Parking Eye Hospital PCN via Leasing company

dadsma

dadsma wrote: »

We made our 'newbies' appeal as the Hirer to PE and await a reply.

We formally disputed all the admin and payment recharge invoices received from Lex and instructed them they have no authority to process the direct debits. They put them into dispute seem to have complied but we are monitoring the bank account in case.

We have now received this reply from Lex:

"Dear Hirer,

The parking eye Notice addressed to Lex was sent to you at your home address with a covering letter as we cannot provide your personal details to them due to data protection.

The letter advises that the charge needs to be paid or appealed within 28 days because if Lex Autolease receive a further notice and no action has been taken we then have to pay the charge at the increased amount and recharge this to you.

This is because as the registered keeper of the vehicle under the Protection of Freedoms Act Legislation (2012) Lex Autolease can be taken to court if these charges are not paid or settled.

The invoices you have received are for administration charges for us processing the motoring offence, and these are applicable for any motoring offences we receive for the vehicle.

We are only able to credit these admin fees if the notice is cancelled. If it is appealed and cancelled please let us know and we can credit the admin fees charged.

Fleet Administrator – Fines and Penalties"


This is what our contract with Lex says:

HIRE AGREEMENT REGULATED BY THE CONSUMER CREDIT ACT 1974

YOUR OTHER OBLIGATIONS

(f) You must pay all fees, fines (including all speeding, parking and any traffic congestion charge fines) and other sums and meet all liabilities arising from your possession or use of the Goods. We may charge you £25 for each demand that is referred or sent to us. If you do not pay or do anything required of you, we may do it and charge you. If we do this, we may charge you a further £25 for each charge that we pay.



And....
This is taken from the Lex Autolease website:-

Private Parking

On receiving a Private Parking notice we will follow the customer’s policy and either pay or nominate. If the customer’s policy is to pay the fine we will send a cheque to the issuing Private Parking Company and recharge the full amount to the customer. Depending on the policy, this could incur an administration fee.

If the policy is to nominate company address details, we will provide these details to the Private Company. Once the address has been received the Private Parking Company will transfer the liability into the customer’s name and issue them with a fresh notice. It then becomes the responsibility of the customer to either pay, appeal or nominate further. Depending on the policy, this could incur an administration fee.

If the policy is set to nominate driver address details, due to the Data Protection Act we are unable to provide these details to a Private Parking company.

In these instances we will pass the notice directly to the customer’s address with a covering letter advising the customer to take action by either paying or appealing. Depending on the policy, this could incur an administration fee.

If, after 28 days, the customer has failed to make payment or appeal, the liability will be transferred back into Lex Autolease’s name - as the owners of the vehicle. Lex Autolease will then make contact with the customer giving them five working days to respond; if no response is made Lex Autolease will pay the now higher fine amount and fully recharge this to the customer.

All appeals can be made directly to the Private Parking Company should you wish to do so.

Please could we have advice on responding to Lex's reply after we disputed their invoices. In particular is what they say contrary to what the contract allows them to do?

Coupon-mad

dadsma wrote: »

Please could we have advice on responding to Lex's reply after we disputed their invoices. In particular is what they say contrary to what the contract allows them to do?

Yes - and they didn't do what the contract says!

''On receiving a Private Parking notice we will follow the customer’s policy and either pay or nominate.''

They didn't pay and they didn't nominate.

Ask them in the response, why they stepped outside the contractual promises? And tell them that he has appealed now. And ask for a breakdown to explain the Lex charge because the hirer is minded to complain to the BVLA about them charging for NOT doing what their contract says their two choices are.

The hirer has sent me a copy of the Lex Autolease agreement. He is worried that if he simply waits and doesn't reveal his details to Parking Eye the lease company will pay the charge and recoup it from him.

Finish by saying that Lex are NOT authorised to pay, only to 'nominate' if they ever get any letter(s) about this vehicle during his period of hire.

dadsma

Coupon-mad wrote: »

........they didn't do what the contract says!
They didn't pay and they didn't nominate

Thank you c-m but the stuff about paying or nominating is simply additional information on their website. The only relevant clause in the signed contract is this:

"YOUR OTHER OBLIGATIONS

(f) You must pay all fees, fines (including all speeding, parking and any traffic congestion charge fines) and other sums and meet all liabilities arising from your possession or use of the Goods. We may charge you £25 for each demand that is referred or sent to us. If you do not pay or do anything required of you, we may do it and charge you. If we do this, we may charge you a further £25 for each charge that we pay."

We are therefore unsure how to respond to their letter as they clearly lump statutory and private together. Is their failure to follow the DVLRA process the key? or POFA 2012? or their statement that they cannot pass on information to a parking company because of Data Protection?

Coupon-mad

Is their failure to follow the DVLRA process the key? or POFA 2012? or their statement that they cannot pass on information to a parking company because of Data Protection?

All of the above - BVRLA not DVRLA though.

dadsma

Coupon-mad wrote: »

The hirer could bung in a quick appeal choosing 'hirer/lessee' in the ParkingEye website 'contact' form, saying that they have been passed the PCN as hirer (then add the rest of the template appal in the NEWBIES thread). I've done it this way before - always works.

That causes PE to then send a new PCN (NTH this time), without explanation, to the named hirer. The hirer/lessee then repeats the action above, appeal AGAIN as lessee/hirer but this time to the Notice to Hirer.

Finally they get a POPLA code, then they win at POPLA.

As suggested the hirer sent the appeal as hirer, with their own name and address clearly stated in the appeal.

A rejection and POPLA code has now been emailed to them but with no name or address shown on the standard .pdf rejection letter.

They haven't received a Notice to Hirer. Should they inform PE?

Coupon-mad

You could tell them but only once 21 days has passed from the date when they received the information of who the hirer was. BUT I wouldn't tip them off. The hirer has a POPLA code so the hirer can now win. I think Edna Basher produced a POPLA appeal point specific to hire car cases where the PPC has not complied with para 13/14 of schedule 4.

Then you need the other template points from the NEWBIES thread post #3 where 3 or 4 template appeal points are linked that you can also use, to make a VERY long, winning POPLA appeal.

dadsma

Thank you. It is way beyond, but why 21 days?

Coupon-mad

Because when a PPC is furnished with the details of the hirer, they have 21 days to issue a Notice to Hirer under para 13/14 of Schedule 4. So if a person rushed to tip a PPC off too soon, hey presto, a NTH might arrive!

Anyway, go for POPLA to kill this off.

Edna_Basher

The fact that there is no Notice to Hirer (because Lex chose not to provide ParkingEye with the hirer’s details) means that you’ll need to tweak the “standard” POPLA wording for hirers.

Also, in order to avoid Lex being dragged back into the picture, I suggest that the POFA non-compliance appeal point includes an explanation as to why in this case, the registered keeper (i.e. Lex) is not the “keeper” (as defined by POFA).

Here’s some suggested wording for an introduction to the POPLA appeal, together with Appeal Point 1 (Non-Compliance with POFA).

Dear Sir.

POPLA Ref. 606xxxxxxx
PCN Ref. xxxxxx/xxxxxx – Vehicle Reg. [AA11AAA]

I write to lodge my formal submission for Alternative Dispute Resolution of my dispute with ParkingEye Ltd (“ParkingEye”) in respect of the above-detailed Parking Charge Notice (“PCN”) in respect of an alleged breach of parking terms and conditions at [Location of Incident] on [Date of Incident].

Although the registered keeper of the above-detailed vehicle is Lex Autolease Ltd (“Lex”), at the material time of the alleged breach, this vehicle was on hire 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) ParkingEye failed to meet the strict requirements of Schedule 4 of POFA
2) [Other appeal points to be inserted]

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

Failure to deliver a compliant Notice to Hirer

In order to rely upon POFA to be able to hold me liable in my capacity as the vehicle’s hirer, ParkingEye had to deliver a Notice to Hirer that fully met all of POFA’s strict requirements.

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(2)(a) of Schedule 4 of POFA 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)).

Paragraph 14(5) specifies that the Notice to Hirer must:

(a) 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;
(b) refer the hirer to the information contained in the notice to keeper;
(c) 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;
(d) inform the hirer of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(e) identify the creditor and specify how and to whom payment may be made; and
(f) specify the date on which the notice is sent (if it is sent by post) or given (in any other case).

Despite being provided with my details as the vehicle’s hirer, ParkingEye failed to deliver a Notice to Hirer (compliant or otherwise) to me within the relevant period specified within Schedule 4 of POFA.

Given its failure to comply with the requirements of Paragraphs 13 and 14 of Schedule 4 of POFA as detailed above, ParkingEye’s claim against me (in my capacity as the vehicle’s hirer) must be determined as being invalid.

Failure to deliver a compliant Notice to Keeper

Schedule 4 of POFA defines “keeper” as meaning the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper. In this case the contrary has been proved; in addition to being the vehicle’s hirer, I am also its keeper.

Given that it has been proven that Lex was not the vehicle’s keeper (as defined under Schedule 4 of POFA), there are no circumstances where Lex may be liable for this Parking Charge.

Furthermore, given that ParkingEye did not deliver a Notice to Keeper to me within the relevant period specified under Schedule 4 of POFA, ParkingEye has no valid claim against me (in my capacity as the vehicle’s keeper).

2. [Other appeal points to be inserted]

dadsma

Should I send POPLA a copy of the text of our appeal to PE which included notification that I am the hirer/keeper, or is it sufficient for now just to put in the detailed appeal points?