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Euro Parking Services, Appeal rejection letter & letter before action
Mr.Brown058
post Wed, 17 Jan 2018 - 23:14
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Hi all,
I am seeking advise on how best to proceed.
I have received a final reminder for payment of a parking charge for Euro Parking Services (EPS) however this is the first communication I have had from them.
I am the registered hirer of the vehicle and have not responded yet.
The final reminder letter does not state the date of the incident however they show pictures of the vehicle manoeuvring & leaving the car park these were taken by a car park attendant working for EPS as the driver remembered the incident.
The driver of the vehicle at the time honestly parked in the car park, went to a cash machine and then entered the Lidl store to purchase some milk. On returning to the car the driver was approached by an EPS employee saying as they left the premises they would receive a PCN in the post. The driver of the vehicle stating they were a customer and showed the attendant the receipt got in the car and drove off.
the pictures on the letter show the vehicle and driver driving off.
The time stamps on the pictures are shown 8secs apart. The driver has given me the receipt from that day however the time stamps on the pictures show the vehicle leaving 3 minutes before the receipt was issued.
I have contacted Lidl who's response is the usual, we are not the land owner it is between you and the Car park company.
EPS have also claimed that the 21 day period has now lapsed for an appeal but mention exceptional circumstances for appealing outside the 21days.
I have contacted the lease company who confirmed they received the notice to keeper on the 20th of December 17 , 20days (should be 14 days under POFA) after the incident and only gave my details as the hirer to EPS on the 27th. I received the final reminder ( My 1st communication) on the 17th Jan. exactly 21days after EPS got my details from the Lease company.


I have not received a notice to hirer and I am unsure if to proceed using the POFA notice to Hirer failings they will just say they sent it previously and generate one meeting all the requirements. I am unsure of any further evidence they have but clearly the time stamps differ slightly from the receipt on the day. Do I proceed using the IPC Code of Practice Section 15 'Grace periods as the pictures shown do not show the car parked, however the driver was there for about 25 minutes ,well within the contract


I have also asked the Lease company to see if they can give me any evidence of what they actually sent to EPS as this would allow me to use the POFA route.

Any help greatly appreciated





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post Wed, 17 Jan 2018 - 23:14
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Churchmouse
post Sun, 11 Feb 2018 - 10:17
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What did the signs actually say? Was it "parking only for customers" or "parking only for customers whilst on the premises"/"driver must not leave site"? I have parked at my local Lidl, done my shopping and left the site to grab lunch (returning within the permitted 90 minutes), but I did so only after reading the restrictions and finding that they did not preclude such activities. This Lidl apparently does not control the car park, so the signage may indeed be different. It might be useful to know what the alleged contract actually said.

--Churchmouse
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Mr.Brown058
post Sun, 11 Feb 2018 - 13:48
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QUOTE (Churchmouse @ Sun, 11 Feb 2018 - 10:17) *
What did the signs actually say? Was it "parking only for customers" or "parking only for customers whilst on the premises"/"driver must not leave site"? I have parked at my local Lidl, done my shopping and left the site to grab lunch (returning within the permitted 90 minutes), but I did so only after reading the restrictions and finding that they did not preclude such activities. This Lidl apparently does not control the car park, so the signage may indeed be different. It might be useful to know what the alleged contract actually said.

--Churchmouse






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Mr.Brown058
post Sun, 11 Feb 2018 - 14:21
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QUOTE
It's not strictly Letter Before Claim but I would write back to them just in case.


Thanks Ostell

This post has been edited by Mr.Brown058: Sun, 11 Feb 2018 - 14:21
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Churchmouse
post Sun, 11 Feb 2018 - 22:44
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QUOTE (Mr.Brown058 @ Sun, 11 Feb 2018 - 13:48) *

So, according to the signage, the driver had to remain on the premises, and the driver had to be a customer of Lidl. That's clear, and assuming the cash machine referred to in the first post is off-site, they observed the driver leaving the site. Sorry, no "get out of jail free card" there, so back to the usual procedures...

--Churchmouse
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anon45
post Mon, 12 Feb 2018 - 09:24
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I would argue that there is no 'commercial justification' for charging £100 to legitimate customers who very briefly cross the road to visit a cash machine to obtain cash to shop with Lidl on site, such that the charge is a penalty which is not saved by Beavis.
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Redivi
post Mon, 12 Feb 2018 - 09:38
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I agree

There is no commercial justification, land-owner or public interest in such a charge

Lidl clearly didn't perform a lot of due diligence before they appointed Euro to harass their customers

If they had, they might have asked its owner why four of his other parking companies had been dissolved or struck off the register

This post has been edited by Redivi: Mon, 12 Feb 2018 - 09:39
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Churchmouse
post Mon, 12 Feb 2018 - 23:06
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QUOTE (anon45 @ Mon, 12 Feb 2018 - 09:24) *
I would argue that there is no 'commercial justification' for charging £100 to legitimate customers who very briefly cross the road to visit a cash machine to obtain cash to shop with Lidl on site, such that the charge is a penalty which is not saved by Beavis.

There are indeed many arguments one could make. I was just saying that the easy one I had hoped for wasn't going to be as easy as it would have been had the language on the sign been different. The tried-and-true approach is probably the best way to deal with this one.

--Churchmouse
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Mr.Brown058
post Wed, 7 Nov 2018 - 00:20
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Hi all, back again, sorry.
I have now received a County Court Claim form, & it's Gladstones
Having Responded as Ostell advised back in Feb this year ( see below) I heard nothing until today with this county court form.

QUOTE (ostell @ Sun, 11 Feb 2018 - 09:54) *
It's not strictly Letter Before Claim but I would write back to them just in case.


In response to your Letter Before Court Action dated XX/XX/XXXX

I note that you are asking for a response within 14 days when the current Pre Action Protocol for Debt requires at least 30 days. I cannot find paragraphs 13 - 16 that you have referenced, the last paragraph in the current protocol is numbered 8.2. Would you please submit a Letter before Court Action that conforms to the current requirements. With this letter I require a copy of all the documents that you will be using to show that the alleged debt actually exists.

I note in your rejection of my appeal dated 7th February that you have singularly ignored my statements about the fact that you have failed to comply with the requirements of Schedule 4 of the Protection of Freedoms Act 2012, in particular, but not limited to, Paragraphs 14 (2) (a) and as such I cannot be held liable as the Keeper/Hirer for the actions of the driver at the time.

As you have already been told there is no legal requirement to name the driver at the time and I would not be doing so.

The driver has confirmed to me that there was no breach of your conditions and has in his possession a receipt from a store on site, timed a few minutes after the time stamp on your photos.

I will not be appealing to your "Independent" Appeals Service as this is run under the auspices of your trade association, which in itself is controlled by the same people who control your solicitors, Gladstones, despite the attempts at Companies House to obfuscate these "minor" details.

Further to my request for documents above I will require from you at least the following:

* The Notice to Keeper to the hire company.
* The Notice to Hirer to myself.
* A copy of the contract you hold with the landholder showing your rights to act. A witness statement saying that a contract exists will be insufficient.
* A map that was available on site showing the limits of the site.
* The statement from your operative about the alleged breach.


I await your response and a properly formatted letter before claim.


POFA paragraph 13 is about the actions between the parking company and the hire company. You cannot possibly be privy to what happened between them.


The official date of service is the 07/11/18 so I will acknowledge the claim first.

This is what I have so far.

1) EPS have failed to follow POFA 2012 schedule 4 para 14 & therefore cannot hold me liable as the Hirer.
I never received a notice to hirer, or the a copy of the docs mentioned in para 13(2) & NTK required under the above.

2) The first communication I had from them ( a final reminder dated 06/12/17) was sent 15/01/18 (post mark on envelope), to which I appealed in writing (within 10 days) posted to them 25/01/18.
I received their rejection letter dated 07/02/18 giving me 28 days to pay or giving me 21 days to appeal to the IAS ( I declined their appeal service).
I then received a letter before claim dated 08/02/18 ( dated 1 day after their rejection letter) to which I responded as per above.

3) I also have had an email from the lease company confirming they passed liability to me on the 27/12/17 after receiving the NTK on the 21/12/17 (alleged incident was 30/11/17)
They posted the final reminder to me 19 days after receiving my details from Lease company.
Some how the final reminder (1st communication I had) gives me 28 days form the 06/12/17 ( 7 days after the alleged incident) to pay yet they did not receive my details until the 27/12/17.


So in summary,
A) They failed to comply with the relevant parts of the POFA 2012 Schedule 4.
B) They have issued a final reminder letter before they had a response from the lease company.
C) They have gave me the option for an IAS appeal while almost at the same time issued a Letter before Court Action.
D) They have failed to provide me with the documents I requested in my response to their Letter before Court Action.



Any help, advice etc very much appreciated



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ostell
post Wed, 7 Nov 2018 - 08:26
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So you have multiple failures of POFA, spell them out.
The first is the failure to deliver the NTK with 14 days to the hire compnay
The second is the failure to provide the documents.
Lots of bits of 14 (5) mot correctly stated or missing, especially the warning at 14 (5) ©
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nosferatu1001
post Wed, 7 Nov 2018 - 12:46
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Also attack signage, standing etc. Not just one point, but many

Post two, newbies thread, MSE parking forum

Once acknowledged ONLINE you have 28 days from date of service for the court to receive your signed, emailed pdf defence.
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Mr.Brown058
post Thu, 8 Nov 2018 - 23:49
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Thanks very much.
I'll read up a bit for a few days and post my response prior to submitting.
I've obtained a Copy of the original NTK from the lease company which offers the discount if paid within the 14days.
Yet In their first communication with me, even if considered a Notice to hirer the discount is not offered.
So my question is did they have to offer the same as in the NTK to me, if so, failing to make me aware is another breach of the POFA.?
Also is it advisable to use this copy of the NTK I obtained myself from the lease company as proof of the discount existing in the first place.
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nosferatu1001
post Fri, 9 Nov 2018 - 07:41
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Post your formal, final and ONLY defnce you mean wink.gif

Just to get across that this isnt something trivial. Its a formal process.

The NtH does not have to offer the discount. Ignore it.
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Mr.Brown058
post Yesterday, 00:55
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Ok, this is what I have.

DEFENCE
________________________________________
1. The Defendant denies that the Claimant is entitled to relief in the sum claimed, or at all
.
2. The facts are that the vehicle, registration <REG>, of which the Defendant is the registered keeper/hirer, was pictured in the car park at <LOCATION> on the xx/xx/2017.

3. The particulars of claim do not meet the requirements of Practice Direction 16 7.5. Indeed, the particulars of claim are not clear and concise as is required by CPR 16.4 1(a).

3.1. The Particulars of Claim contains no details and fails to establish a cause of action
which would enable the Defendant to prepare a specific defence.
The Particulars state, “The driver of the vehicle registration XXXXXXX (the 'Vehicle) incurred the parking charge(s) on XX/XX/XXXX for breaching the terms of parking on the land at XXXXXXX. The Defendant was driving the Vehicle and/or is the Keeper of the Vehicle. AND THE CLAIMANT CLAIMS £160 for Parking Charges / Damages and indemnity costs if applicable, together with interest of £8.39 pursuant to s69 of the County Courts Act 1984 at 8% pa, continuing to Judgment at £0.04 per day” , which does not give any indication of on what basis the claim is brought.
There is no information regarding why the charge arose, what the original charge
was, what the alleged contract was nor anything which could be considered a fair
exchange of information. The Defendant requested all this information in a letter dated xx/xx/xxxx.
The Particulars of Claim are incompetent in disclosing no cause of action.
As a result of the lack of particulars, the defendant has, on the xx/11/2018 submitted a Subject Access Request by email to both the Claimant and to their solicitors requesting all data, highlighting the urgency required in order to form a reasonable defence in this case. The defendant still has had no response from either upon submitting this defence.

3.1.1. On the 20th September 2016 another relevant poorly pleaded private parking
charge claim by Gladstones was struck out by District Judge Cross of St
Albans County Court without a hearing due to their ‘roboclaim’ particulars being
incoherent, failing to comply with CPR. 16.4 and ‘providing no facts that could
give rise to any apparent claim in law.’
3.1.2. On the 27th July 2016 DJ Anson sitting at Preston County Court ruled that the very
similar parking charge particulars of claim were deficient and failing to meet CPR 16.4
and PD 16 paragraphs 7.3 – 7.6. He ordered the Claimant in that case to file new
particulars which they failed to do and so the court confirmed that the claim be
struck out.
4. The Claimant has provided no evidence (in pre-action correspondence or otherwise) that the Defendant was the driver as the particulars state “the defendant was driving the vehicle and or/ is the registered keeper of the vehicle” .The Defendant asserts that the Claimant is therefore limited to pursuing the keeper in these proceedings under the provisions set out by statute in the Protection of Freedoms Act 2012 ("POFA").
4.1 The Claimant has failed to comply with POFA 2012 schedule 4 para 14.2 (a) to provide me with a ‘notice to hirer’ & copies of required documents as per para 13.2. and therefore, cannot hold the defendant liable for the charge.
“13.2
(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
©a copy of a statement of liability signed by the hirer under that hire agreement.”

The claimant failed to respond to a request by letter dated xx/xx/xxxx for a copy of the original ‘notice to hire’ along with proof of sending.
The claimant is put to proof that it has the required documents in its possession and that those documents were served on the defendant within the relative times required to allow them to rely on the POFA 2012 to hold the registered keeper/hirer liable.
4.2 The claimant also failed to comply with the POFA 2012 schedule 4 para 4 & 5 by failing to deliver the original notice to keeper (NTK) within the relevant time period.
(4) The notice must be given by—
(a)handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or
(b)sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
The Defendant has an email from the hire company confirming they received the original NTK 21 days after the alleged charge was incurred.

5.The claimant is not the lawful occupier of the land. The defendant holds a reasonable belief that they do not have the authority to issue charges on this land in their own name and that they have no rights to bring action regarding this claim. Proof of such authority was previously requested by the defendant dated xx/xx/xxxx in a letter to which the claimant failed to reply.

5.1. The Claimant is not the landowner and is merely an agent acting on behalf of the landowner and has failed to demonstrate their legal standing to form a contract.
5.2. The claimant is not the landowner and suffers no loss whatsoever as a result of a vehicle parking at the location in question
5.3 The Claimant is put to proof that it has sufficient interest in the land or that there are specific terms in its contract to bring an action on its own behalf. As a third-party agent, the Claimant may not pursue any charge.
5.4 Even if the claimant has the legal standing to form a contract, the defendant asserts the claimant has suffered no loss for the alleged breach of terms and conditions as the Driver of the vehicle has passed to the defendant a receipt confirming they were customers at the time and therefore had a genuine reason for being on site.

6. In the Particulars there is an add-on for purported 'legal representative's costs' of £50 on top of the vague £60, artificially hiking the sum. This would be more than double recovery, being vague and disingenuous. Such costs are not permitted (CPR 27.14)
The Claimant, as a member of the IPC accredited operator scheme, has failed to comply with the IPC code of practice Part B 6.2.
“6.2 If an appeal is unsuccessful then you must notify the appellant, at the same time you reject their appeal, that they have the right to further appeal to the IAS and you must allow them a further 21 days to pay the charge or to exercise this right of appeal. During this period, you may not add on any additional fees for non-payment.”
The Claimant failed to allow the defendant the required 21 days as they issued a ‘Letter Before Court Action’ one day after the letter of appeal rejection while adding £60 to the charge.

7. Non-Complaint inadequate signage.
The Sign at the entrance to the car park is positioned near a pedestrian crossing thus drawing motorist’s attention away from the sign indicating private land. The IPC code of practice, to which the claimant is a member states in Part E Schedule 1:
“Entrance Signs should:
a) Make it clear that the motorist is entering onto private land”

8. The Claimant has not complied with the pre-court protocol para 5.

The defendant in a letter dated xx/02/2018 in response to the claimants ‘letter before court action’ requested a copy of all documents that show the alleged debt exists and has yet to receive a response.
There can be no reasonable excuse for the Claimant's failure to follow the Pre-
action Conduct process, especially bearing in mind that this Claim was issued by their
own Solicitors so they clearly had legal advice before issuing proceedings.
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ostell
post Yesterday, 09:42
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4.2 The claimant also failed to comply with the POFA 2012 schedule 4 para 9 (4) & (5)

I would be inclined not to ask that they produce the hire documents etc. Just leave it that they didn't send them to you
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