Hello All,

Hoping someone with more grey matter than me can advise what I should and shouldn't do next.

The driver received a parking charge notice last weekend whilst the car was unattended in a visitors bay in a residential estate in West London, the driver had broken down and pushed the car off the main road into this estate and then went back to a friend whose house they had just left to phone and wait for a mechanic.

A couple of things to consider, the car is my mothers (the driver was taking her to visit) so she is the registered keeper. Ace are a member of IPC so can get the keepers details and I really don't want her to start receiving demands for payment as she is elderly and isn't good with stress.

An appeal was made directly to ACE as advised on their 'ticket' as broke down and provided proof of a call out to a local garage and receipt of work done and included my name and address to spare my mum the stress as below:

Re PCN number: xxxx
Vehicle reg: xxxx xxx

I appeal and dispute your 'parking charge', as the keeper of the vehicle. I deny any liability.
There will be no admissions as to who was driving and no assumptions can be drawn, nor was there an agreed contract.

The driver of the vehicle had broken down and took steps to get the car off the road as quickly and safely as possible from xxxx road into xxxxx (****attached photos showing that there were zig zags along the road due to a zebra crossing and that the only safe option was to turn left into the parking controlled estate****)

The driver then returned to his hosts home to locate and contact a breakdown mechanic and await arrival of the breakdown service.

Please find attached a copy of the mechanics VAT invoice. (****attached scan of receipt****)

I contend that due to a mechanical breakdown the driver did not enter into a contractual agreement with Ace Security services Ltd trading as Pace.

My name

My address

They replied the next day as below:

Dear xxxx xxxx

Thank you for your e-mail, unfortunately as this stage we can only accept an appeal from the driver who parked the vehicle prior to the Charge Notice being issued, as the responsibility lies with them as they entered in to the contract for parking, and they must appeal within 28 days otherwise they will lose the right to appeal.

The registered Keeper can only appeal after 28 days of the Charge Notice being issued and a Notice to Keeper being sent out and received. As you have contacted us regarding this Charge Notice, you are already aware of it and therefore you would lose the right to appeal after the 28 days from when the Charge Notice was issued.

Therefore we would politely suggest that the driver appeals to us regarding this Charge Notice. As previously stated, if the driver does not identify themselves within 28 days of the Charge Notice being issued the right to appeal will be lost.

Yours Sincerely,

Appeals Department
Ace Security Services

So as above Ace have declined to accept my appeal as I did not name the driver... I am assuming that giving them the drivers name will not then allow my appeal to be considered and upheld... that this is simply a tactic to get me to name the driver and they will press on regardless?

A few questions as below:

1: If they will not consider my initial appeal can I still appeal via the IPC (even if this is a kangaroo court)?

2: If I receive a claim letter from their solicitors, will they send this to me ...or to the registered keeper, being mindful that I do not want the driver to receive anything that may cause them any stress?

3: I sent a VAT mechanics receipt and photos showing zig zag lines on the main road the only option being for the driver to pull off the road. Would a judge in the county court dismiss this or does Ace have the right to penalise me where I have proof of mechanical failure? What i am asking is breaking down and being unable to move a car for a short period of time a solid and robust defence ... or should I just pay to avoid the stress?

Thanks in advance for any insight

This post has been edited by frequency: Tue, 11 Sep 2018 - 22:04

Edit your post so that the identity of the driver cannot be inferred, Use "the driver....." etc.

Just keep quiet and appeal again as the keeper close to the 28 days that they allow so as to remind them. They may think that they have the keepers details and may not bother to contact the DVLA for the details to save themselves £2.50 and may not bother to issue a Notice to Keeper within the mandatory 56 days to hold the keeper liable. Either way they lose. This has worked before.

Forget about the IAS, you will lose.

If it gets to court then the legal excuse of "Frustration of Contract" ie the contract couldn't be conformed with because of matters outside the drivers control, is a good one.

That's great I will look up frustration of contract
thank you

I think frustration of contract would be weak here - the breakdown occurred before the car was parked, and the driver chose to move the broken-down car there.

hmmm I hear you, the car stopped on a main road just past a zebra crossing and there were zig zag lines all the way until the turn into the area where it was parked, the road ahead had cars parked and would have meant trying to push a heavy automatic car out into the middle of the road with no knowledge of whether there were parking spaces up ahead.

The highway code first point in rule 274 is "get your vehicle off the road if possible".

Still worth a punt?

Of course it's worth a punt. You were so busy pushing the car to comply with the requirements of the highway code that you failed to notice the signs around because they were not obvious.

contracts are frustrated by unexpected events which occur after they have been made, not before.

But there was no contract possible until the driver had sight of the signs and there was no intention to create a contract.

This post has been edited by ostell: Wed, 12 Sep 2018 - 07:33

I am beginning to wonder that if that is my defence and frustration of contract is normally caused by unexpected events after the initial contract that I may be on a sticky wicket.

Absolutely despise that these cowboys can get away with this but also weighing up the fact that 'natural justice' may not be served and that the driver could be liable on technicalities.

Maybe best to chalk this one down to experience, no idea how a judge would view this and I really don't want to end up paying more.

Unfortunately they are litigious (here) - frustration indeed applies when a contract has been agreed but cannot be performed due to an unexpected external factor.

Don't give up, yet. The PPC and the IPC may not (almost certainly will not!) agree, but a county court with a real judge could very well decide to apply the basic law of contract to a claim by the PPC against the driver or RK. This was not "frustration" of contract as Eljayjay pointed out above, because very likely no contract ever existed, given that the driver had no real choice about where to push the vehicle and, thus, no intention to enter into contractual relations with the PPC (one of the essential elements of a contract). There will be case law on this point, but these facts clearly demonstrate a lack of intent, nor would anyone else in such a situation be expected to enter into a contract for parking (which is probably also a "parking in breach" anyway).

But, OP, you may have to fight the PPC in court on this one.

--Churchmouse

Thanks Churchmouse,

Further developments:

Ok the tenant of the tenant of the property visited had in fact supplied the driver with a visitors parking permit from the previous PPC which was on display in the vehicle.

She also found a letter from the property management company dated middle of August which stated:

'I am writing to advise that ACE Security is now the new parking control enforcement for the xxxx xxx development. We have agreed for a grace period to be extended till the 1st September 2018 for all residents to ease into the transition.'

Additionally the letter 'apologises for the six properties that did not receive their permits initially' and adds 'your permits will be enclosed in this letter' which they were not.

As the vehicle received the Parking Charge on 1st September and the ambiguous use if till rather than until and that the tenant has still not received any Ace Security permits is it worth me going back to Ace with the photographic proof of the letter and the PC and see what they say?

Thanks

That sounds like a much better basis for building a sound defence.

What we really need to see are two documents: the head lease for the flat; and the tenancy agreement. [I am presuming here that the tenant visited is not the leasehold owner of the property.]

You will probably need to upload them to another site (after redacting the personal details) and provide links here.

By all means add the letter, but do not expect them to cancel, its purpose is to tell them you will be a hard nut to crack if they raise a claim and to pick another victim instead. Remember to appeal on day 26 as keeper to tempt them to save the £2.50 DVLA fee, another nail in their coffin of keeper liability. If a claim is raised then you next piece of armour will be the tenants lease as its very doubtful that ACE have the authority to be paid for the use of the landlords space.

The property is housing association and the occupier is under an assured tenancy with them, she is now looking for her tenancy agreement, quickly googled head lease and think that this is not applicable then?

Will provide a link when photos received after redacting personal information.

Thanks



Thanks Kommando,

Email the letter from the property management company today ... and appeal again on day 26?

I already made an appeal after 7 days which was rejected as not naming the driver.

Emailed the property management company today and provided proof of their letter and asked them to cancel this ticket as a matter of urgency, not holding my breath.

Yes. You can repeat that, as registered keeper, you have no liability and here is a letter from the MC to prove it.

IF they use your given details to contact you as RK, rather than buying the info from DVLA, they breach PoFA. Include in your name or address a small error so that you have evidence of how they obtained your details. eg, Greene instead of Green or Simth instead of Smith, etc.

Ok link to photobucket http://s44.photobucket.com/user/essential-matters/library/







Thanks Cabbyman, I only replied as the keeper not the registered keeper, this may or may not be someone else....

As long as there was no hint as to the driver, that's fine.

Use Image shack or Imgur for that lease extract, please. Photoshop is cr*p.

https://imageshack.com/a/img924/4889/G6W0uA.jpg

https://imageshack.com/a/img921/4944/5XIjZw.jpg

There isn't much info on what I have been sent, does it help?