Company car - advice is to appeal early, but how early?

The_Slithy_Tove

You've missed an important point from earlier in the thread, that is Kernow is NOT a legal entity (not a company, and if sole trader does not identify the individual). Therefore there is NO CONTRACT, as it is not possible to enter into a contract with a non-existent legal entity. That alone should be enough to kill it, but add everything else anyway.

frankietwospots

Good point! I'll need to work out some appropriate wording in that case.

frankietwospots

OK, I've added the following para:

Kernow Parking Solutions do not ‘exist’ in the sense that there is no identified legal entity which would be a registered company or an identified sole trader. Kernow Parking Solutions are the latter but fail to identify on their signage and the PCN I was issued with, who that sole trader is. Therefore they cannot claim to have entered into a contract with the Keeper.

Any other advice or suggestions? Thanks in advance.

frankietwospots

Just bumping for any other suggestions/feedback before I get this sent off to POPLA. Thanks in advance.

Coupon-mad

You need to look at the POPLA examples linked in the NEWBIES sticky thread as 3 points of appeal is not enough.

Where's your point about no keeper liability? Did they ever send a 'Notice to Keeper' in the post or was this only a windscreen ticket (what date)?

Where's your point about the amount of the parking charge itself not being prominently displayed in a clear, brief sign near the P&D machines?

And your no GPEOL point needs to be more like recent examples from November/December (the ones linked in the NEWBIES thread post #3).

Get rid of this, it's from an ancient example:

In ParkingEye v Sharma, Case No.3QT62646 in the Brentford County Court 23/10/2013. District Judge Jenkins dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and the landowner, and didn’t create any contractual relationship with motorists who used the land. This decision was followed by ParkingEye v Gardam,Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of£90 were awarded to the Defendant. District Judge Jones concurred with the view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. I submit that this applies in my case as well because the parking contract- if one is even produced - is a similar business agreement between an agent and landowner and nothing more.

frankietwospots

Thanks Coupon-mad - as always, you are super helpful!

I have looked at examples in the Newbies sticky thread but honestly I'm not sure I can include more points of appeal with a genuine reason for doing so.

They did send me a Notice to Keeper in the post and they sent it in time, so I can't get them on that. The Notice to Keeper does appear to comply with POFA 2012 (I've checked it) so I don't think I can include that either.

The parking charges were displayed prominently in the car park. I walked past the sign on the way out of the car park so I can't really say that they weren't there.

I'll check out the recent GPEOL examples and I'll chop out the ancient example you highlighted. Thanks again.

Coupon-mad

I have NEVER seen a compliant NTK, not from any PPC. Can we see the front & back please, just cover the PCN number and your name/address and car reg. You MUST have that point 'no keeper liability'! Also you said it was a lease hire car, so are you telling me the PPC sent you a compliant 'Notice to Hirer' with all the hire documentation mentioned here (which MUST be enclosed):

https://forums.moneysavingexpert.com/discussion/5378874

And it's not just about whether the signs were prominent. Was the fine/charge prominent (not hidden in small print on a wordy sign)?

You MUST say it wasn't - just allege something about the driver did not see any wording about a parking charge of £xx so you conclude the signs (although no doubt there must have been a sign somewhere) were wordy/unclear - because that forces them to have to show the signage in evidence.

Please don't leave either of those out.

Re GPEOL and Beavis:

https://forums.moneysavingexpert.com/discussion/comment/69765689#Comment_69765689

HTH

frankietwospots

Thanks again Coupon-mad for your help! In lieu of attaching a copy of the NTK (it's at home and I'm at work), I've revised my letter as follows.

You are absolutely right about the Notice to Hirer etc.. I didn't receive any of that. Also, looking back at my photos of the car park signage, the wording regarding PCN is tiny so I've added that bit in. I've also updated the GPEOL part.

REVISED APPEAL LETTER:

Dear POPLA,
KPS PCN serial number: xxxx
POPLA verification code: xxxxxxxxxx
As the vehicle in question is a lease car and was under my signature on the date this Parking Charge Notice was issued I take responsibility as registered keeper. I wish to appeal this parking charge notice from Kernow Parking Solutions. I believe I am not liable for the parking charge on the following grounds:

• On the date the vehicle was parked in the car park in question, a ticket was purchased that was valid for the duration that the car was parked (see enclosed photo of valid ticket which is still in the registered keeper’s possession).
• Due to excessive and extreme windy conditions on the day in question, and a lack of adhesive on the reverse of the ticket, the ticket had been blown off the dashboard when the parking official attended the site.
• The Notice to Keeper is not compliant with the POFA 2012 – therefore, there is no keeper liability
• Kernow Parking Solutions do not identify their sole trader on their signage at the car park in question, nor on the PCN that was issued. Therefore they cannot claim to have entered into a contract with the Keeper.
• The charge of £100 is disproportionate and not a genuine pre-estimate of loss
• This transparently punitive charge by Kernow Parking Solutions is a revenue-raising exercise and is therefore unenforceable in law.
• The wording on the car park signage regarding PCN charges was small and unclear. Inadequate signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice.

The specific points of this appeal are expanded on below as follows:

1. No keeper liability and failure to comply with POFA 2012
2. No standing or authority to pursue charges nor form contracts with drivers

3. No genuine pre-estimate of loss

4. Unlawful penalty clause
5. Inadequate signage – no contract agreed to pay £100


1) No Keeper Liability and failure to comply with POFA 2012
I contend that the Notice to Keeper is not compliant with the POFA 2012 on two points:

A) The Notice to Keeper does not state the amount that should have been paid
Failure to comply with paragraphs 13 (2) and 14 (2) of POFA 2012

A) As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was a failure to pay. This does not create any certainty of terms, but instead leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. KPS is required under POFA 2012 to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:

''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

As stated in paragraph 13(2) of POFA 2012...

"The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) A copy of the hire agreement; and

(c) A copy of a statement of liability signed by the hirer under that hire agreement.

AND

Paragraph 14(2) and (3) of POFA 2012:

(2) The conditions are that —
(a) The creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;
(b) A period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and
(c) The vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.
(3) In sub-paragraph (2)(a) “the relevant period” is the period of 21 days beginning with the day after that on which the documents required by paragraph 13(2) are given to the creditor.[/I]

- KPS were required to send this information to me (as Registered Keeper) within 21 days after receiving them from the lease/hire company (Lex)
- KPS were required to send these documents to me no later than 49 days after the NTK was sent to the hire company
- As this has not happened, KPS cannot use POFA to assume keeper liability. There is more than one driver of the vehicle which KPS placed a PCN on.

In summary:
• I am not obliged to disclose the identity of the driver and this does not affect my liability in this matter
• As KPS has not complied with paragraphs 13 (2) and 14 (2) of POFA 2012, they cannot rely on the provisions of the Act and hold me liable as keeper.

2) No standing or authority to pursue charges nor form contracts with drivers
Kernow Parking Solutions do not ‘exist’ in the sense that there is no identified legal entity which would be a registered company or an identified sole trader. Kernow Parking Solutions are the latter but fail to identify on their signage and the PCN I was issued with, who that sole trader is. Therefore they cannot claim to have entered into a contract with the Keeper.
KPS do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Under the BPA CoP Section 7, a landowner contract must specifically allow KPS to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require KPS to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and without it, KPS have no legal standing nor authority at this site which could impact on visiting drivers.

If KPS produce a 'witness statement' I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor legal standing.


3) No genuine pre-estimate of loss

The charge of £100 is punitive and unreasonable, and contravenes the BPA Code of Practice section 19. The charge is a penalty and not a genuine pre-estimate of loss. In its parking charge notice, KPS has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred. For this charge to be justified, a full breakdown of the costs KPS has suffered as a result of the car being parked at the car park, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.
The Notice from KPS alleges that a breach of the terms and conditions of parking have occurred and so the charge levied must therefore be damages that KPS are seeking in redress. The charge brought forward by KPS has nothing to do with an ‘failure to pay and display’ or ‘vehicle not displaying a valid parking ticket’ as the vehicle was parked on this site for one hour and full payment for this time was made (see copy of valid ticket enclosed).

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, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event, so this charge breaches the code and is unenforceable.
This charge from Kernow Parking Solutions as a third party business agent is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local penalty charge levels in this area. POPLA and Kernow Parking Solutions will be also familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is a penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage". This case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.
Given there has been no genuine pre-estimate of loss the charge levied is unenforceable and the charge should be cancelled.

4) Unlawful penalty clause

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye vSmith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

This transparently punitive charge by KPS is a revenue-raising exercise and is therefore unenforceable in law.

5) Inadequate signage – no contract agreed to pay £100

The wording on the car park signage regarding PCN charges was small and unclear. Inadequate signage breaches Appendix B of the British Parking Association’s (BPA) Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. Nothing about KPS’s onerous inflated 'parking charges' was sufficiently prominent on their signage and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

This concludes my POPLA appeal.

Yours faithfully,

THE REGISTERED KEEPER

frankietwospots

Sorry, but can someone please tell me how to post a photo of my NTK? I've read the guidelines and have obscured the personal details. I've uploaded it to Photobucket and have tried copying the 'direct link' into my reply but it's not working. Do I post it as a URL link or an 'insert image' link? Sorry for being dense.

Coupon-mad

I think post a URL link.

Just a quick change to this sentence needed, because you are never the 'registered' keeper and I would remove 'take responsibility':

As the vehicle in question is a lease car and was under my signature on the date this Parking Charge Notice was issued, I was the hirer/keeper on that day. However, there was more than one possible driver and the operator has failed to show any evidence of who was driving, so the POFA 2012 must have been complied with, if they were to hold me liable as hirer.

Also, I don't think you ever got a NTK anyway did you? Wasn't this only a windscreen ticket with no NTKeeper or NTHirer sent at all? If I am right with that, then paragraph 9 of Schedule 4 does not apply. Paragraph 8 does instead (plus the parts about Notices to Hirer). Kernow never knew you are a hirer did they, LOL, they were told you are the keeper only, which was fine from your point of view because on that day, you were the keeper of the vehicle. What fun to now divulge you were the hirer/keeper!

Generally, where the PPC has failed to get data from the DVLA, I recommend wording like this:

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ or 'notice to 'hirer' (in this case) compliant with certain provisions. This operator failed to serve a ‘notice to keeper’ at all, has never obtained the keeper's data from the DVLA and now it is too late. As there has been no admission regarding who was driving and no evidence of this has been produced, it has been held by POPLA multiple times in 2015 that a parking charge cannot be enforced against a keeper or hirer in the absence of a NTK or Notice to Hirer.

You need to time your POPLA appeal to be submitted near to the POPLA code deadlines (later not sooner) so that Kernow can't send a NTK in the post before day 56. I reckon if your POPLA code is valid until the first week of January (check it using the Parking Cowboys code checker) then that's when you need to submit this appeal, to leave Kernow up the creek without a paddle. It's REALLY important because if you send the POPLA appeal too soon, technically Kernow 'could' get the keeper data from the DVLA and that would be the lease/hire firm. But once past day 56, they can't.

IMHO, Kernow won't contest this. They usually send no evidence to a decent POPLA appeal.