staying the case in the context of Beavis). You need to win this on something other than GPEOL (not the silver bullet at POPLA as it used to be in light of Beavis and the Supreme Court).

So you need good substantive arguments on:

Not a PoFA compliant NtK for keeper liability
No Locus Standi
No contract with the landowner
ANPR accuracy (if applicable).

Your draft us certainly on the right lines; just see if you can beef it up further in light of the above - you're not far off.