Wrong car details

Hot_Bring

Point 3 should actually be point 1.

hannah1313

I have amended and added to my letter as follows...

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

Explained below:



1. 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.'




2. 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.


3. Failure to meet the requirements of POFA 2012.

Please refer to Schedule 4 of the Protection of Freedoms Act (POFA) 2012 as detailed below,

7(1)A notice which is to be relied on as a notice to driver for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph 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;
(4)The notice must be given—
(a)before the vehicle is removed from the relevant land after the end of the period of parking to which the notice relates, and
(b)while the vehicle is stationary,
by affixing it to the vehicle or by handing it to a person appearing to be in charge of the vehicle.

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 .




5. 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.

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.




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

Sorry Hot Bring - just saw your reply after hitting enter! I can amend this to switch the points around. Thanks!

hannah1313

I happily received the below email on 10th September
Dear Sir or Madam
XXXXX(Appellant)
-v-
LDK Security Group Ltd (Operator)
The Operator has informed us that they have cancelled parking charge notice number XXXXX, issued in respect of a vehicle with the registration mark XXXXX .
Your appeal has therefore been allowed by order of the Lead Adjudicator.
You are not liable for the parking charge and, where appropriate, any amounts already paid in respect of this parking charge notice will be refunded by the Operator.
Yours sincerely,
Richard Reeve Service Manager

hannah1313

However I have now received an outstanding parking charge notice for £125.00 from LDK. The notice is dated 09/09/2015 and notes the parking charge date as 26/05/2015 (the date of the notice I have just successfully appealed). I'm unsure whether to just ignore this latest letter or to contact someone (either POPLA/ LDK) as presumably it has been sent in error? If anyone has any help to offer it would be much appreciated! (And thank you for helping with my appeal too!)

enfield_freddy

sit tight , let them continue to write for a while , THEN inform the BPA?POPLa of there continued harassment , including scans of there letters , and your free ticket from POPLa

Umkomaas

Revenge is a dish best served somewhat cold.

See what happens from here, then slam in the complaints as advised by Freddy. Please do this as it will give back to the PPC some of the pain exacted on you - and it might well help other motorists faced with similar circumstances.

Ralph-y

me thinks that this might well be another one for Parky ?

Ralph:cool: