Euro Car Parks - Lease Vehicle - Notice to Hirer Received - POPLA Appeal Successful

garym71

I’m trying to help a friend out who drives a lease vehicle and has received a Notice to Hirer from ECP. The lease company first received a NTK (within 14 days of the alleged contravention) and immediately advised my friend by email that they had sent ECP a third-party authorisation naming my friend as the registered hirer. A few days later my friend received the NTH from ECP, so all within the permitted time periods. For clarity, the actual driver of the vehicle has NOT been named / disclosed.

It’s been a while since I dealt with defending a PCN and I’ve not dealt with one for a lease / hire situation before. I’ve read the newbies thread along with the links at the bottom that relate to lease / hire vehicles, so I've tried to do as much homework as I can before asking any questions.

My friend only received a single document - the NTH itself. As I understand from PoFA 2012 Schedule 4 paragraphs 13 & 14, ECP should also have sent my friend "a copy of the hire agreement" and also "a copy of a statement of liability signed by the hirer under that hire agreement" along with the NTH, but neither of those were included. If the lease company didn't send either of those to ECP (we don't know if they did or not) when naming my friend as the hirer, it's not clear what ECP's obligation is around those two documents. I'm not yet able to post links, so for reference I've quoted the relevant parts of the POFA 2012 Schedule 4 paragraphs that relate to lease / hire vehicles at the bottom of this post.

Because those additional two documents weren't included with the NTH, I believe that ECP have now forfeited their right to pursue the registered hirer. Is this correct, or is it different for a lease / hire situation?

Also, because the lease company have now named my friend as the registered hirer, does that mean that ECP have no rights to try and go back to them for payment as the registered keeper, or have their rights to do that now also been forfeited? In my friend's lease contract it states that if the lease company gets served with a second notice, payment will be made and invoiced to their employer for deduction from your salary along with an administration fee. It's a salary sacrifice lease vehicle. So there is a concern that could happen.

PoFA 2012 Schedule 4 paragraph 14.2 states the following:

14 (2) The conditions are that—(a) the creditor has within the relevant period given the hirer a notice in accordance with sub-paragraph (5) (a “notice to hirer”), together with a copy of the documents mentioned in paragraph 13(2) and the notice to keeper;

(b) a period of 21 days beginning with the day on which the notice to hirer was given has elapsed; and

(c) the vehicle was not a stolen vehicle at the beginning of the period of parking to which the unpaid parking charges relate.

PoFA 2012 Schedule 4 paragraph 13.2 which is referenced in 14.2.a states the following:

13 (2) The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given—

(a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement;

(b) a copy of the hire agreement; and

(c) a copy of a statement of liability signed by the hirer under that hire agreement.

Gr1pr

The parking company have failed to transfer liability from the keeper to the hirer using the law named POFA 2012 , they haven't forfeited anything,  just made it unenforceable under the law,  by failing to include a copy of the hire agreement,  similar to this thread below 

https://forums.moneysavingexpert.com/discussion/6588260/nsgl-parking#latest

Its important to follow the hirer appeal process throughout,  to stop ECP going back to the keeper 

The contract between the keeper and the hirer determines what may or may not be allowed,  nothing to do with the parking company or the incident itself 

I suppose that because no copy of the  contract was provided by the company to ECP,  there could be a future dispute raised,  not the hirers fault if 2 companies cannot comply with the law after 12.5 years

Concentrate on the here and now,  appealing as hirer on the Pofa2012 failures so no hirer liability 

Fruitcake

The friend should appeal as hirer using the relevant edna basher letter you will find in the sticky Announcement for NEWBIES. There are three to choose from and they can be found just after the template in blue text (that should not be used in this instance).
Show us the draft appeal before it is submitted.

You are correct in your assumptions that the NTH is not PoFA compliant because the documents mandated in paras 13 and 14 were not included with the NTH.

As a precaution, your friend should also tell the hire company that they (the hirer/lessee) is now dealing with this, and warn the hire company that since they are no longer liable, they must not pay the charge under any circumstances.

garym71

Thank you both for taking the time to reply. It's appreciated and confirms what I thought was the case.

I guess the terminology of "forfeit" that I used was a bad choice of words. Failed to comply with legislation would have been a better phrase to use.

I've told my friend to immediately email the lease company to let them know that that as hirer they will be challenging and dealing with the PCN, and that the lease company should not make any payment to ECP for the PCN under any circumstances.

I already saw the Edna Basher templates during my research so I will select one of those to use. It's going to be a case of whether to make ECP waste more of their time by using the short and sweet template which leaves them guessing as to which PoFA 2012 legislation points they actually failed on, or whether to try and nip it in the bud by using the other more comprehensive template which provides them with some better hints as to what they did wrong. I guess the former template means it may end up going to a POPLA appeal if they don't understand what they actually did wrong and don't cancel the PCN as a result, but it also means that without detailed info they may continue to fail on those same points when sending out any future NTKs / NTHs to people which will then continue to leave that door open for others as a point of appeal against ECP PCNs.

Fruitcake

They already know, (or should know) why their NTH has failed, but hope most people aren't savvy enough to know this and blab about the driver's identity, or panic and pay the mugs discount instead of doing their research, unlike yourself who took the trouble to educate yourself, and have now passed that knowledge on to your friend.

Would you now help us by signing the petition linked below, and getting your friends and family to do the same.

Bring the Parking Code of Practice into law, as per the 2019 Act of Parliament. - Petitions

Nothing will change unless motorists complain to our MPs, because they are the only ones who can force a change.

garym71

I know about holding off on appealing a windscreen issued PCN until an NTK is received, but after receiving an NTK / NTH is it best to wait until close to the end of the 28-day period before submitting an appeal to string things out for as long as possible for the PPC, or is it better to just immediately get on and lodge an appeal to an NTK / NTH with the PPC?

I've signed the petition and will pass the link onto my friend and others I know to sign. It's a shame there isn't a way to better publicise the petition to give it a wider reaching audience other than the people who visit these forums.

ChirpyChicken

just doing it no benefit holding it off

Fruitcake

garym71 said:

I know about holding off on appealing a windscreen issued PCN until an NTK is received, but after receiving an NTK / NTH is it best to wait until close to the end of the 28-day period before submitting an appeal to string things out for as long as possible for the PPC, or is it better to just immediately get on and lodge an appeal to an NTK / NTH with the PPC?

I've signed the petition and will pass the link onto my friend and others I know to sign. It's a shame there isn't a way to better publicise the petition to give it a wider reaching audience other than the people who visit these forums.

Once the NTH has been given (to the hirer/day-to-day keeper) it is too late for the PPC to recover the situation. Some have tried by later providing the documents specified in paras 13 and 14 of the PoFA, but the PoFA is quite clear. 
The NTH is only valid if it is accompanied by the docs. Sending them later does not comply with the strict requirements of the PoFA.

In other words, there is no advantage in waiting before appealing.

garym71

Thanks again

I decided to use Edna Basher's more concise appeal template (the one from January 2016) and have told my friend they can submit the appeal any time they like as long as it's done before the 28-day period expires. If ECP have any sense they will just cancel the PCN at this appeal stage to avoid them having to waste any more of their own time going down a dead-end road.

I'll add an update to this thread once a response is received from ECP.

LDast

ECP won’t cancel the PCN but POPLA should.

You don’t know whether the lease company included copies of the required documents when they transferred liability to the Hirer. If they didn’t, then technically, they could still be liable but you must remember, you are dealing with an unregulated private parking company that is staffed with intellectually malnourished people who will not be able to comprehend that fact.

Just send the Hirer appeal and wait for the rejection with the POPLA code.

You could ignore everything and wait for the inevitable court claim, defend and it will eventually be discontinued. Only the low-hanging fruit on the gullible tree pay ECP out of ignorance and fear.

garym71

Yes, unfortunately we don't actually know if the lease company provided the additional two required documents to ECP, but I was under the impression that following PoFA 2012 Schedule 4 legislation was the responsibility of the PPC, not the lease / hire company. So if the lease company didn't provide those two required documents to ECP then surely it would have been the responsibility of ECP to go back to the lease / hire company and ask for those missing documents BEFORE sending out an NTK to the hirer of the vehicle. Or am I wrong?

I could potentially get my friend to ask the lease company if they sent copies of those two documents to ECP, but I'm reluctant to put any spanners in the works and potentially jeopardise the appeals process by doing that. So it's probably best to just leave it and let things run their course.