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UKPC PCN - Hire vehicle

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Hi All,

The vehicle I mention is one from Enterpise - I believe they charge £35 flat fee to redirect driver details firstly. Does me putting in my appeals stop UKPC from getting DVLA details and sending them letters?

I received a PCN on window from UKPC, having parked in a disabled bay with no badge. I do, however, have a valid blue badge which I had sent over to UKPC alongside the blue template. They then refused my appeal, 'discounted' the rate to £20 and provided me with a POPLA code (8/03/2023) - appeals to POPLA within 28 days of this letter.
I am in midst of trying to get it cancelled by putting in a complaint with the retailer, although this is seeming to be quite the task! Can UKPC cancel on behalf of the store if I have submitted my POPLA appeal? I have only today gotten contact details of the store manager, and if they don't reply in 28 days, I will obviously have to submit an appeal.

I have meanwhile had a look at the NEWBIEs sticky and plan to copy paste that if complaint does not work - do I add anything in terms of me having a valid badge? Or the fact that UKPC seem to discount my invoice? I thought I could insert it where the draft states that I do not need to disclose who the driver is, but that they had used a blue badge when parking. (Pictures provided from UKPC do not show all angles inside the windows of the vehicle.)

 I do not wish to send a POPLA appeal before exhausting the complaint method with the store manager, but have left a draft here just incase I need to use it.
I've also seen some rejected outcomes re POPLA and UKPC in the same disabled bay incident - hence I wanted to make sure my appeal is bang on.

POPLA Appeal Letter

Dear POPLA Adjudicator,

I am the registered keeper of vehicle xxxxxx and am appealing a parking charge from UKPC on the following points:

1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself



1. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.


2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made because the fact remains I am only the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA 2012 was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d who has the responsibility for putting up and maintaining signs

e the definition of the services provided by each party to the agreement


4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

WEB LINK as per template

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

WEB LINK as per template

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

WEB LINK as per template

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

WEB LINK as per template

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

WEB LINK as per

 template
''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

«134567

Comments

  • jh47777
    jh47777 Posts: 35 Forumite
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    So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

    Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

    (1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
    (2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

    The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

    This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

    WEB LINK as per template

    This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

    So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

    (The appeal has been copied and pasted. Please advise what I need to change)
  • jh47777
    jh47777 Posts: 35 Forumite
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    for reference - this is the outcome rejection that has me worried from another thread

    Reasons for the Assessor’s Determination
    At 12.07 on 26 October 2012, the Operator issued a parking charge noticebecause the vehicle with registration mark XX NN XXX was parked in a disabledbay but the Operator's employee could not see a valid disabled badge ondisplay. The employee then took a number of photographs of the vehicle. TheAppellant does not appear to dispute this.
    The Operator's case is that the terms and conditions for parking are displayedon the site, and state that vehicles displaying a valid disabled badge may parkin a disabled bay. Copies of the conditions have been produced. They also statethat a failure to comply with the restrictions mean that the car park useragrees to a parking charge notice being issued. Photographs have also beenenclosed showing that the terms and conditions are visible in various areas ofthe car park. These are dated 26 November 2012, a month after the parkingcharge notice was issued, however the Appellant does not appear to dispute thatthere were signs on 26 October 2012 or that he did not know the requirement toshow a disabled badge when parking in a disabled bay.
    The Operator submits that the Appellant parked in a disabled bay withoutdisplaying a valid disabled badge. In the case summary the Operator refers tothe copy of the parking charge notice, however it was not submitted with theirevidence. Nevertheless, it does appear to be agreed (or at least not disputed)that the parking charge notice was issued to the vehicle in the car park of theAlma Leisure Park in Chesterfield.
    The Appellant made representations but does not offer any submissions on thefacts of the appeal, and neither party has enclosed the representations sent tothe Operator.
    The Operator states that photographs taken by the employee show that a disabledbadge was not visible. This is accepted, as it appears that the vehicle isclearly parked in a disabled bay without a disabled badge on display.
    Although the Appellant does not make any factual submissions whatsoever, hedoes make various legal submissions. One such submission is that the parkingcharge is not a genuine pre-estimate of loss, and that the Operator has notactually suffered any loss on this occasion. The Operator's response to thiswas that there was enclosed a costs sheet to show the calculation of thegenuine pre-estimate of loss, however there was none attached to theirsubmission. For the reasons set out below this is not relevant.

    A further point made by the Appellant in relation to whether the parking chargeis a genuine pre-estimate of loss is that the charge is actually a penalty. TheOperator submits that, a penalty has been defined in the courts as a sum thatis in excess of the damage caused by non-performance of an obligation under theterms of a contract.
    The Operator submits that in any case, the charge is not a genuine preestimateof loss because it is an invoice that the Appellant agreed to pay, for the useof a disabled space in which the vehicle was parked without a disabled badge.
    Another statement by the Appellant is that if the parking charge amounts to agenuine pre-estimate of loss, the amount of the loss should not change from £60for the first 14 days and rise to £100 thereafter. The Operator responded thatthe genuine pre-estimate of loss is £100, however that there is a discount ifthe charge is paid within the first 14 days.
    In addition, the Appellant states that if the parking charge is a genuinepreestimate of loss, the amount should vary for different breaches of the termsand conditions, for example parking over a white line or overstaying. TheOperator does not respond to this point.
    The legal submissions of the Appellant set out above are not accepted. TheAppellant parked the vehicle in the car park, thereby agreeing to thecontractual terms and conditions displayed on the signs. These included thecondition that vehicles may only park in a disabled bay if a valid disabledbadge was displayed.
    Another term of the contract was that if the vehicle was parked withoutcomplying with the conditions of the contract, the motorist agreed to pay aparking charge of £100 (or £60 if paid within 14 days). The submissions Ibelieve the Operator is trying to make is not that the Appellant has breachedthe contract giving rise to damages, as the Appellant appears to believe, butthat the Operator is seeking to enforce the contract. This is because theOperator is seeking payment of the charge which the Appellant accepted as aterm of the contract by parking his vehicle at Alma Leisure Park. The contractcannot now in effect be renegotiated.
    The parking charge is therefore not classed as damages or a penalty for breach,either of which might be linked to actual loss resulting from a breach andwould need the Operator to prove that the parking charge was a genuinepre-estimate of loss.

    The Appellant mentions the equitable principle that "one must come toequity with clean hands", and that the Operator is acting dishonestly asthey cannot legally recover the parking charge so therefore does not have"clean hands". However the law of equity is not relevant to theappeal and therefore this has been disregarded.
    Finally, the Appellant quotes Vehicle Control Services (VCS) v HMRC [2012] UKUT129 (TCC), stating that Operators cannot create contracts with motorists ifthey do not own or have any proprietary interest in the land. The Operatorsubmits that the authority produced shows that the occupier of the car park hasgiven them the power to manage the car park. In addition, the Operator submitsthat the signs stating that motorists who park are entering into a contractwith the Operator show that a valid contract was created between the Operatorand the Appellant. I am inclined to disagree, and instead following thereasoning applied in VCS v HMRC, that the Operator cannot offer the right topark as it has already been offered by the occupier, in this case as use of thecar park is free. However the Operator acts as an agent for the occupier of theland, and a valid contract was created although it is between the Appellant andthe occupier. Therefore in attempting to recover the parking charge in thiscase, the Operator is acting on behalf of the occupier as permitted by theauthority, and does not need to show a proprietary interest.
    The Appellant further submits that under the Unfair Terms in Consumer ContractsRegulations 1999, parking charges are unfair terms as the contracts are notindividually negotiated and causes significant imbalance in the relations ofthe parties, to the motorist’s detriment. However as the terms and conditionsof the contract are clearly displayed and the Appellant is therefore deemed tohave been aware of the terms, if the Appellant did not agree he would have hadthe option to park elsewhere. Therefore the Unfair Terms in Consumer ContractsRegulations 1999 are not relevant on this occasion.
    The Appellant not having disputed or referred to the facts in any way, I mustfind as a fact that, at the material time, a valid disabled badge was requiredto be displayed on the vehicle but was not visible. This was a breach of theterms and conditions of parking.
    Accordingly, on this particular occasion, the appeal must be refused.
  • Coupon-mad
    Coupon-mad Posts: 133,061 Forumite
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    I wouldn't try POPLA at all unless the angles of the dashboard are obviously skewed.

    Did your appeal identify you as the hirer?

    Or the driver?   
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • jh47777
    jh47777 Posts: 35 Forumite
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    I wouldn't try POPLA at all unless the angles of the dashboard are obviously skewed.

    Did your appeal identify you as the hirer?

    Or the driver?   
    I sent the email saying a disabled badge was used but I did not specify whether I was the driver, I also mentioned this when sending the email, that the email does not identify me as the driver.

    What do you advise I do? I am trying to get it cancelled and have 35 days to accept their £20 reduced fee as they say. Confused!
  • Coupon-mad
    Coupon-mad Posts: 133,061 Forumite
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    edited 9 March 2023 at 1:56AM
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    OK, not bad then.  You might be able to win at POPLA based on no keeper liability: no NTK being sent to you by day 56.

    What was the date of the windscreen PCN?
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • jh47777
    jh47777 Posts: 35 Forumite
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    That doesn’t sound promising, I don’t want to wager on a might, I’d then have to pay £35 for the admin fee to Enterprise for doing f all, and then have to acknowledge the ticket as well if it goes to court.

    I will chase a complaint from the retail manager and if that doesn’t work, the easiest thing to do might be to cough up the £20, as much as it pains me to say.
  • Half_way
    Half_way Posts: 7,100 Forumite
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    Retail park manager  complaint, mentioning that their agents, an un regulated parking company have breached the equality act (disability discrimination)  you have informed their agents that an occupant of the vehicle has a long-term disability as covered under the equality act (protected characteristic) .

    And that they are liable for the actions of third prty companys that they allow to operate on their land
    From the Plain Language Commission:

    "The BPA has surely become one of the most socially dangerous organisations in the UK"
  • jh47777
    jh47777 Posts: 35 Forumite
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    How do I get info of retail park manager? Thank you!!Half_way said:
    Retail park manager  complaint, mentioning that their agents, an un regulated parking company have breached the equality act (disability discrimination)  you have informed their agents that an occupant of the vehicle has a long-term disability as covered under the equality act (protected characteristic) .

    And that they are liable for the actions of third prty companys that they allow to operate on their land

  • jh47777
    jh47777 Posts: 35 Forumite
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    edited 9 March 2023 at 2:05PM
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    sent them an email (landowner is Tristan Capital) on their enquiries email, will this suffice? I also sent picture of my badge
  • B789
    B789 Posts: 3,441 Forumite
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    If it was a hire car and they failed POFA, either through the failure to issue an NtH or even if they did and didn't include a copy of the hire agreement, then that is a win. Maybe not at POPLA depending on whether you get an enlightened assessor or the tea boy. Doesn't matter.

    You then wait for an LoC or LBCC or county court claim within the next 6 years whilst ignoring any debt collection letters which are just scare tactics by debt collectors even though they know they have absolutely no power to do anything.

    Why would you pay even £20 to help fund these scammers?

    Read, re-read and read again the Newbies thread to fully understand the process. 99% of all claims that are advised on here win or are discontinued before they ever get to court. 1% fail, invariably due to not following the advice, trying to be too clever and screwing up or just giving in for the easy life.

    Are you a 1 percenter or a 99 percenter?
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