Attempt to appeal at Debt Collection Stage

zzalsar4

Hi,

I am aware that the most recent advice is to appeal PCNs at the earliest opportunity, but for whatever reason, I ignored two notifications from "Care Parking" and have now received my first Debt Collection notice. I have decided that I actually do want to appeal the notice rather than ignore it, as it would avoid any court visit and I do believe the penalty was unfair.

The details are that I parked in a car park of a closed store in the dark and therefore didn't think that there would be any issues, particularly, as I didn't see any signs suggesting they used number plate recognition (or any signs at all in fact having left the car park via the entirely open an unsignposted side). I left the car parked for over 3 hours but apparently the site has a 2 hour limit (even though the store was closed!).

Here is the letter I intend to send to attempt the appeal, based on a mixing up of other letters I have seen recently. I would appreciate it if someone could look at this and advise me if it looks reasonable, or if I have tripped over any recent changes in the law or policy.

Sorry, it is a long one!

Andrew

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Dear Sir or Madam,

Re: PCN No. xxxxxx

I write to you regarding a recent letter from Equita regarding what I can only assume is the above PCN from yourselves, Care Parking; although the PCN No. matches the above, the letter refers to Anchor Group Services Ltd, but I have received no such PCN from any such named company.

From this template letter, and your previous notices, it is clear that:

1. Your charge is for a 'breach of the terms and conditions' and yet clearly it is not a genuine pre-estimate of loss. As such, this is a breach of the BPA Code of Practice. As no loss has been established whatsoever, this charge is also unenforceable in contract law and indeed the Office of Fair trading stated to your Trade Body 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. Parking charges cannot include tax-deductible business costs for running a parking company, such as site signage and maintenance, staff employment, membership fees, postage, etc. It should not be recoverable as it is being enforced purely as a penalty. Since there is no other income at this site, PCNs for alleged 'breach' represent the only profit for Care Parking and it is clear that you cannot be operating at a permanent loss. The fact that the 'charge' is fixed at the same cost, whether the allegation is a serious matter of obstruction or a trifling matter (such as a few minutes perceived overstay) shows it to be merely a penalty where no loss exists.

2. The charge has no “commercial justification”; it is punitive, relies on obfuscation by a mere agent with no standing nor authority and it is not in the legitimate interest of your principal to proceed. A complaint has already been lodged with your client and will be escalated if you do not cancel this charge. POPLA are not accepting your spurious 'commercial justification' argument and I expect a court Judge to see through this too. The fact that the alleged breach occurred outside of the clearly displayed opening times of the store when the car park was otherwise unoccupied only highlights this point.

3. Your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your signage is not sufficient to create a contract between Care Parking and the motorist because it is unreadable, being placed eight or nine feet up on a pole, far too high to be in a driver's line of vision on arrival, before parking. Additionally, the signs are not directly lit which would indicate that the contract is intended to be formed outside of the clearly displayed opening hours of the store at the site, at which the driver might arrive in the dark; instead the entire site is only lit by general lighting that has been in place for a number of years, and is a further eight or nine feet above the signs in question. Not only does this breach the BPA Code of Practice on mandatory entrance signs but it fails to create any contract at all when a driver does not see the terms before parking, as in this case. Even after parking, it is all too easy to leave the site never having seen the signs, as the site is not fenced off along the entirety of Chalon way, leaving the driver unaware of any contract that might have been established. Again, this is against the BPA Code of Practice, since the driver did not have a chance to decide against agreement with the terms of the contract before leaving the site.

4. Your signs do not mention that you make use of ANPR on the site, again against the BPA Code of Practice. This is particularly relevant as the alleged breach occurred outside of the clearly marked opening hours of the store on site, and so the driver could not have been made aware that any enforcement of any contract could be made, even if the signs were sufficient, and thus any such driver would assume that the signs were not relevant outside of the opening hours of the store.

5. I understand you do not own the car park and you have given me no information about your policy with the landowner or on site businesses to cancel such a charge, and I consider that there is reasonable doubt that you have written authorisation in place with the landowner, specifically allowing you to form contracts with drivers and to pursue unpaid charges to court in your own name and that you may be a mere agent. Clearly I will require sight of your unredacted contract to make an informed decision about my position, prior to any proceedings and I will consider the fact you are withholding this vital information as proof of inherent flaws in your case. A witness statement will not suffice and will no doubt raise more issues, so please supply that policy as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner. The alleged breach occurred outside of the clearly stated opening hours of the store on site, and you have never made it clear that this would have exempted them for any charge, if they had known your secret 'user manual' terms in the landholder contract. This is a misleading omission - an unfair, hidden but vital term which must be communicated at the point of alleged contract - and therefore any alleged contract causing loss or detriment to me is unenforceable.

Resolution of the Dispute - ADR (POPLA)

I would suggest that this matter is resolved using the bespoke ADR for private parking, POPLA, to save your wasted costs and the court's precious time. The above points can be considered to represent my appeal points in order to prompt a rejection letter and POPLA code now. If we use POPLA, as you are aware your costs will be a mere tax-deductible £27. If you use the court, then you will incur further costs, including £15 filing fee, £25 hearing fee, and approximately £250 as costs payable for your legal representative from LPC Law or other firm.

Failure to agree to my offer of both parties abiding by a POPLA decision would be evidence of Care Parking failing to mitigate your alleged loss which I will draw the court's attention along with your unreasonable behaviour, obfuscation and delay. I will also invite the Judge to apply the principle of Halsey v Milton Keynes General NHS Trust [2004] EWCA Civ 576 regarding costs.

If you reject this resolution and proceed to court I will robustly oppose any costs over £27 and will in my first defence statement, ask the court to stay the case and insist on a POPLA decision instead. I am aware that in many cases in the public domain, parking organisations have issued POPLA codes much later than your self-imposed 28 days guideline and indeed POPLA have confirmed that a code can be issued by the operator at any time. The 28 days is merely a time limit that starts when the code is generated and sent to the motorist and I will state this fact to the court if Care Parking suggest otherwise.

There is a history of a compelling initial order in the Croydon County Court where a similar claim by ParkingEye was stayed by order of the court and they were required to issue a POPLA code instead. I will point that out to the court at the earliest opportunity along with your refusal to mitigate your loss and consider the obviously appropriate ADR.

Please do not send me a generic template letter which does not address my requests for information because I shall send all correspondence to the Solicitors Regulation Authority and ask it to investigate your breach of the Principles set out in the SRA Handbook version 8, published on 1st October 2013.

I look forward to hearing from you within 14 days with either:

- the documents you intend to rely upon in these proceedings including your unredacted landholder contract and user manual, or

- a rejection of each of the previously numbered points, along with a POPLA code, or

- confirmation that this matter is not proceeding and the charge is cancelled.
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Umkomaas

How long ago was this parking incident? But if you're at debt collector stage there's really no prospect of making any meaningful appeal, so not much point in wasting intellectual effort pursuing one.

Chances of this ending up in court:

http://www.bmpa.eu/companydata/Anchor_Security_Services.html

zzalsar4

The incident was at the end of March. I assumed it was sent in error (i.e. automatically) really given that the store was closed at the time.

Thanks for the information about court cases - I didn't realise they had literally never taken someone to court! I guess this could be because lots of people just pay up of course, but I would guess there would have been at least one.

In that case, I might wait until an actual court case occurs or at least a pre-court-case letter.

Thanks - much reassurance!

Andrew

hoohoo

I would advise at least one email, just in case they ever do court.

Dear x,
The debt is denied. (some of your reasons here, but just a one liner for each). I am open to the possibility of alternative dispute resolution. Failing this, I suggest we use the pre-action protocol
https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

Umkomaas

That's all you can really do at this stage. But if you're a regular customer at the store (previous receipts/cc/bank statements) you should complain to the retailer and ask they get the charge cancelled.

zzalsar4

I have complained to the retailer, and they so far claimed that they are not in control of the car park.

I have of course responded that this cannot be true and indicated that I would be put off parking there again and so no longer use their store. I am awaiting a response to this.

I understand that it is likely that they would issue a pre-court notification of some sort, so I guess it might be worth waiting for that notice before any response now.

Is there any reason if I do respond not to be more thorough i.e. why just one liners? A lot of this letter was from one written by someone who managed to get a POPLA appeal from Parking Eye I think at the same stage having ignored some notices, although this was in December 2013 (hence why I was asking about the content).

Thanks for the replies,

Andrew

Umkomaas

There's little prospect of a positive outcome, regardless of the content/volume of your appeal. You could send off what you've already drafted, or follow hoohoo's advice (hoohoo is a well respected regular here) to show some degree of 'following due process'.

Chances of anything positive occurring - I'll eat my leg!

zzalsar4

OK, thanks for the information.

Andrew

Coupon-mad

Another vote for hoohoo's suggestion.

zzalsar4

OK, so a much smaller letter:

I write to you regarding a recent letter from Equita regarding what I can only assume is the above PCN from yourselves, Care Parking; although the PCN No. matches the above, the letter refers to Anchor Group Services Ltd, but I have received no such PCN from any such named company.

Your debt is denied for the following reasons. The signs at the site were insufficient at the time of the alleged breach of terms and conditions. The signs are out of the eye line of drivers at the entrance of the site in clear breach of the BPA code of practice, particularly in the dark when the signs are not directly lit, with the only lighting being the general security lighting of the site. Additionally, the entirety of the site along Chalon Way is open and no signs are present along this pedestrian access, and so the driver can enter the car park and leave their car without ever having seen a sign. Furthermore, the store was indicated to be closed on entrance to the site where the opening hours are clearly displayed, and yet there is no indication on the signs that the terms and conditions were the same in spite of this. The store being closed means that the penalty therefore has no commercial justification, again in breach of the BPA code of practice. There is no mention of the use of ANPR on entry to the car park, also in breach of the BPA code of practice, and thus outside of the opening hours of the store it cannot be known that the contract is to be enforced.

Should you reject all of the above reasons, I am open to the possibility of alternative dispute resolution through POPLA. Failing this, I suggest we use the pre-action protocol (url omitted as not allowed here).

Does this look OK, or is this still too much?

Thanks again,

Andrew

Fruitcake

Was ANPR actually used? Did the PCN have ANPR pictures in it?

If ANPR was used then this must be stated on the signage. It must also state the purpose for which the ANPR data will be used. Not having this information on signage where ANPR is used is a breach of the BPA CoP and the ICO.