SmartParking + Company Car + Scotland

RiskyJ

Just checking I have understood the advice provided on the forum before I proceed.

The alleged offence took place in Scotland. I have no idea who the landowner is, as the land in question is effectively a vacant/derelict bit of ground with a fence round it, e.g. not a hospital or retail park.

There was no ticket on the vehicle windscreen - the alleged offence was captured via ANPR cameras at the entrance/exit.

Received notification from my company car provider (Arval) on 23/06/23 of a parking fine against the vehicle from SmartParking (BPA member). The copy of the parking charge notice they included in the e-mail shows a "Date of contravention: 08/05/2023" and "Date Issued: 13/06/2023".

Arval state in their e-mail:

"We have contacted the issuing authority on your behalf and have asked them to send the fine direct to you, at the 'hirer' address listed above. This is because in your leasing contract you are responsible for either paying the fine/penalty amount or appealing upon receipt from the authority."

There are then two statements which I feel contradict one another:

• Arval are unable to liaise with the authority regarding the offence once the liability has been transferred due to data protection
• If you ignore the fine and not pay it Arval will receive an escalation notice and we will pay the fine and recharge the cost to you to avoid any further escalation or legal proceedings.
  

Not sure how both these things are possible, but anyway....

A copy of the letter arrives at my home 01/08/23. (Almost 3 months after the alleged offense)

The 'Parking Charge Notice' simply states "your vehicle failed to pay for sufficient time", but does not state how much time was paid for and therefore what the exact overstay was. There are photographs of the vehicle entering and exiting the site, but it is not possible to see the driver (the image is cut-off at the bottom of the windscreen.

If I have understood the guidance correctly, I should appeal to SmartParking directly, using the template, but since I am in Scotland does it suffice to simply say I will not identify the driver? Or do I still need to ask them to provide evidence of the overstay amount/grace period etc.
I'm slightly concerned that I've technically lost the ability to appeal due to the length of time it has taken for the notice to reach me.

YankeeBrit

Welcome. You are dealing with (not so) Smart Parking. Have you received the NtH from (not so) Smart parking? If so, did they include all the required copies of documents as advised in the Newbies/FAQ thread?

Your lessor is obviously a little bit intellectually malnourished, just like (not so) Smart Parking. You may wish to inform them that what they received is neither a "fine" nor a "penalty" but a speculative invoice for an alleged breach of contract from an unregulated private parking company and in no way are they an "authority" that can issue "fines" or "penalties". However, as they have now transferred liability from them as the registered keepers of the vehicle to you are the day-to-day keeper of the vehicle, they should not take any further action.

As you are in Scotland, there is no keeper liability. As (not so) Smart Parking have no idea who the driver is, they cannot pursue you, the registered keeper. You are under no legal obligation to reveal the identity of the driver and you should not do so, under any circumstances.

You could send an email to (not so) Smart Parking with the following:

I am writing to you as the hirer of vehicle AB12CDE. As you should be aware, in Scotland only the driver can be held liable for your speculative invoice no.: XXXXXXXX. As I am under no legal obligation to reveal the driver's identity to you, I have passed on the invoice to the driver.  Therefore, I now expect you to remove my personal details from your system as per my GDPR rights under Article 12 of the UK GDPR and Section 168 of the Data Protection Act 1998.

I remind you that breaching the GDPR is a criminal offence and should I not receive within 14 days, confirmation that my personal data has been erased from your system, I will report your actions, or lack of them, to the Information Commissioners Office and I reserve the right to initiate claim for damages under Article 84 of the UK GDPR and Section 168 of the Data Protection Act 1998.

Your main concern is not letting your dopey lessor pay any invoice from an unregulated private parking company. They also should not be charging you any administration fee as, if you check your lease agreement, there is probably no mention of charges from unregulated private parking companies.

RiskyJ

The letter received simply states "Parking Charge Notice". Nowhere does it mention a "notice to hirer", "notice to keeper" or anything of that sort. The closest it comes is the following:

"PCN Information:
This Parking Charge Notice has been issued to [vehicle registration] because your vehicle failed to pay for sufficient time at [location] on 08/05/2023. This is supported by camera images of the vehicle entering and exiting the car park. Smart Parking Ltd. are able to request registered keeper details from the DVLA, under the reasonable criteria of recovery of private parking charges.

[section about signage etc.]

If you were not the driver of the vehicle and you wish to provide the drivers details, lodge a dispute, appeal or query this notice, this must be made online or in writing."

Coupon-mad

We have contacted the issuing authority on your behalf and have asked them to send the fine direct to you.

Perfect!  Exactly what you want.

But:
It's not a fine and they aren't an issuing authority.

Once you receive your own Notice, send the EdnaBasher special appeal for lease/hire cars (end of the first post on the NEWBIES FAQS thread) to Smart.  You can't lose.

When you win you can ask Arval for the admin fee back and tell them that Smart don't use the POFA and there's no keeper liability yet in Scotland, so Arval were never liable at all but you've appealed it and won anyway.

YankeeBrit

Just to clarify... your lessor received an NtK (PCN) from SP. Your lessor wrote back to SP transferring liability to the hirer (you). What have you received from SP? If SP has followed the correct procedure, they should have reissued the PCN as an NtH to you together with a copy of your lease agreement as provided by your lessor to them.

If they have just resent the original PCN (NtK) to you they have breached their own ATA CoP. You should complain to the BPA.

SP is not known to litigate and you should also complain to the landowner or store where this happened. Also, complain to your MP. At the end of the day, apart from weathering the storm of useless debt collector letters, which you ignore completely) this will whither on the vine, so to speak.

Just make sure that your dopey lessor doesn't pay the private invoice if SP tries and goes back to them chasing it. You are not liable for the payment if they decide to breach their own association rules. Complain to the BVRLA.

RiskyJ

YankeeBrit said:

What have you received from SP? If SP has followed the correct procedure, they should have reissued the PCN as an NtH to you together with a copy of your lease agreement as provided by your lessor to them.

If they have just resent the original PCN (NtK) to you they have breached their own ATA CoP. You should complain to the BPA.

They have sent me a letter identical to the one they originally sent Arval, with my address in place of Arval's. That's the only difference. 

Coupon-mad said:

When you win you can ask Arval for the admin fee back and tell them that Smart don't use the POFA and there's no keeper liability yet in Scotland, so Arval were never liable at all but you've appealed it and won anyway.

As far as I can see, I should be entitled to the admin fee back in any case, because the Ts&Cs of the lease use the words "fine", "penalty charge" and "authority". From what YankeeBrit said, SmartParking are not an authority and the PCN is not a fine nor is it a "penalty charge".

RiskyJ

Sorry for the double post, this is the template you're suggesting I use?

Dear Sir,

Parking Charge Notice [0123456789]: Vehicle Registration [AA11ABC]

I refer to the above-detailed Parking Charge Notice (“PCN”) issued to me by SmartParking Ltd ("SmartParking") as a Notice to Hirer. I confirm that as the hirer of this vehicle, I am its keeper for the purpose of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”) and I write to formally challenge the validity of this PCN.

You will no doubt be familiar with the strict requirements of Schedule 4 of POFA to be followed in order for a parking operator to be able to invoke keeper liability for a Parking Charge. There are a number of reasons why SmartParking's Notice to Hirer did not comply with POFA; in order that you may understand why, I suggest that you carefully study the details of Paragraphs 13 and 14 of Schedule 4 in particular.

Given that SmartParking has forfeited its right to keeper liability, please confirm that you shall now cancel this charge. Alternatively, should you choose to reject my challenge, please provide me with details of the Independent Appeals Service (POPLA), their contact details and a unique POPLA appeal reference so that I may escalate the matter to POPLA.

Thank you for your cooperation and I look forward to receiving your response within the relevant timescales specified under the British Parking Association Ltd Code of Practice.

Coupon-mad

Yep - that kills it.

As far as I can see, I should be entitled to the admin fee back in any case, because the Ts&Cs of the lease use the words "fine", "penalty charge" and "authority". From what YankeeBrit said, SmartParking are not an authority and the PCN is not a fine nor is it a "penalty charge".

All of which I stated in my earlier reply!

YankeeBrit

I would just respond with:

PoFA does not apply in Scotland. I suggest you chase the driver.

Keep it simple for the intellectually malnourished (not so) Smart Parking.

RiskyJ

Sorry confused now. @Coupon-mad you are saying to use a template that references POFA, but @YankeeBrit is saying POFA doesn’t apply in Scotland ?

Coupon-mad

Either will do!