Hire company paid private PCN against their own terms and conditions (ARVAL again!)

DJBenson

At the risk of ranting, how's this for a response;

Dear Mr Plunkett

I thank you for your response dated the 16th of September 2016 and acknowledge the outcome of your investigation, I do however have a number of points to raise with you regarding your responses which clearly show that the issue of paying private parking charges on behalf of customers is deemed to be an acceptable part of normal business for ARVAL UK and show a distinct lack of understanding (or disregard) for the correct procedures which should be followed in such circumstances.

Firstly, your statement that 'in the overwhelming majority of cases, drivers have no valid grounds to appeal the charge' - this is a massive sweeping generalisation which I presume is based on your own findings of customers of ARVAL UK not challenging ARVAL in their process of paying such these private parking invoices in the same way I have.

I expect the vast majority of your customers are fleet customers to whom paying the charge is deemed an acceptable trade-off to going through the hassle of proving that the ticket may well have been issued incorrectly. Do not take customer apathy as a basis to make such statements. According to POPLA (the Parking on Private Land Appeals service) 44% of appeals made to Civil Enforcement LTD in 2014/15 resulted in the invoice being overturned - that completely dispels the myth you are purporting with your 'overwhelming majority' statement.

Secondly, I take great exception to the use of the words 'fines and penalties' as the invoice issued by Civil Enforcement LTD was neither; it was a speculative invoice raised by a private company and cannot under any circumstances be referred to as a 'fine' or a 'penalty' - the law is very clear on that point. Only councils and law enforcement agents (i.e. the police or other agencies working on behalf of the police) can lawfully issue 'fines' or 'penalties'.

Thirdly, where the Protection of Freedoms Act 2012 ('POFA2012') is relied upon, there is so-called 'keeper liability' whereby ARVAL UK would have been liable but could/should have discharged liability by naming me as the lessee. However, where no keeper liability exists (i.e. where POFA2012 is not relied upon, as is the case with the invoice from Civil Enforcement LTD in this matter) there is only 'driver liability' and as such there was never any liability (legal or otherwise) towards ARVAL UK in this matter and you had no need to settle the invoice 'on my behalf'.

I am not in a position to comment on whether or not it is lawfully (or morally) right to charge an administration fee for doing what the law requires you to do but I am seeking clarification on this point.

Fourthly, I would like to reiterate (as I have done many times through the course of this process) that the invoice from Civil Enforcement LTD was a private parking invoice and not a fine or penalty and was issued under no authority at all - so when you mention 'issuing authority' your point is null and void as Civil Enforcement LTD are not an 'issuing authority' they are an unregulated private parking company. Only councils and the police (or their agents) can be classed as issuing authorities (as discussed above in my second point).

Lastly, your final paragraph on the matter is incorrect. When an invoice with a private parking company is settled, the company has no requirement to follow the appeals process (and again you use 'issuing authority' incorrectly). Very few private parking companies will entertain an appeal post-payment. Quite simply, once they have their money, they consider the matter closed, so I stand by my assertion that by interfering in this private matter you ensured that no right to appeal would be granted. This is confirmed by receipt of the letter from Civil Enforcement LTD whereby they state, and I quote “As payment has been received, liability for the Parking Enforcement Notice has been accepted therefore we are unable to provide a POPLA code”. A copy of the letter is attached to this email for your reference.

In my closing statement I would like to make it absolutely clear that ARVAL UK are, under no circumstances, to settle invoices with private parking companies 'on my behalf'. I have pointed out several times that my terms and conditions ('the agreement') signed at the point of contracting do not allow you to do this, and reliance on implied contract law would see any challenge to your terms come down on the side of the consumer, so I would not rely on implied contract terms to win this particular argument.

From the responses I have seen from ARVAL UK, it is clear that ARVAL as a company are not aware that a significant number of private parking invoices are not written with any attempt to hold the keeper liable at all. You appear to have assumed that the POFA2012 placed liability upon you as a lease company for the invoices issued by a private parking company such as Civil Enforcement LTD, which is simply not the case. Take for example the following private parking companies;

APCOA, Civil Enforcement, CP Plus, Excel Parking Services, Highview, MET, Premier Park, Smart Parking, Spring Parking, TPS, VCS, Wing Parking and so on.

None of these private parking companies rely on the Protection of Freedoms Act 2012 and as such none of them could have held ARVAL UK liable for the charges they levied. I would like to ask therefor on what basis does ARVAL UK deem themselves to have acted appropriately in interfering, transferring and worse still, paying an invoice from such a company and thus denying my rights as the lessee at the time to any right to appeal with the company? It was quite simply none of your business and of no liability to ARVAL UK whatsoever.

I would suggest that ARVAL UK urgently seek advice from your trade body the BVRLA and/or your own legal department (although what little information has been passed to me from your legal department suggests they are not equipped to deal with these cases at the moment) as I feel your understanding of the applicable laws and your belief that as a consumer I still had the right to appeal after ARVAL UK arbitrarily paid the private parking company's charge is incorrect and will lead to damage to the ARVAL brand reputation and ultimately loss of customers.

Once I again I thank you for your response and I look forward to the BVRLA's outcome - I will however be picking up the points I have raised above in relation to your response directly with the BVRLA as I believe some of your responses may be a cause for concern to your trade body and I will be asking them to review the response and their stance on the situation as a whole once they reach their own outcome.

Yours sincerely,

<REMOVED>

Encl. Response from Civil Enforcement LTD re: declination of appeal.

Fruitcake

This is civil not criminal law, so lawful/unlawful should be used instead of legal/illegal.

There are a number of grammatical and typographical errors that need sorting out as well.

I also suggest you let the experts here comment on it before you send it.

DJBenson

Typed in haste (and in Notepad). Removed typos where I spotted them and replaced legal for lawful where I thought it appropriate.

Post above is updated to reflect the amendments.

The response finished abruptly as I wasn't clear what angle I could take them to task so far as the BVRLA were concerned so pointers on that welcome.

Coupon-mad

It is 'Civil Enforcement' not 'Civil Enforcements' so change it throughout if you haven't already.

There is a 'not' in there that needs removing near the end.

I would also remove this:

Furthermore, the legislation on private parking is very clear, that the registered keeper (i.e. ARVAL UK) are responsible for paying the charges unless you discharge liability to the lessee.

...because that is NOT the case with a Civil Enforcement charge and you kind of unpick your own argument earlier on, by saying on the one hand Arval were never liable for it (true) but on the other, they are responsible (they were not). I would avoid saying what they are 'required' to do under legislation which never applied here.

I think I would ask the question (something like this):


Are Arval and the BVRLA unaware that a significant number of private parking charges are issued with no attempt at all at compliance with the POFA 2012 Schedule 4? You seem to have wrongly assumed that the POFA 2012 created an onerous liability for lease firms receiving any private parking charge and seem unaware that many operators do not comply with that Act, deliberately choosing not to use the applicable wording to hold a keeper liable.

Arval are making an untrue and dangerous assumption by believing these charges are your liability to transfer in the first place. For example, where the Notice comes from the likes of:

APCOA
Civil Enforcement
CP Plus
Excel Parking Services
Highview
NCP
Premier Park,
Smart Parking,
Spring Parking
TPS
VCS
Wing Parking

...to name just a dozen of those who do NOT use the POFA 2012 and cannot hold you liable (and their Notices do not attempt to) on what basis does Arval consider that you have any business interfering and (worse) actually paying and denying the driver their appeal over a charge that was never your business or liability at all?

I suggest that Arval need to seek urgent advice from the BVRLA and/or your own Legal Department because your understanding of the applicable law/facts regarding 'keeper liability' and about a consumer 'still being able to appeal' after you have arbitrarily paid their charge is incorrect and will cause consumers loss. Since the vast majority of private parking charges issued by this 'industry' (which has been said by the AA, the RAC and the Consumers Association to operate at the very edge of the law) are deemed so unfair that the Government is looking to regulate the sector again - a fact regarding which the BVRLA will be aware - your wrong assumption that in most cases 'there is no valid appeal' is shameful misinformation.

DJBenson

Thanks CM. I've taken your advice and added some additional content as suggested above. The post above now reflects the current version.

I'll leave the response in situ and send in a couple of days if there's no further advice.

Umkomaas

CAVEAT I typed this a couple of hours ago, but omitted to post it when visitors arrived. I've not checked in detail what others have said subsequently, but for what it's worth, take from it what you want.

HTH

Where the Protection of Freedoms Act 2012 ('POFA2012') is relied upon, there is so-called 'keeper liability' whereby ARVAL UK would have been liable but should have discharged liability by naming me as the lessee. However, where no keeper liability exists (i.e. where POFA2012 is not relied upon, as is the case with the invoice from Civil Enforcements LTD in this matter) there is only 'driver liability' and as such there was never any liability (legal or otherwise) towards ARVAL UK in this matter and you had no need to settle the invoice 'on my behalf'. Further more, there is absolutely no need to release ANY contractual information other than a name and address of the lessee for the private parking company to redirect their invoice to. In the case of no lease company involvement, the private parking company (being members of an accredited trade body) could request the name and address of the registered keeper from the DVLA and the DVLA would release that information to the private parking company - there is absolutely no difference in this scenario to the one where you should have released my name and address to the private parking company (and for which you are happy to do for a charge - are you saying the data protection act only applies when I refuse to pay for your optional service?)

I don't think you're quite correct. Please have a read of PoFA Schedule 4, paras 13 and 14 about the documents a hire company must pass to the PPC to remove them from potential liability.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Lastly, your final paragraph on the matter is incorrect. When an invoice with a private parking company is settled, the company has no requirement to follow the appeals process (and again you use 'issuing authority' incorrectly). Very few private parking companies will entertain an appeal post-payment, only ParkingEye is known to allow such appeals but they are under no obligation to do so. Quite simply, once they have their money, they consider the matter closed, so I stand by my assertion that by interfering in this private matter you ensured that no right to appeal would be granted.

I'd leave out the reference to PE considering post-payment appeals as that's not a standard position of theirs, rather the converse in most cases. You making that statement may suggest to Arval that they pay PE invoices, which does no favours to other hirers - and I would guess that the majority of PPC PCNs to Arval come from PE.

Otherwise a good letter. Others may want to input, so give it a couple of days to reflect and allow other contributions.

Glad it's all over for you (other than continuing to pull Arval's tail!).

nigelbb

fisherjim wrote: »

They actually still don't get any of it do they?
Why on earth would they need to pass on your contract details to a third party?

Because if they don't pass on details then as the registered keeper they may be liable for unpaid parking charges incurred by the driver if POFA is complied with. It's therefore in their interests to pass on details so that they are not liable which makes charging an admin fee particularly cheeky.

DJBenson

Received a letter this morning from ARVAL containing a copy of a response from Civil Enforcement LTD responding to my request for a POPLA code. The letter states;

We refer to your recent correspondence.

As payment has been received, liability for the Parking Enforcement Notice has been accepted therefore we are unable to provide a POPLA Code.

Yours faithfully,

Civil Enforcement LTD

Ties in nicely with my response back to them - contained in the post above.

Coupon-mad

Arval seem clueless, proving their own misunderstanding about appeals and they've paid a PCN they were never liable for - doh!

DJBenson

Thank you to everybody for their support through this process, it's been an education to say the least. I thoroughly look forward to the next chapter in this saga