Letter only from hire company - Advice needed please

Hasslehogg

Coupon-mad & Edna thanks again for your help, really appreciate it

thanks everyone for their replies

hoohoo

As per Edna Basher, they have until 23/2 to send a compliant notice to hirer. So I would sit tight for 3 days before appealing.

Half_way

In who's car park was this?

Hasslehogg

hoohoo thanks i will do.

Half_way home bargains

Hasslehogg

Hi Guys

I have received another letter declining my appeal (template in blue font from Newbies thread). I have been looking at the newbies thread and various posts for appeals similar to mine and found the below appeal which looks pretty close to mine, but it is a little different and this is what has me worried, if you could find time to have a look at it please and any advise you can give would be greatly appreciated again. Here are my letters i received. (if you cant access share let me know please and i will see if i can find a free hosting site)

i tried to attach link and a share for the below but wouldnt let me as new user, anyone know a way to do this please?

1st a copy of the PCN the Hire company received and passed on to me (they also passed on to me a 3rd party representation letter)
2nd the actual PCN i received from Parking Eye
3rd the letter declining my claim and popla reference
4th the sign on enterance to the car park
5th the sign inside the car park (there are a few of these)

Here is the appeal, the problems i am thinking about are:-

They do call me the Hirer in the PCN direct to myself
They do refer to the NTK
The signs although in really small print say "parkingeye ltd is authorised by the landowner to operate this private car park for and on its behalf"
There are a few signs although at least 7 foot in air on lamposts, the 85 fee is in reasonably big font





I write to lodge my formal submission for Alternative Dispute Resolution of my dispute with ParkingEye Ltd regarding the above-detailed Parking Charge Notice (“PCN”) dated 13th February 2016 in respect of an alleged breach of parking terms and conditions at Home Bargains, Jarrow, Tyne & Wear on 15th January 2016. The vehicle in question is on long-term lease to me and I confirm that I am the vehicle’s hirer and keeper for the purpose of the corresponding definitions under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1. Parking Eye Ltd failed to deliver a Notice to Hirer that was fully compliant with the requirements of POFA and consequently it has forfeited its right under POFA to hold the hirer liable for the charge
2. No landowner authority
3. Unclear signage


1. ParkingEye Ltd failed to meet the strict requirements of Schedule 4 POFA

In order to rely upon POFA to be able to hold the hirer liable, ParkingEye Ltd had to deliver a Notice to Hirer that fully met all of POFA’s strict requirements. I set out below the reasons why Parking Eye failed to do so.

ParkingEye Ltd’s Parking Charge Notice (“PCN”) stated that either a) I was the registered keeper of this vehicle on 15th January 2016 or b) I had been named by the registered keeper as the driver when there was a breach of terms and conditions of parking.

Neither of these statements was true because a) the vehicle’s registered keeper is the lease company, Leaseplan UK Ltd and b) the registered keeper had provided ParkingEye Ltd with my details as the vehicle’s hirer, not driver.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA; the conditions that the Creditor must meet in order to be able to hold the hirer liable for the charge are set out in Paragraph 14. Paragraph 14(1) of Schedule 4 of POFA specifies that if (a) the creditor is by virtue of Paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and (b) the conditions mentioned in Paragraph 14(2) below are met, the creditor may recover those charges (so far as they remain unpaid) from the hirer.

Paragraph 14(2)(a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (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), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). Notwithstanding its failure to deliver a Notice to Hirer, ParkingEye Ltd did not provide me with copies of any of these documents.

Paragraph 14(5)(b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. ParkingEye Ltd’s PCN makes no reference to the Notice to Keeper, let alone referring the hirer to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that ParkingEye Lrd did not provide me with a copy of the Notice to Keeper as required under Paragraph 14(2)(a). Consequently, ParkingEye Ltd failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2).

Furthermore, ParkingEye Ltd failed to comply with the requirements of Paragraph 14(5) including:

Contrary to the requirements of Paragraph 14(5)(a), ParkingEye Ltd’s PCN did not inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the Notice to Keeper) may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), ParkingEye Ltd’s PCN did not refer the hirer to the information contained in the Notice to Keeper (indeed, the PCN does not even refer to the Notice to Keeper);
Contrary to the requirements of Paragraph 14(5)(c) ParkingEye Ltd’s PCN did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.
Contrary to the requirements of Paragraph 14(5)(e) ParkingEye Ltd’s PCN did not identify the creditor.

Given its failure to deliver a compliant Notice to Hirer, ParkingEye Ltd’s claim must be determined as being invalid

2. No landowner authority

The on-site signage states in small text (illegible from a vehicle driving in/out of the site) that ParkingEye Ltd are acting 'on behalf of' the landowner; this specific wording indicates the operator has no right to sue in their own name. Under the law of agency, a contract to be made by an agent 'on behalf of' a disclosed principal is considered to be the contract of that named principal, the latter retaining control/liability. ParkingEye Ltd are not a party to the alleged contract formed between a driver and principal (landowner) and they cannot enforce it in their own name.

I put the operator to strict proof of their landowner contract, including proof that they have the right in their name, to 'enforce charges in the courts if necessary'. Anything less is not only a breach of the BPA CoP but renders the parking firm with no standing, with no more powers than any other standard contractor (e.g. a cleaning firm) over visitors to the land.

3. Unclear signage

The signs on site are not well-placed or legible from points within the car park, so it is likely a car driving in and out will not have have passed a readable sign with full terms nor with the 'charge' in large font. This renders this site non-comparable with the car park in ParkingEye v Beavis and is evidence that no contract was formed at all.

In particular the £85 sum of the charge is not clear/legible in 'large lettering' on the signs. This contravenes Schedule 4 of the POFA which requires 'adequate notice of the charge' as a matter of statute.

This case is not like the Beavis case in terms of the signs, the agent/principal interests and lack of commercial justification so that case is not an authority upon which this operator can rely.

It is far more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000

link

No terms capable of being seen and read = no contract formed, as was found in Vine at 40:

''Mrs Vine did not see the sign...that is sufficient for her to succeed on the facts of this case. I would also find, if it were necessary to the decision, that the sign in this case was not sufficiently prominently and clearly positioned and displayed to sustain any contention that she consented to, or willingly assumed, the risk...It was not intrinsically obvious, apart from signs, that the area where Mrs Vine parked was private property. [...] The sign, which Roch L.J. has described, was...not on the occasion in question visible from the driver's seat of Mrs Vine's car when she parked it.''

This is binding case law; a Court of Appeal decision far more applicable than the irrelevant 'Beavis case' in a situation where a car was only very briefly on site and the driver had no fair opportunity to learn of terms by which they would be bound. There is not even any evidence that the car actually parked nor that the driver 'stayed' (clearly they did not) so it is argued that the terms were neither communicated nor breached. It is also impossible to read from a car before parking, any small print about how the data captured by ANPR cameras will be used so a driver has no idea they are being timed before the car is even parked for any 'stay' and certainly did not consent to pay £85 for a few minutes driving in and out.

Hasslehogg

1st a copy of the PCN the Hire company received and passed on to me (they also passed on to me a 3rd party representation letter)



2nd the actual PCN i received from Parking Eye



3rd the letter declining my claim and popla reference



4th the sign on entrance to the car park



5th the sign inside the car park (there are a few of these)

Edna_Basher

Hi Hasslehogg

I see your wording under Point 1 (Non-Compliant Notice to Hirer) has been drawn from a Euro Car Parks POPLA appeal. This needs to be tailored to fit the reasons why ParkingEye's Notices to Hirer don't comply.

In true Blue Peter style, I'll dig out a paragraph or two that I prepared earlier to suit ParkingEye.

Hasslehogg

thanks very much Edna, do you need to see the PCN's etc as i am having trouble posting them, tried photobucket as well, but its not working

Edna_Basher

Thanks Hasslehogg

There's no need to post pictures of ParkingEye's Notice to Hirer - we're already quite familiar with the content

Hasslehogg

all files here

app.box.com/s/0qs5xcemzckm6z6nu7zgtr956vz1ctx4

add h t t p s : / / on the front without spaces please