Car lease company paid PCN

kensiko

Hello all

I read the following 2 threads before writing an email to my car leasing company and am after some feedback if anyone can offer any:
https://forums.moneysavingexpert.com/discussion/6506031/parking-notices-paid-by-leasing-company
https://forums.moneysavingexpert.com/discussion/6506750/car-lease-company-paid-private-parking-companys-parking-charge-sent-me-the-invoice-to-pay-them

The leasing company is Santander Consumer Finance (SCF) and as far as I am aware they are not associated with BVRLA apart from the wear and tear guide for returning vehicles.  For this reason I have not mentioned BVRLA in my email even though the threads above have mentioned them.

SCF recently sent me confusing email regarding a PCN which had a letter attached that they sent to Smart Parking passing my details over (which is far enough, you would say) but also the email stated no more action was needed as the 'fine' was paid.

I emailed for clarification and they advised the PCN was indeed paid.

After doing some research I have created a first draft which I will be sending SCF, so was after some feedback if anyone has anything to offer to add/edit/delete:

"The word 'parking' appears only once throughout the 20 clauses of the 'terms of hire agreement' which I signed and my copy is attached.

Clause 5.1.9 states:

'You will promptly reimburse us for all parking fines and other fixed penalties or charges that we have paid in relation to the vehicle. You will also pay us such sums as we consider reasonable to cover our administration costs connected with these payments. Our costs will be at least £30.'

Parking fines and fixed penalties/charges are are issued by the police, councils and the DVLA as per government guidance at https://www.gov.uk/parking-tickets

'Other parking tickets' are stated near the bottom of the page and include 'tickets from private companies' which the PCN in question is.

Fines issued by the police or council are a criminal matter. Private tickets are a civil one and are effectively an invoice for breaching the terms and conditions of parking.

Private tickets have no official legal standing by themselves and are not legally enforceable without court action.  They rely on me entering into a contract with the landowner by parking in the space which I have the right to appeal.

The Consumer Rights Act 2015 Part 2 Section 69 (1) states:

'If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.'

I would argue the clause in my contract covers only official criminal police or council issued parking fines with unofficial civil 'parking charge notices' not being referenced.

This favourable meaning is what I was led to beleive when signing.

In any case, paying ANY charge on my behalf is an unfair contract term as defined by The Consumer Rights Act 2015 Part 2.

Schedule 2 Paragraph 20 gives a specific example of an unfair term as it denies the opportunity to appeal:

'A term which has the object or effect of excluding or hindering the consumer’s right to take legal action or exercise any other legal remedy'

By you paying this PCN and taking full liability, I have been denied my right to appeal the PCN myself.

In summary, I would therefore ask for the £90 extra charges you have taken from my recent direct debit to be fully reimbursed on my next due direct debit.

The original £60 which you paid was part of:

1. a contract term which is very ambiguous in nature (CRA 2015 Part 2 Section 69 (1)) as it relates to criminal fines and penalties rather than civil parking charge notices and;

2.  an unfair contract term (Consumer Rights Act 2015 Part 2 & Schedule 2 Paragraph 20) by hindering my right to appeal

The £30 admin charge I would ask to be refunded as the contract term 5.1.9 states that the payment is for "costs connected with these payments".

If this is refused I will escalate this to your formal complaints department via https://www.santanderconsumer.co.uk/managing-your-contract-hire-account/make-a-contract-hire-complaint/ and furthermore to the FOS if that will be required."

Fruitcake

By paying the charge, the lease company hasn't hindered your right to appeal, it has removed it completely, which is an unfair contract term.

Half_way

Is this charge business to business or business to consumer ( ie you)?

You should also throw in that Smart parking are an un regulated so called parking company.

If this charge is by direct debit you should be able to reverse it, the lease company will hate this but you should give the hire/lease company notice that unless its re funded you will take this action.

Be prepared for a to and fro/fight as the hire company staff will more than likely not understand what private parking charges are and incorrectly label them as fines

doubledotcom

If you can't get the payment reversed by your bank, as a disputed payment, then you will have to sue SCF for the money.

You may want to remind SCF that under PoFA, all they were required to do in order to remove any liability to themselves is to transfer liability to you, the Hirer, together with a copy of the hire/lease agreement and a copy of the liability statement. Once that was done, they would be off the hook and (not so) Smart would have had to issue a Notice to Hirer (NtH) to you, in your name.

kensiko

Fruitcake said:

By paying the charge, the lease company hasn't hindered your right to appeal, it has removed it completely, which is an unfair contract term.

Good point, I have edited 'hindered' to 'removed' in my summary.

Half_way said:

Is this charge business to business or business to consumer ( ie you)?

You should also throw in that Smart parking are an un regulated so called parking company.

If this charge is by direct debit you should be able to reverse it, the lease company will hate this but you should give the hire/lease company notice that unless its re funded you will take this action.

Be prepared for a to and fro/fight as the hire company staff will more than likely not understand what private parking charges are and incorrectly label them as fines

This is B2C.

I will add on that I will reverse the DD should the refund be denied.

doubledotcom said:

If you can't get the payment reversed by your bank, as a disputed payment, then you will have to sue SCF for the money.

You may want to remind SCF that under PoFA, all they were required to do in order to remove any liability to themselves is to transfer liability to you, the Hirer, together with a copy of the hire/lease agreement and a copy of the liability statement. Once that was done, they would be off the hook and (not so) Smart would have had to issue a Notice to Hirer (NtH) to you, in your name.

Smart(ish) Parking don't bother with PoFA as can be seen on the attached PCN from Santander.
It is interesting they give them the option of paying OR passing my details on to them.  It seems they've done both as I had a copy of the letter attached that SCF allegedly sent Smart Parking passing on my details.  Even if the letter was sent, I would be VERY surprised if Smart Parking ever got in touch with me now the PCN has been paid.

Fruitcake

I would also suggest that by paying the charge, SCF accepted liability.

kensiko

I have made amendments to my first draft following helpful comments.  In the meantime I have received the following from SCF:

"Thank you for your email. As per our initial email we can confirm that  PCN XXXXX has been paid. 

Just to confirm the third party permissions letter was only provided to yourself and can be attached when contacting Smart Parking LTD."

So it seems they have just paid Smart Parking and the letter with my details on is for me to send to Smart Parking to appeal.  In what world do they think Smart Parking are ever going to contact me now?  I have however, started an appeal with SM just to see what they say.

Half_way

Just for the sake of "reasonableness"  Contact Smart parking regarding the parking charge notice, state that you are the hirer/lessee of the vehicle on that day, and you would like to appeal the parking charge notice from which you are seeking a full refund from Smart parking of the initial parking charge notice, plus any other fees.

If they have not complied with the protection of freedoms act you need to keep the following separate - all of them can be separate people/entities

The Owner

The Registered keeper ( ie lease/hire company)

The Hirer/lessee 

The Driver on the day 

Also, who's car park was this/where was it?

 You could try the car park owner with something similar to the message to smart - ie you are seeking a full recovery of costs form the car park owner as a result of them allowing an un regulated parking company onto their land, and as principal they are severally and jointly liable for the actions of their agents, in this case the un regulated so-called parking company, smart parking.

doubledotcom

(not so) Smart have their money. They're not going to give a toss about anything you may try to appeal to their better nature about giving the money back to the utter morons at SCF and issuing you an NtH.

Let's be reaslistic, the only way you are going to get your money back is by disrupting the payment with your bank and let SCF try and sue you for it. Or, you sue SCF for breach of your rights.

1505grandad

" Or, you sue SCF for breach of your rights."

I wonder if a house or car legal cover policy would cover this?