Hi All,
This is a new PCN. I think this is becoming my new hobby :-)
https://ibb.co/b39a5y
The duration is 3h30min
The driver has paid for the 1st hour then was held by a physiotherapist and bought a ticket for another 1h. There is still 1h30min of unpaid parking.
This £100 does not look like a fair penalty considering the contravention.
Please advise.
Best regards,
First edit your post and remove anything that may ID the driver.
Refer only to "the driver" did this or that.
Anything else?
What are your thoughts? Any line of defence or is it better to pay in this case?
You have blanked out key helpful information like dates! Also you need to publish the reverse side of the PCN if you want any help.
https://ibb.co/cXMTAy
Time of breach of terms and conditions: 18/05/2018
Letter sent: 25/05/2018
Photos and locations of signs?
https://ibb.co/cJn4Hd
https://ibb.co/dn2h3J
I think signs are at the entrance to the parking.
What do they say and are they readable? You are asking for help but not making it easy for anybody to help you. Unless anybody can identify a technical loophole you will be struggling to avoid paying.
Before thinking of paying, have a look and find out if their court claims are very high. You can gauge your chances then!
Check out the BMPA PADI database.
I appreciate it is 15 miles away but the signs define what contract you entered into.
http://www.parkingappeals.info/companydata/LCP_Parking_Services.html
Currently indicating zero risk of Court!! There have been no cases going to court in 2018 and only 6 in 8000 in 2017. It is basically uneconomic for these companies to go to Court hence they generally don't bother no matter how many threats they issue. Toothless tigers!
Yes, let them roar. However it is worth getting those pictures if you can as it might identify a technicality which would put the tiger in the cage. Follow the appeals process but then ignore debt collection letters but keep copies of everything. Watch put for a LBA will will need to be formally responded to. It is quite entertaining watching a tiger gnash its gums!
Signage is all that makes these into a "contracts" issue, and if the signs are missing, cant be read, dontt actuall offer a contract then there isnt a contract.
Ok, what should I put as my representation then?
What has your research on here and MSE parking forum -> Newbies thread told you you should put in your appea;L/
Which is still an overstay outside of grace periods, so obviously POPLA will say thats a breach.
What does "held by the physio" mean? Appointment overran?
So frustration of contract would be an obvious answer there!
It is a legal concept - for reaosns outside of their control, the driver was unable to comply with the terms of the proferred contract. The contract was therefore frustrated, and it is settled law that a ftrustrated contract cannot attract any charge. This is something the Operator would be well aware of gifven the nature of the site, and shoul dhave procedures to deal with.
Have you in the last week performed an obvious search or two?
I have been so busy I had no time to look into it and I think the system basically exploits working people so they give up and pay this bloody £60-100.
I have found a thread here about "frustration of contract" at some other car park
http://forums.pepipoo.com/index.php?showtopic=120153&st=20&start=20
not sure if this is usable.
I have also found some threads related to frustration
http://www.pepipoo.com/forums/lofiversion/index.php/t105304-50.html
http://forums.pepipoo.com/lofiversion/index.php/t113484.html
Someone has challenged at the very same location, but the decision was not optimistic:
https://forums.moneysavingexpert.com/showthread.php?t=5522845
Not sure if I can use the wording from the 1st link.
By the way I am not the registered keeper so as who should appeal on their unsecure website http://lcpappeals.com ?
Wait until the registered keeper receives a Notice to Keeper
It will probably contain errors that will prevent LCP from recovering payment if they don't know who was driving
This forum never supports telling lies
They can bite back if the parking company recognises the case
Notice to keeper has been received nearly a month ago. The pictures of both sides are attached in my previous posts.
So far no one has found any problems with them.
Have you found any problems with them?
POfa schedule 4 para 9. Fairly simple list of requiremetns it must meet.
Did they give the warnign to keeper, about them being liable 28 days starting the day after the notice is given? Thats usually messed up. Thats (f) above.
"breach of contract" is not a description of the circumstances.
I didnt ask if there was more communication
I asked specifically about the (f) requirement, which you have marked as OK. This is a commionly messed up area, where they give 28 days, or 29 days from date of issue, or 28 days frmo date of service, etc.
Yep thats 92f covered.
damn.
But, as pointed out - they singularly failed to describe the circumstances. Breach of Contract itself does not describe any CONDUCT givnig raise to the charge.
No, why would you? Thats language for council tickets, where the term has actual meaning
They just have failed to meet the conditions specified in POFA including but not limited to... and as such you,a s keeper cannot be held liable. You suggest they contact the driver. You are not required to name them, and will not be doing so, and no adverse inference or assumption can be made.
Agree, so what should I do then?
Macapaca has asked to follow appeal process to the end, but then ignore debt collection letters as this LCP seems to be a toothless tiger and they take very few cases to court.
I just told you not to use the words procedural... as this isnt a council ticket
I didnt say not to appeal
I told you how to appeal
Its not a difficult example to follow. You could search for BOGOFF as well.
"If, after a period of 28 days, (beginning with the day after this notice is given), the amount requested in this Notice has not been paid in full, (or we have not informed of the driver's name and current address) you, the registered keeper will, if the conditions set out in Schedule 4 of the Protection of Freedom Act 2012 are met, be liable to pay this unpaid Parking Charge"
I don't think it's nit-picking to argue that 9(2)(f) hasn't been met
POFA doesn't say that the registered keeper becomes liable for charge
Legal liability is the responsibility that someone has for their actions
If a keeper wasn't driving, he didn't commit the action
The liability therefore remains that of the driver
It's a thin argument that he becomes legally responsible for actions - failing to identify the driver - when he had no obligation to do so
What the PPC can acquire is a right to recover the driver's liability from the keeper (who may or may not be the registered keeper)
Parliament made the clear distinction when POFA 4(5) stated what the PPC could and could not recover
If the keeper actually became liable for the charge, he would also be liable for all the costs of collecting the charge
please confirm that I can use one or both of these points in my reps
c). describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
f). warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given
as pointed out, both can be used.
I wouldnt use te the MSE template for this.
There is no harm in using both points plus frustration of contract as suggested previously by Nosferatu. I would keep it simple on the lines of your draft rather than use one of the templates. I wouldn't agonise over it too much because LCP will reject it anyway and POPLA will probably adjudge that the PCN was correctly issued. Hence my previous advise that you should make it clear that you will not be paying LCP anything and then tough it out through the debt collection letter stage. They will pester you if they think you are a soft touch. The chances of them taking it to court are very slim.
That does not state frustratoin. Use the exact term, frustration of contract.
Hi again,
I have the rejection from LCP and code to appeal at POPLA.
I have 28 days from 10th of July to appeal at POPLA.
They have sent a bunch of stuff in the email: BPA code of practice, ANPR TariffBoard Entrance images, LCP Park Information, their reply and POPLA form in DOCX.
Well you wont use any form
Do what everyone does, create a word doc with embedded evidence in it. Save as PDF, and upload on the website under other. Easy.
Show us your draft when youve got it ready. Rejection was expected.
I don't think I have any evidence.
I you will lose the change to appeal to POPLA very soon.
Your evidence is to list the POFA failures, your belief that they dint have a contract and you want them to procve that they havfe an actual contract. Look aroound
Your POPLA appeal should use the same evidence that you have been discussing so far in this thread! Post your draft here so that you can get some feedback on presentation and wording.
You waited 3 weeks, wasting 3 weeks of your 28 days, to tell us nothing of any use?
Show us your appeal
today
It should be written now, and the evidence was given already. Get on with it!
Hi agian,
My apologies, but I was very busy last week and completely forgot to write this draft.
Wel you of coruse still dont state who the driver was....
You prove 1, by including copies of the NtK that omit these details. State that the requirements of POFA are strict and simple to follow, and a failure to include mandatory informaiton means they have failed to engage keeper liabilty, and a keeper appellant must succeed in this appeal.
Forfrustration - remember witness testimony IS evidence, so a witness statement (from an "occupant") PLUS anything you haveto show why the contract was frustrated (appointment overran could not leave etc)
Great, at POPLA should I select "Other grounds for appeal"? It says Appeals based solely on the following grounds for appeal are less likely to be successful.
Gah!
Yes you pick other
If you'd look3d into it, you'd have seen that popla has that written before they'd heard ANY APPEALS AT ALL
I think I am going to drop the frustration of contract bit because I am unable to get the witness statement on time.
I would still leave it in. It would be stronger with some evidence of course but still true without.
Leave it in.
LCP Parking has uploaded their evidence. I have 7 days to comment on their evidences.
Yes?
So the obvious way to comment would be to review your appeal, review their response, and note anything
- where they havent responded to the appeal point at all
- where their response is clearly inadequate i.e. you asked for unredacted contract but they gave a wintess statement
- where their response doesnt stack up e.g. the contract isnt signed, has run out, the signs arent of the site, etc.
Any points they have made with which you disagree. You must rebut everything. If you are silent, the point is deemed accepted.
I can see they have attached about 25 documents ~19MB in size.
I am going to add them here shortly.
Best regards,
https://ibb.co/ciba0z https://ibb.co/gM8Yne https://ibb.co/kM7hfz https://ibb.co/eBWm7e https://ibb.co/mzQqYK https://ibb.co/hJKZtK https://ibb.co/kX0w7e https://ibb.co/kRpZtK https://ibb.co/feNXfz
The standard PDF's from them are in ZIP archive: https://filebin.net/jp7umg70y2sm18t6
Thats all well and good
WHat have YOU dont to review them?
Using the suggestiosn we've given?
You need to STroNGLY rebut that "frustration of contract" is "mititgating"
It is not
It is a complete defence against payment under contract for breach of contradct.
They say that I can and I should pay at the parking machine for the time I have overstayed, but looking at all these signs I cannot see any information how to accomplish it. Calling them or paying over the web is out of question if the phone is not available.
Your time is up
Please show us your rebuttal.
Hi again,
My apologies but I was away.
This is the decision from POPLA I have received a couple of days ago.
Decision: Unsuccessful
Assessor summary of operator case: The operator has issued the Parking Charge Notice (PCN) as the motorist overstayed.
Assessor summary of your case: The appellant’s case is that the PCN fails to meet the obligations of Protection of Freedoms Act (POFA) 2012, Schedule 4, Section 9. The appellant also says there were unforeseen circumstances and frustration of contract. The appellant has provided a pdf document containing their appeal and a copy of the PCN.
Assessor supporting rational for decision
When parking on private land, it is the responsibility of the motorist to ensure they adhere to the terms and conditions of the car park. The operator has provided photographs of the signage explaining the terms and conditions, as displayed on signs throughout the site. The signage states: “24 HOUR PAY AND DISPLAY…MONDAY TO SUNDAY INCLUDING BANK HOLIDAYS…DAY RATE..Monday to Saturday 08:00 to 23:00…1 hr £2.00…4 hrs £8.00…A PARKING CHARGE NOTICE MAY BE ISSUED FOR:…NON PAYMENT IN LIEU OF PARKING TIME…BY PARKING YOU ACCEPT THE TERMS AND CONDITIONS…FAILURE TO COMPLY MAY RESULT IN A PARKING CHARGE OF £100”. The operator has provided images from the Automatic Number Plate Recognition (ANPR) system, which shows the appellant’s vehicle, LC04 YTW, entered the site at 14:45 and exited the site at 18:18 on 19 May 2018. A total stay of three hours and 33 minutes. The operator has provided a list of the payments it received at the site during the period the appellant parked. The list contains two payments of £2.00 for the appellant’s vehicle registration. The operator has issued the PCN as the motorist overstayed. The appellant’s case is that the PCN fails to meet the obligations of Protection of Freedoms Act (POFA) 2012, Schedule 4, Section 9. The appellant also says there were unforeseen circumstances and frustration of contract. As the driver has not been identified within the appeal to POPLA or to the operator, I need to ensure that the operator has shown strict compliance with the Protection of Freedoms Act (PoFA) 2012. PoFA 2012 is used to transfer liability from the driver of the vehicle to the keeper of the vehicle when the driver has not been identified. I have reviewed the Notice to Keeper and I am satisfied that the operator has shown strict compliance with PoFA 2012. As such, liability has been transferred to the keeper of the vehicle. When looking at appeals, POPLA considers whether a parking contract was formed and, if so, whether the motorist kept to the conditions of the contract. Even if a motorist presents mitigating circumstances setting out exceptional reasons why they did not keep to the parking conditions, POPLA cannot allow an appeal if a contract was formed and the motorist did not keep to the parking conditions. Ultimately, it is the responsibility of the motorist to ensure that when they enter private land, they have understood and complied with the terms and conditions displayed throughout the site. The signage at the site is sufficient to make motorists aware of how much they are required to pay. If the motorist was in disagreement with the terms and conditions of the site or felt that the terms and conditions of the site could not be complied with, there would have been sufficient time to leave the site without entering into a contract with the operator. By remaining on the car park, the motorist accepted the terms and conditions displayed throughout the car park and entered into a contract with the operator. The operator has demonstrated that the motorist paid for two hours of parking but stayed for three hours and 33 minutes. I conclude that the motorist breached the terms and conditions by overstaying the period they had paid for. As the operator has demonstrated that it issued the PCN correctly and that it has transferred liability of the PCN to the keeper, I must refuse this appeal.
They entirely ignored the Frustration of Contract issue
Procedural error by POPLA. Immediate complaint.
Should I email them based on what's on their website?
"Unhappy with our service POPLA
At POPLA we take complaints about our service very seriously. If you think that we have done something wrong please let us know so we have the chance to put things right quickly and effectively. Your complaint will help us learn from our mistakes and improve our service.
Sometimes the outcome of your appeal is not what you want to hear. Your appeal has independently been reviewed by a professional assessor taking into consideration the relevant law, regulatory rules, guidance and standards and the British Parking Association Code of Practice. You cannot challenge the outcome of your appeal with POPLA. Regardless, you should be satisfied with the level of service you have received free of charge from us. If you disagree with the outcome of your appeal, you will need to follow alternative routes.
We can only investigate complaints that involve allegations of poor service or performance, for example where we have:
treated you rudely;
failed to keep you updated on progress;
caused unnecessary delays;
failed to explain things properly; or
any other shortfall in service
If you have a complaint about the standard of service that we have provided, please send us an email to info@popla.co.uk "
I have emailed info@popla few days ago but no response so far.
Hve you searched for any other email addresses? Written a letter? Tried something to escalate this?
You could in the meantime state to the PPC you are disputing this decision as they have ignored that no charge can be payable due to frustration of contract. This is not mitigation, this is a reason it should not have been issued AND is a reason it is not payable. Until POPLA has acknowledged and dealt with your complaint, they must hold off any action on their end, as this is a clear procedural error (failing to deal with an appeal point) by POPLA.
Private Parking company
Pointless chasing the smae email address.
POPLA has just came back and they forwarded my complaint to complaints department for review.
So you literally stated "frustration of contract" and nothing more, despite being told waaaaay back to include the full details?
No wonder they rejected it as a valid point. Its not a silver bullet, you have to explain more.
You have the Witness Statement now yes?
In case they do court?
I have got a letter from ZZSP Limited, I think some debt collectors asking for £100 - charge + £70 of their admin fee.
If it is from debt collectors then completely ignore. They have absolutely no authority. Just keep an eye out for a LBC.
Yes
Always ignore ZZPS
I have received two more reminders from QDR Solicitors. How are these people?
QDR Solicitors are a wholly owned subsidiary of Wright Hassall LLP.
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