Help with ongoing PCN

Le_Kirk

Rstar said:

Could do with some advice on what to do next here..

Have spoken to BW Legal who are saying "You never asked for the hirer documents, so it's still valid/POFA complaint"!! 
I'm guessing this is BS and they have to send them regardless.

KFC are useless, say they can't do anything, trying to find who owns the land.

Have complained to BPA and my MP but it looks like BW are wanting to take to court.

Any help please?

Notwithstanding that you phoned them!  They are wrong.  It is their duty (if they want to hold the hirer/lessee liable) to send the correct documents.  If you want to find out what they should send, just read POFA Schedule section 13.
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Rstar

Hi Folks,

So I only phoned them because I had emailed 3 times and not had any response, then had a letter saying I hadn't contacted them! I only referenced what was in the email on the phone, that is all. I have also followed up with an email referencing the call and stating it is not down to me to ask for said documentation.

I have raised a complaint with the BPA and my MP has said she will try and contact them.

Is there anything else I can do other than wait? 
Premier Park just say it's "out of their hands" when I try and contact them and BW Legal, seem to believe they have complied with POFA, so I'm a bit stuck.

I have emailed what I think is the landowner but heard nothing back.

Rstar

Hi All, 

I have had the following reply from BW Legal, who seem to think regardless of Premier forfeiting Hirer liability, they can still come after me?? 

Good Afternoon

Thank you for your recent email, the contents of which have been noted on file. 

As previously stated to you, we do not consider the matter unenforceable if it is the case that this matter is not considered compliant Protection of Freedoms Act 2012.

It must be noted that the Protection of Freedoms Act 2012 is not a prescriptive Act that bars any Parking Charge Notices issued outside of compliance. Our client is therefore able to pursue you for breach of contract under contract law.

As the Hirer you are responsible for the vehicle and all charges levied against the vehicle.

The only feasible argument one could have for not being liable for the balance on procedural grounds is if the Hirer argued that someone else was driving. This argument was tested in the Appeals court in the case of Combined Parking Solutions Ltd v AJH Films Ltd.

In the aforementioned case, the Judge held; 'that the driver (whoever it was) had the authority of the defendant to drive the vehicle and to enter into the contract with CPS [the parking company] and to pay the charge on its behalf.'

The appeal submitted by the applicant (AJH Films Ltd.) was subsequently refused when the Judge stated: ‘From the written material it is evident that the submission on behalf of the defendant is that it was an error of law to find that any person driving the vehicle has actual authority to bind a company to a contract…That is an argument that failed before the Judge… it is clear from the District Judge’s findings of fact that if the use of the vehicle was authorised, the driver must have implied, if not actual, authority, to incur the parking charges…Having considered all the material before me…the application is refused.’

As a result, our Client is satisfied that as the Hirer of the vehicle, you were either; (a) the driver or (b) aware of the identity of the driver at the time of the contravention, but failed to identify them to our Client and due to the awareness of the identity of the driver, you provided the driver authority to enter into a contract with our Client and subsequently pay the charge on their behalf.

We would also note, this appeal decision sets a binding precedent for future cases, as the case was heard in the Court of Appeal (Civil Division).

Given the above we are confident in continuing to pursue the balance.

We would ask you to make a payment proposal to clear the balance.

Any Advice??

Jenni_D

They're talking about the laws of agency ... which is credible for a business (AJH Films Ltd) situation but not for a consumer situation (Mr. A N Other). I recall reading a successful claim thread here very recently where the PPC/legal tried to argue this point but the judge gave them short shrift.

Coupon-mad

Yep, CPS v AJH films was (as you can see from the names) about a company defendant whose driver was acting on their behalf.

Fire back and say the above and tell them to cease and desist in misleading you, an unrepresented consumer.

Say that in fact the question of whether the law of agency applies to an individual parking firm victim keeper (a named hirer is a keeper) has been tested in the 'Appeals court' in the case of Excel v Smith* (transcript attached).

* (Explained here for you, not for sending to BW).  Send them a link to the court transcript that the Parking Prankster shows in his 'case law' pages:

http://parking-prankster.blogspot.com/2017/06/motorist-wins-appeal-cps-vs-ajh-films.html?m=1

BW say the decision is 'binding' in AJH Films because it was at CoA level but the substantive decision wasn't.

The CoA refused to hear an appeal from AJH because their Director didn't turn up and his application didn't meet the criteria for a second appeal, so it didn't get off the ground:

https://www.bailii.org/ew/cases/EWCA/Civ/2015/1453.html

So not a 'binding' decision, after all.

Rstar

Many thanks for this!!

I have sent an email in response using most of the above (including court transcripts) and will wait to hear back.

Rstar

So BW Legal appear to have completely ignored my email, pointing out they are wrong and issued me with a Letter of Claim via email..

I have responded saying I dispute the debt and have attached the previous email.

What do I do now?!
Still have an ongoing complaint with BPA and my MP has written to Premier Park.

Le_Kirk

As well as disputing the debt, did you demand that they put the matter on hold for a minimum of 30 days whilst you seek debt advice (assuming you have not yet received a proper N1 claim form)?

Rstar

I will send another email stating this, do I also need to send a SAR to Premier at the same time?

Le_Kirk

Rstar said:

I will send another email stating this, do I also need to send a SAR to Premier at the same time?

The two are not connected but one should always submit a SAR (unless you have previously done so) to the parking company (PPC).  The SAR goes to the DPO of the PPC.  E-mail address will be on the privacy page - or should be!