Lease car with a parking fine (Scotland)

mariahey

Hi everyone. I am extremely appreciative of everyone's help. This is my first car and my first lease car so I really have no experience when it comes to these things. I just want to say again thank you. This is the email I have drafted, much taken from @Fruitcake as it was excellent advice. I just wanted to highlight that I read the contract and the only mention of fines is this

"You must pay all fixed penalty charges, fines, congestion charges or any other penalties or charges in connection with the Vehicle or its use, including any fine in connection with the failure to register the Vehicle on the Motor Insurance Database. If we pay or transfer liability to you for any of these sums on your behalf you will repay us upon demand any sums so paid and an administration fee." 

Furthermore, I checked and they are a part of the BVRLA.

I have not heard anything from Smart Parking Ltd. 

And also, silly question but who is the NTH? tried googling and cannot find anything. 

This is what I have drafted in the email and I will send it soon, just want to hear from anyone on here to see if I should remove/add anything else. 

I am writing with regards to the email I received on 02/05/2022 with a Parking Charge Notice issued from Smart Parking Ltd. I would like to make you aware that the legislation you referenced in the email: The Protections Freedom Act 2012 (PoFA 2012) was never enacted in Scotland and does not exist in Scottish law. Consequently, the keeper of a vehicle registered to a person or company at an address in Scotland cannot be held liable for a parking charge notice from an unregulated private parking company such as Smart Parking Limited because there is no Scottish law that allows it.

In other words, (I inserted the Lease company name)  cannot be held liable for a parking charge notice from an unregulated private parking company such as Smart Parking Limited. Whilst they had the option under Scottish law of ignoring the charge, they have chosen instead to name you as the hirer/lessee. (Personally, I don't think that is unreasonable).

Smart Parking Limited are not an authority, and cannot issue fines or penalties to a motorist anywhere in the UK. They are one of a number of unregulated private parking companies referred to as rogues, scammers, and bloodsuckers by MPs across all parties, including SMPs, in open parliamentary debate. They do not offer an independent appeals service.

As hirer/lesse, you are the day to day keeper. Since the PoFA 2012 does not exist in Scottish law, as day to day keeper, you cannot be held liable for a parking charge from an unregulated private parking company. In addition, again since the PoFA 2012 does not exist in Scottish law, as hirer/lessee, you cannot be held responsible for the charge.

Any attempt by (lease company) to pay this charge and transfer payment to you will be considered unlawful. (lease company) are therefore instructed not to pay this or any other parking charge notice from this or any other unregulated private parking company. 

I am also aware that (lease company) is part of the BVRLA where you tell its members not to pay these kinds of charges. but instead to forward them to the hirer/lessee. As you are a member, if you were to pay the charge, you would be in breach of the trade association requirements. 

Furthermore, according to the contract, there has been no mention of parking charge notices from private parking companies. With this, If (lease company name) pays the charge, this would be breaching the contract, making it voidable and I will be taking legal action.

I look forward to hearing from you soon on this matter. 

Umkomaas

The Protection of Freedoms Act 2012 has much wider applicability than private parking. It's a massive piece of legislation covering all kinds of stuff like DNA testing, fingerprinting, biometric information of children in school, regulation of CCTV, powers of entry into property, vehicle clamping, counter-terrorism, safeguarding vulnerable groups, people trafficking, sexual exploitation, stalking ...... to name some of the areas it covers. 

The section regarding recovery of private parking charges is a very small part of the Act - almost as if they couldn't find any other piece of convenient legislation at the time to tack on to!  Schedule 4 of the Act was created for the purpose. 

Schedule 4 does not apply to Scotland (at the moment, but will change in late 2023). So when you quote PoFA in your communication with the lease company always qualify it with 'Schedule 4'.

NtH = Notice to Hirer - what you should receive if the lease company has done the proper job in naming you to Smart Parking ...... and Smart decide to continue to pursue you - they might find it too much of a faff. Come back if you receive a NtH. 

Jenni_D

Hopefully you haven't sent it yet, as this below needs work:

In other words, (I inserted the Lease company name)  cannot be held liable for a parking charge notice from an unregulated private parking company such as Smart Parking Limited. Whilst they you had the option under Scottish law of ignoring the charge, they you say you have chosen instead to name you myself as the hirer/lessee. (Personally, I don't think that is unreasonable).

mariahey

Jenni_D said:

Hopefully you haven't sent it yet, as this below needs work:

In other words, (I inserted the Lease company name)  cannot be held liable for a parking charge notice from an unregulated private parking company such as Smart Parking Limited. Whilst they you had the option under Scottish law of ignoring the charge, they you say you have chosen instead to name you myself as the hirer/lessee. (Personally, I don't think that is unreasonable).

No I haven’t sent it yet. Thank you so much

Fruitcake

Agreed. The comments struck-through by Jenni was me providing you with my opinion. It was not meant for you to send to to the hire/lease company. Even if you agree with my comment, I don't think it is a good idea for you to include it.

Copying what I have said word for word is not a good idea because you will then include my mistakes, (lessee, not lesse), plus comments I am making to you, not the comments you should be making to the hire/lease company.

Coupon-mad

I would get a new lease firm because this gives you NO RIGHT TO APPEAL ANY CHARGE and is unspecific about how much extra 'admin fee' they can add for pointlessly paying a PCN that was never their liability:

"You must pay all fixed penalty charges, fines, congestion charges or any other penalties or charges in connection with the Vehicle or its use, including any fine in connection with the failure to register the Vehicle on the Motor Insurance Database. If we pay or transfer liability to you for any of these sums on your behalf you will repay us upon demand any sums so paid and an administration fee." 

Jenni_D

I imagine there's another clause/section which defines the admin charges ... if not then the quoted clause would be an unfair term and could be challenged so as to remove that clause from the contract.  

mariahey

Coupon-mad said:

I would get a new lease firm because this gives you NO RIGHT TO APPEAL ANY CHARGE and is unspecific about how much extra 'admin fee' they can add for pointlessly paying a PCN that was never their liability:

"You must pay all fixed penalty charges, fines, congestion charges or any other penalties or charges in connection with the Vehicle or its use, including any fine in connection with the failure to register the Vehicle on the Motor Insurance Database. If we pay or transfer liability to you for any of these sums on your behalf you will repay us upon demand any sums so paid and an administration fee." 

I know I wish I could leave, but I will be faced with paying so many fees for early termination. One more year left!

Jenni_D

Which lease co.? (My current [and previous] company [lease] car is with ALD - my next one will be with Ogilvie).

mariahey

Jenni_D said:

Which lease co.? (My current [and previous] company [lease] car is with ALD - my next one will be with Ogilvie).

LeasePlan, found it through Leaseloco