SIP Parking refused appeal for incorrect PCN - Lease company (Drivalia) already paid fine - SUCCESS

Coupon-mad

I already advised you to find the recent Arval thread and the recent Europcar thread.  This is already covered.

https://forums.moneysavingexpert.com/discussion/comment/81275695#Comment_81275695?utm_source=community-search&utm_medium=organic-search&utm_term=europcar+fine

1505grandad

As above  -  which contains:-

https://forums.moneysavingexpert.com/discussion/comment/81156717/#Comment_81156717

which may be relevant to the lease company's request:-

"..... however it is possible that the BVRLA has changed their position on this now, and we invite you to provide a reference to this if this is the case."

Coupon-mad

1505grandad said:

As above  -  which contains:-

https://forums.moneysavingexpert.com/discussion/comment/81156717/#Comment_81156717

which may be relevant to the lease company's request:-

"..... however it is possible that the BVRLA has changed their position on this now, and we invite you to provide a reference to this if this is the case."

Good call.  I'd forgotten that!  Very relevant and 2024 is up to date.

1505grandad

Also as stated in the BVRLA news article the relevant clause is in the latest unregulated CoP (soon to be replaced by a proper regulated PPCoP by the Government):-

https://www.britishparking.co.uk/write/Documents/AOS/Sector Code Templates/sectorsingleCodeofPracticeVersion1.1130225.pdf

"8.4.3.  Parking operators must provide a process for rental and leasing companies to transfer liability"

helmsleyhitter

Fruitcake said:

Fine and penalty are distinctly different to parking charge notices. Drivalia need to understand the difference, and learn about contract law.

Irrespective of what the BVRLA says, paying the charge to the PPC and then billing the hirer/lessee is unfair because it removes the hirer's right to appeal. If the hire/lease contract permits this action, then it is an unfair contract term and breaches the Consumer Rights Act 2015.

Once the charge is paid, it cannot be appealed. 

However, I believe the last line of your above post means the hire company has shot themselves in the foot.

"The recharge invoice plus the administration fee is not due to charged yet, however we will make notes on your agreement that this shall not be charged until this matter is resolved."

If it isn't resolved, you won't have to pay. 

If you can't post an image of your contract Ts and Cs, upload it to a web hosting site such as Dropbox or similar, then post the link here. If the site won't et you post links yet, change http to hxxp, and someone here will convert it to a live link for you.

Thanks I hadn’t realised it didn’t copy across - the contract term is below.

I feel it is ambiguous around parking charge notices that are distinct and separate from local authority fines etc.

I understand from other threads that the ‘contra proferentem rule’ - that states that if a contractual term is ambiguous or unclear, it should be interpreted against the party that drafted it - may apply.

I just wondered if there were any outcomes about this with other lease companies and not just in the back and forth stage same as we are.

Do they just go quiet when having been made aware of their poorly worded terms or continue to argue and levy additional charges?

I agree with you - if they were confident on this they would just say they will pass on the recharge but instead decided to wait ‘until this matter is resolved’ which is much weaker.

I took that to mean when/if there was an appeal and the outcome of that but for that I can only reiterate what I initially said in that they have removed this right by their actions of settling the charge and the PPC are uninterested in this now.

>>

10.12 promptly pay all fines, fixed penalties or other taxes or impositions relating to the Vehicle and/or its use (the "Fines" and each a "Fine") including, but not limited to parking tickets, speeding fines and congestion charges. The Hirer acknowledges responsibility for any Fines that may be incurred with respect to the Vehicle while it is hired to the Hirer. Any documents in respect of Fines may be given to the Hirer at the address in this Agreement (or such relevant address as reasonably determined by the Lessor). In addition, the Hirer shall on demand:

(a)

pay the Lessor an administration charge of £25.00 plus VAT for each occasion on which the Lessor is required to deal with correspondence or make arrangements in respect of the Fines (including, without limitation, receiving notification of a Fine and forwarding it to the Hirer for payment, dealing with or sending out any correspondence relating to non-payment of the Fine or arranging payment of the Fine (in accordance with (b) below)); and

(b)

repay to the Lessor any Fines (plus any late payment costs or surcharges in relation to such Fines) which the Lessor is required or elects in its absolute discretion to pay.

>>

helmsleyhitter

Coupon-mad said:

I already advised you to find the recent Arval thread and the recent Europcar thread.  This is already covered.

https://forums.moneysavingexpert.com/discussion/comment/81275695#Comment_81275695?utm_source=community-search&utm_medium=organic-search&utm_term=europcar+fine

.

Thanks I had taken a look they just didn’t look to have resolved yet and were in back and forth stage like me.

helmsleyhitter

1505grandad said:

Also as stated in the BVRLA news article the relevant clause is in the latest unregulated CoP (soon to be replaced by a proper regulated PPCoP by the Government):-

https://www.britishparking.co.uk/write/Documents/AOS/Sector Code Templates/sectorsingleCodeofPracticeVersion1.1130225.pdf

"8.4.3.  Parking operators must provide a process for rental and leasing companies to transfer liability"

Thanks very much I will make Drivalia aware of the BVRLA wording although I think they still think they are entitled to not follow this process - at their own discretion - which appears to be unfair since it removes right to an appeal. 

h2g2

I don't think their 10.12 (as you post it) could reasonably cover parking charges.

... promptly pay all fines, fixed penalties or other taxes or impositions relating to the Vehicle and/or its use (the "Fines" and each a "Fine") including, but not limited to parking tickets, speeding fines and congestion charges

ALL the elements listed are statutory / legal requirements. Not a single one of them is an invoice or contractual charge.

helmsleyhitter

Final outcome on this case - after an exchange of e-mails the lease company have "decided to absorb the costs and we will instruct SAFO [the 3rd party handler] to transfer liability for all fines to yourself wherever this is possible"

Copied below is the e-mail sent to the lease company, added in case others find themselves in the same situation as I have and need a rough guide. Thanks to all who contributed in some way to this discussion.

>>>>
"

Regarding the guidance from BVRLA that you state has been provided regarding fines, this is simply not true. Private parking companies cannot legally describe their Parking Charge Notices (PCNs) as Fines. Only authorities such as the police, local councils, and Transport for London can issue actual fines or penalties for parking infractions.

Private parking companies operate under contract law, as you alluded to, meaning their charges are considered a breach of contract fee rather than a fine. If a private company incorrectly refers to a Parking Charge Notice as a “fine” or “penalty”, then this is misleading under consumer protection laws. These companies must ensure their wording is clear and not give the impression they have the same legal powers as councils or police.

Regarding the BVRLA’s guidance on these fees and the transferring of liability, I would direct you to the following

https://www.bvrla.co.uk/resource/shifting-liability-added-to-private-parking-code-of-practice.html

and

https://www.britishparking.co.uk/write/Documents/AOS/Sector%20Code%20Templates/sectorsingleCodeofPracticeVersion1.1130225.pdf

which states "8.4.3.  Parking operators must provide a process for rental and leasing companies to transfer liability".

Drivalia have decided upon themselves to not transfer liability or to inform the parking company of the hirer/lessee details and have therefore accepted their own liability for the charge and settled the charge themselves.

There is now simply no avenue for which the hirer/lessee can make an appeal because liability has not been transferred. SAFO cannot do this on anyone’s behalf other than Drivalia. Please do not authorise SAFO to carry out any appeals in my name. As I mentioned in my previous letter, Drivalia have denied the right for the hirer to appeal the charge with the parking company by paying the fee and any contract terms that would allow the denial of these rights at the same time as transferring the fee to the hirer would be in breach of the Consumer Rights Act 2015 being an unfair term.

I am aware of section 10.12 in the Terms and Conditions of Hire. However, as previously discussed, this charge is not an actual fine, and fine is not a general term. Fines, fixed penalties, taxes, speeding fines and congestion charges are all issued by government or local authorities. “Parking tickets” is vague and in the context of other “Fines” within the contract examples clearly applies to official parking penalties issued by government and local authorities.
If the term “parking tickets” is intended to additionally cover private charges (that are not fines) then this should be explicitly stated in the contract. Courts interpret ambiguous or unclear terms such as this against the party that drafted the contract, applying the “contra proferentum” rule. Furthermore, if a contract has more than one reasonable interpretation, the court will favour the interpretation that benefits the party that did not draft the contract. Drivalia had the opportunity to make the wording clear and should bear the consequences of any ambiguity.

Any attempt by Drivalia to recharge a fee from a private parking company will not be authorised by my bank and a dispute raised with all the evidence provided as per our correspondence"

Coupon-mad

Very good indeed!