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

Marktheshark

The liabilities for parking charges are set by legislation.
That states VERY CLEARLY that the registered keeper is liable unless they discharge liability by naming the driver .

They can not over rule legislation with terms and conditions, this makes any contract void.

Hit them back with that.

Castle

I'm pretty certain that the Financial Ombudsman doesn't cover vehicle hire contracts.

DJBenson

I think this section of the 'Guidance on Section 56 and Schedule 4
of the Protection of Freedoms Act 2012:
Recovery of Unpaid Parking Charges' makes this an open and shut case doesn't it?

The Protection of Freedoms Act 2012 makes a number of changes to the
law related to parking. It bans private sector wheel-clamping and vehicle removal where there is no lawful authority to do so, and, as a balance to that, provides landholders with extra powers to manage parking on their land once the ban comes into force. It does this by allowing landholders, in certain circumstances, to hold the registered keeper of a vehicle liable for unpaid parking charges if the registered keeper refuses or is unable to name the driver at the time the parking charge was incurred.

Fruitcake

DJBenson wrote: »

Ah I think I have my answer in the form of this case study;



So there was a 28 day deadline within which the parking company had to identify me as the driver during which time my lease company has stuck its beak in settled my invoice for me.

Received a response from the PPC this morning telling me that they'd considered my appeal but rejected it based upon the fact that I was still in breach of the terms and conditions on site despite having paid for parking (but entering the wrong registration details).

To be honest, it was a half-baked attempt at an appeal because I'm saving my fight for the lease company who I think I have a stronger case against just for essentially interfering in something that had nothing to do with them.

No, they have to identify the hirer, not the driver.

Fruitcake

DJBenson wrote: »

Arval have responded (by email) to my letter which I sent to them last week;

Dear <Removed>,

Thank you for your letter which we have received.

The points in my prior correspondence are from our legal team, which is agreed parking charges have been applied correctly.

Whilst it doesn’t specifically state we pay all charges, it is implied that we will pay and recover the money given the wording of the clause. Implied terms can be found very commonly in contracts for example, when a person purchases a cinema ticket they form a contract with the cinema to view a film. It may not say expressly anywhere on the ticket (or other contractual terms referenced) that they must get up and leave their seat and leave the cinema at the end of the film but the term is implied. Likewise if we have a clause saying that when liabilities are incurred relating to our vehicles the customer is responsible and we will charge an administration fee it is implied that we will discharge the liability and invoice the customer for our administration costs.

If you are not happy with this response, you do reserve the right to refer your complaint to the Financial Ombudsman Service. The Financial Ombudsman Service is an independent and free service. You can find useful information on their website http://www.financial-ombudsman.org.uk.

So they've gone from saying 'your agreement states...' to 'your agreement implies...'.

I take from what they've said that this is their final response and my only recourse is now FOS?

I can't remember exactly where, but in something like the unfair terms and contracts act or consumer rights act, there is wording along the lines that where there is ambiguity then the interpretation that favours the consumer is the one that prevails.

So, throwing the implied contract terms back at them, you state that your interpretation is that unregulated private parking charges are not included in the Ts and Cs, because they are not specifically mentioned, especially when their trade association the BVRLA confirms your interpretation.
Therefore these unauthorised charges are breach of written and implied contract.

DJBenson

I think emotion has crept into play a bit in my last response (lots going on personally and not a lot of energy left to fight these muppets) but here's my 'final response';

Dear <Removed>

I have every intention of taking my case to the Financial Ombudsman as ARVAL have in this case (and according to many popular consumer websites including Money Saving Expert in several cases) took it upon themselves to interfere in a matter between the private parking company and the driver. ARVAL as the registered keeper are not (and were never) liable for the charges had you discharged any liability from yourselves by naming me as the driver of the vehicle rather than taking it upon yourselves to decide that the invoice was indeed correct.

To be clear, I am not even challenging the PCN with the PPC as that ship has frankly sailed when ARVAL paid the invoice on my behalf, I am however taking great objection to your interference and flagrant disregard for the parking regulations (and indeed the law) by paying the charge on my behalf, making appeal difficult (if not impossible as the PPC now has your money and are unlikely to want to give it back) and then applying a charge for doing so, and now the added insult that your right to do so is not actually an explicit term but an implied one within my agreement.

Please find below the basis for my refusal to pay the charge applied to my account and any associated admin fees;

1) The rules around handling parking charge notices are clearly defined within legislation, the registered keeper of the vehicle is liable to all charges unless they discharge liability by naming the driver. This is clearly documented in the '2012 Protection of Freedoms Act'. I refer you to section 3.1 of the 'Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges' on the gov.uk site which specifically states;

"The Protection of Freedoms Act 2012 makes a number of changes to the law related to parking. It bans private sector wheel-clamping and vehicle removal where there is no lawful authority to do so, and, as a balance to that, provides landholders with extra powers to manage parking on their land once the ban comes into force. It does this by allowing landholders, in certain circumstances, to hold the registered keeper of a vehicle liable for unpaid parking charges if the registered keeper refuses or is unable to name the driver at the time the parking charge was incurred."

2) By paying the charge ARVAL (as per the above legislation) have accepted liability for the charge and as such there is no further discussion on the matter - regardless of what your agreement does (or does not in this case) say, your terms and conditions do not overrule legislation

3) I would argue that such a material term as the one you are relying on to justify the unathorised charges being applied to my account should in fact be implicit and as such, should any further weight be needed for my case, I would argue unfair contract terms - you are relying on very specific terms with specific penalties which the consumer could not reasonably know at the point of signing the agreement and under the Consumer Rights Act 2015 would be viewed as being unfair terms. The act specifically mentions 'fees and charges hidden in the small print' but indeed your fees and charges are nowhere to be seen in the agreement I signed because as has been made evident in your latest response, these were implied terms which I think any rational person reviewing the case would agree would not be enforceable.

In addition to challenging your unauthorised support of the badly regulated private parking sector, I am also raising awareness via several media outlets as to ARVAL's part in this by publishing all communication between ARVAL and myself (personal details have been removed) to highlight just how badly ARVAL is handling this situation and to make consumers think twice about using ARVAL as a lease provider in the future, I know for certain that at the end of my lease I will be doing no further business with ARVAL as I want nothing to do with a company that holds customers to ransom with such practices whilst flagrantly disregarding the law.

If you could please confirm that you have (or will) provide your final response and I will gladly escalate my case to the Financial Ombudsman and further if required. I trust you are aware that the cost of my taking my case to the FOS will far exceed the amount you have so far incurred (assuming more than 25 people have referred their cases to the FOS this year).

One final point, should the case be escalated to FOS and won, I will be invoicing ARVAL for the time I have had to spend handling this complaint. I'm not an unreasonable person but I feel that my time is being unduly wasted here when this is, to the letter of the law, an open and shut case.

Regards,

<Removed>

EDIT: I know from the comment above that there is a distinction between 'hirer' and 'driver' but it was too late as I'd already sent this.

Coupon-mad

IMHO, you should have steered this away from the POFA 2012 completely, because Civil Enforcement do not use the POFA.

Arval were never liable at all so it would have been best to show that. I would not have quoted that section in bold - nor anything from the POFA - because this PCN doesn't fall within those certain circumstances. If this goes to the Ombudsman - surely the BVRLA dispute resolution covers this, not the FOS? - they will not 'get' this unless you show clearly that this PCN from this firm, was ONLY the business of a driver.

Arval had no business paying it, any more than they could pay your paper bill if the local newsagent took it upon themselves to write to Arval about your 'debt'! This is not about the POFA and Arval assuming full 'liability'.

Arval should have named you as hirer, end of story for them. Over to you. That's what they should have done.

DJBenson

That's fair enough CM - as I said above, I've not got masses of time to spend on researching the ins and outs of this situation, I'm very grateful for the advice I've received on here and am using it to the best of my ability to fight the case.

I've just prepared a BVRLA dispute form and have based it around your points above (I will of course include all emails, letters etc. with the case) but I'm taking the 'ARVAL should simply have named me as the driver' stance and not relying on POFA.

Hopefully their trade body will see some sense, I just can't see how they can continue pushing this one;

Point 1: it was never ARVAL's charge to pay
|--- STOP HERE AS EVERYTHING BELOW IS IRRELEVANT ---|
Point 2: ARVAL paying the charge was not a term in my agreement
Point 3: ARVAL stating that the term was implied is not a valid argument as that is a clear breach of the Consumer Rights Act 2015

nigelbb

It was ARVAL's charge to pay as they are the RK (IF the NTK was compliant) but they could have passed on that liability to the OP if they had responded appropriately to the PPC with necessary documents.

DJBenson

It seems that ARVAL are not taking me seriously as I've just received their invoice for the PPC invoice (60.00) and their admin fee (15.00) which they say they'll be taking by Direct Debit on the 15th of September...