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Parking Eye - Mistyped reg - POPLA Appeal not upheld - advice requested
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post Wed, 13 Sep 2017 - 11:33
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Only just found this forum. Unfortunately the driver is already quite some way down the track in terms of appeal. Nonetheless, perhaps someone here can offer some insight/suggestions please.
I've read the FAQs and threads. I've also read up a little on some case histories such as Beavis, Cargius and Heggie.

Here's the sequence of events...
1. Driver picked up courtesy car while own car being repaired. Driver signed paperwork from courtesy car company stating that driver would be liable for parking fines and admin fees.
2. Driver parked courtesy car in Parking Eye Car Park which uses ANPR. The car park offers 30 mins free parking, charges apply thereafter. (For info, the driver had previously used the car park on an infrequent basis, and still has a valid ticket from parking their own vehicle 4 months prior).
3. Driver entered reg number in machine, paid for parking to cover 1 hour, displayed ticket in windscreen.
4. Driver returned within the paid for period and left car park.
5. Courtesy car returned a couple of days later. Parking ticket was in vehicle and was also returned.
6. PE contact courtesy car company who pass driver details to PE.
7. Courtesy car company write to driver with invoice for £54 admin fees relating to their handling of the PCN.
8. Driver advises courtesy car company that there will be no payment to them at this time.
9. Approx 5 weeks after the alleged parking offence PE contact driver with Parking Charge Notice of £100 for "not purchasing the appropriate parking or parking without a valid permit in accordance with the terms and conditions set out in the signage". The PCN has photos of the courtesy car entering and leaving the car park. Time in car park is stated as 57 minutes.
10. Driver immediately writes to PE Appeals Department setting out the circumstances (courtesy car, clearly remembered purchasing 1 hour ticket, entered reg details from key fob). Driver begins to think that it could be that they may have mistyped the unfamiliar car reg into the parking machine, so in the letter to PE the driver specifically requests PE to furnish details of all number plates entering the car park around the same time period.
11. PE respond to driver asking for valid parking ticket or PayByPhone transaction details. The number plate details that the driver requested are not provided by PE, nor is there even any acknowledgement of the driver's request in PE's letter.
12. Drivers writes in response to PE pointing out that the driver no longer has the ticket (and why) and that the number plate information requested previously by the driver has not been furnished by PE. Driver repeats the request for PE to provide number plate information in and out of the car park during the period in question with associated times.
13. PE write to driver stating that the appeal has been unsuccessful: "Our records confirm that no parking was purchased on the date of the parking despite there being payment methods available on the day in question". PE again fail to acknowledge the repeated request by the driver for number plate records, let alone provide the information requested. PE provide POPLA code.
14. Driver calls POPLA to get a better understanding of the Appeal process and stating that PE have not provided the number plate info requested. POPLA assure driver that they will request this of PE as part of the Appeals process.
15. Driver submits online appeal to POPLA. This includes a quite detailed response on the “operator evidence” and a further request for the number plate information. The comments made on the operator evidence included:
- Sufficient parking was purchased, and for a period in excess of the time parked
- PE have repeated failed to provide the number plate info and has thus failed to provide the full, necessary and sufficient evidence of all records to justify their reason for rejection beyond reasonable doubt
- The driver has not set out to deliberately enter wrong information into the parking machine nor to deprive PE of revenue. PE has suffered no loss. This appears to have been genuine human error
- It is the driver’s assertion that the parking machine log records should show that a payment was made for a vehicle that does not appear in the ANPR records on that day.
- Mention made of PE v Heggie case. (Many forum contributors will know that this case was upheld in Heggie’s favour: Heggie mistyped the number plate and PE provided records that showed Mr Heggie had typed in number plate details that were different to the vehicle parked). Driver therefore believed PE would furnish similar information on the basis they had done so previously. Driver believes PE have been unreasonable in not providing this information, as this may have enabled the issue to have been resolved earlier without the need for PE’s litigious approach.
- The operator allowed the “erroneous” payment transaction to proceed without any warning to the driver. PE could easily have matched ANPR records versus payment machine details to detect discrepancies. It’s reasonable to assume that the payment was associated with the correct vehicle and that as the prescribed fee was offered by the driver and accepted by the payment machine that there was no breach of contract.
- Ambiguous terms & conditions and parking contract – with specific reference by the driver to the three different types of sign provided in the “Operator Evidence”. The driver feels there are strong grounds to challenge whether a valid contract was ever actually formed at law.
- PE’s operator evidence also has typos and human error, so it’s unfair to punish the driver’s possible human error when the claimant is equally culpable.
- On the balance of probabilities, the driver has paid the correct fee for a vehicle occupying the space that the vehicle in the ANPR photo occupied and PE has suffered no loss.
16. POPLA uphold PE’s case that the driver has exceeded the permitted free stay without making a payment. The response states that PE’s T&C’s in the car park clearly state that “motorists must enter their full correct vehicle registration when using the machine”. POPLA’s response continues “The whitelist lookup provided confirmed no valid payment was registered to the appellant’s vehicle. The PCN was issued correctly”. I note that in the motorist’s comments to the operator’s case file he has questioned the clarity of the signage. However, the motorists comments are to comment on the operator’s case file and not an opportunity to raise new grounds appeal and as such, I have not considered it.”
17. PE send driver “letter before County Court Claim” setting out additional costs for solicitor and court (totalling £75) that will be added to the £100 PCN. Much mention made of the Beavis case that PE won.
18. Driver does not respond to letter. Feels that evidence requested was not provided. Admits possible human error (though this can’t categorically be known as the evidence that only PE hold has not been furnished). Driver also feels POPLA’s investigation not thorough enough – it did not address all points raised by the driver and has deliberately dismissed some - and has failed to apply common sense in its judgement. The driver does not believe that it’s fair or moral – and indeed may be discriminatory (against anyone who is dyslexic for example) to demand that the correct registration be entered and that there be no grounds for appeal on the basis of genuine human error. Driver feels there was no point in trying to “negotiate” with PE now as PE are not contactable by phone and PE have already clearly ignored the driver’s requests for information and are unlikely to change their approach.
19. Driver receives County Court Business centre claim form for £175.
20. Driver calls the courtesy car company to see the key fob. The car was no longer on their fleet. However the courtesy car company did say that “to improve accuracy” they no longer have the handwritten key fobs that were in place at the time of the incident.
21. Driver calls BPA who tell the driver that their Code of practice does not govern payment machines!
22. Driver incensed that common sense would have resolved the situation without the need for time-wasting appeals and litigation. Driver feels POPLA process was just a game. The real issue here is what is moral, decent, fair and honest. Driver responds online to County Court with Acknowledgement of Service and stating that the driver will dispute the claim in full. A defence is due to be submitted within 14 days. The driver intends to act as Litigant in Person – given the small claim amount involved the driver currently feels it would be inappropriate to oil the legal wheels for a simple day-to-day matter that should have long since been easily resolved and where the driver has made every effort to do so.

Sorry – all this is ever so wordy, but I hope helpful.
Any comments and/or suggestions on a defence would be appreciated.
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post Wed, 13 Sep 2017 - 11:33
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ostell
post Wed, 13 Sep 2017 - 12:01
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So have you told PE who was driving? Simple Yes or No.

You are the keeper of the car. PE cannot possibly know who was driving unless you told them, some editing of your initial post may be needed.

Did you get some additional paperwork with the Notice to Hirer from PE? ie did they comply with POFA 14 (2) (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" If you have outed the driver then this is irrelevant.

This post has been edited by ostell: Wed, 13 Sep 2017 - 12:03
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hexaflexagon
post Wed, 13 Sep 2017 - 12:55
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In addition, exactly what does the contract with the hirer say?
You mention 'parking fine' but terminology is important here. You have received a parking charge, not a parking fine which would be issued by a statutory authority and result in a magistrates court action for non payment. If the hirer has limited their hire contract to 'fines' they can't pursue you for some alleged contractual breach.

Assuming the hire contract only mentions fine write to them requesting they cancel their invoice, and if they refuse and take the money from your credit card contact your card issuer and start a dispute procedure with them.

This post has been edited by hexaflexagon: Wed, 13 Sep 2017 - 12:55
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reg-number
post Thu, 14 Sep 2017 - 08:04
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@ostell - thank you for your response.

QUOTE (ostell @ Wed, 13 Sep 2017 - 13:01) *
So have you told PE who was driving? Simple Yes or No.


Yes. This was perhaps implicit in item 10 where the driver wrote to PE - sorry for not making it explicit.

QUOTE (ostell @ Wed, 13 Sep 2017 - 13:01) *
You are the keeper of the car. PE cannot possibly know who was driving unless you told them, some editing of your initial post may be needed.


I've written the post to comply with the guidance on this forum in so far as possible as yesterday was the first time I've posted. I am not the keeper of the car, nor the driver. I post here on behalf of the driver who is quite upset about the whole matter. I am trying to help the driver with a defence.

As far as I am aware - please correct me if I'm wrong - the keeper of the car here is the courtesy car company (i.e. the repair shop). The driver is not the keeper here.

QUOTE (ostell @ Wed, 13 Sep 2017 - 13:01) *
Did you get some additional paperwork with the Notice to Hirer from PE? ie did they comply with POFA 14 (2) (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" If you have outed the driver then this is irrelevant.


Procedurally, all looks correct as far as I can see. A PCN was issued to the owner (the car lease company). When they responded to PE, the PCN was issued to the keeper (the repair shop). When they responded to PE the PCN was issued to the driver using the person details that the repair shop had provided to PE.

The repair shop - along with their invoice for admin - provided the driver with a copy of the PCN in the repair shop's name and a copy of the Courtesy Car Disclaimer form that the driver had signed when picking up the courtesy car.

PE - as part of the POPLA submission - have provided the driver with an audit trail of PCNs issued in different names. The person who picked up the free courtesy car, and signed for it, was the driver of the car at the time of the alleged offence. The PCN that the driver received from PE arrived 36 days after the alleged offence.



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reg-number
post Thu, 14 Sep 2017 - 08:28
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@hexaflexagon - thank you for your post


QUOTE (hexaflexagon @ Wed, 13 Sep 2017 - 13:55) *
In addition, exactly what does the contract with the hirer say?
You mention 'parking fine' but terminology is important here. You have received a parking charge, not a parking fine which would be issued by a statutory authority and result in a magistrates court action for non payment. If the hirer has limited their hire contract to 'fines' they can't pursue you for some alleged contractual breach.

Assuming the hire contract only mentions fine write to them requesting they cancel their invoice, and if they refuse and take the money from your credit card contact your card issuer and start a dispute procedure with them.


The driver has signed a "Courtesy Car Disclaimer" and "Courtesy Car Indemnity Sheet". The former sets out the terms under which the repair shop provided the courtesy car. The latter relates to the courtesy car's condition (e..g. diagrams of damage at time out/in). I believe that together these form the "hire contract" you refer to.

Regarding specific wording, the most relevant looking parts of the 11 sections on the Courtesy Car Disclaimer state:
"1. You are responsible for ALL parking, speeding, bus lane fines or any other traffic relating offences/incidents, including but not limited to charges issued under the Traffic Management Act 2004 or Regulations made under it."
"2. Please ensure you give the CORRECT registration of our courtesy car when paying any charges, disputing any fines or when transferring our vehicle onto your Congestion/Dart account. Always obtain a receipt as proof"
"3. On any outstanding fines, we will add an admin fee of £25 plus VAT to each fine. The leasing company will also apply an admin fee for the transfer of liability".

The invoice provided to the driver by the repair company does not have a payment due date, nor have they taken the admin fee as a credit card payment (although the driver did provide credit card details at time of pick-up). There was no fee for the "hire" as such.

My untrained eye suggests all is above board as far as the repair shop contract is concerned - hence why we went down the POPLA Appeal route. That said, I'd certainly welcome your thoughts based on the information provided. Please let me know if you need more details.

Presumably, as we are now at the stage of drafting a defence in response to a Claim Form from the County Court, there's nothing to stop us making a different (or extended) defence (if need be) to the one that wasn't upheld by POPLA?
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nosferatu1001
post Thu, 14 Sep 2017 - 08:36
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Youre wrong. The keeper of the car is the person in day to day control of the car. Same as a garage becomes the Keeper of your car when you leave your car with them for repair, you are the keeper of a car you hire.

1) Does not cover speculative invoices issued by private firms. CRA2015 means that it must be interpreted in the way most favourable to the consumer. As they specified "fines", "offences" and "traffic incidents", this does not cover an invoice.

Did PARKING EYE suoply a copy of the hire agreement? Yes or No.

We need to know exactly what was said to PE initially. If the DRIVER was stated, then POFA is irrelevant.
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ostell
post Thu, 14 Sep 2017 - 09:25
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Can you confirm that there are 3 entities involved here: A company that owns the car and leases it out, the repair company that has the car as a courtesy car and the customer who has use of the car while their own is being repaired. It was a little bit unclear in what you were saying.

The registered keeper is the entity that has their name registered with the DVLA. The initial PCN would go to the lease company who then give details of the hirer. The PCN is then sent to the hirer together with the items details in POFA paragraph 14 (2) (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;

The repair shop should then have responded to PE stating that the car was hired out and give details of the hirer. The eventual hirer, the repair shop customer, should then receive their very own copy of a PCN together with the documents outlined above.

If the repair shop got their PCN without the docs then they should just write back to PE saying that they have failed to comply with POFA and therefore there is no claim against them.

Similarly if the customer doesn't have the required docs then they respond in the same way.

Get you friend to come on here themselves so that information is not going through a third party.
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hexaflexagon
post Thu, 14 Sep 2017 - 09:28
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QUOTE (reg-number @ Thu, 14 Sep 2017 - 09:28) *
@hexaflexagon - thank you for your post



The driver has signed a "Courtesy Car Disclaimer" and "Courtesy Car Indemnity Sheet". The former sets out the terms under which the repair shop provided the courtesy car. The latter relates to the courtesy car's condition (e..g. diagrams of damage at time out/in). I believe that together these form the "hire contract" you refer to.

Regarding specific wording, the most relevant looking parts of the 11 sections on the Courtesy Car Disclaimer state:
"1. You are responsible for ALL parking, speeding, bus lane fines or any other traffic relating offences/incidents, including but not limited to charges issued under the Traffic Management Act 2004 or Regulations made under it."
"2. Please ensure you give the CORRECT registration of our courtesy car when paying any charges, disputing any fines or when transferring our vehicle onto your Congestion/Dart account. Always obtain a receipt as proof"
"3. On any outstanding fines, we will add an admin fee of £25 plus VAT to each fine. The leasing company will also apply an admin fee for the transfer of liability".

The invoice provided to the driver by the repair company does not have a payment due date, nor have they taken the admin fee as a credit card payment (although the driver did provide credit card details at time of pick-up). There was no fee for the "hire" as such.

My untrained eye suggests all is above board as far as the repair shop contract is concerned - hence why we went down the POPLA Appeal route. That said, I'd certainly welcome your thoughts based on the information provided. Please let me know if you need more details.

Presumably, as we are now at the stage of drafting a defence in response to a Claim Form from the County Court, there's nothing to stop us making a different (or extended) defence (if need be) to the one that wasn't upheld by POPLA?


Usual up front caveat. I am not a lawyer and this is my understanding so wait for other comments from more learned posters here.

Yes the Courtesy car disclaimer document is the basis of the hire contract.
As always the meaning of words as well as sentence structure is vital. Usually parliamentary legislation takes great trouble to define terms used in legislation, and often common law contracts do the same. This is for the avoidance of doubt. Where a word or phrase is not specifically defined and open to interpretation the Courts look to the ordinary English meaning of the words.

Here in 1 above the word 'fines' follows a list of "parking, speeding, bus lane" and it's my belief that the word fines is meant to qualify each of those words. The point has already been made that the word 'fines' relates to a statutory offence and what we have here is a charge notice, i.e. a civil law alleged contractual offence. Therefore there is no 'Parking fine' here.

The statement that you are liable for any fines is, in isolation, perfectly true but nevertheless the hire company are relying on item 3 which only mentions fines, not charges and there can be no outstanding fine since no fine exists. They don't say explicitly, but are implicitly saying that if you don't pay a fine we will pass the fine on. They could have just as easily have added words that included parking charges in this definition. From their point of view that's unfortunate for them but doesn't alter the basic fact that youj don't have a fine.

Then we come to the attempted catch all of 'All traffic related offences/incidents...' Here again there is no definition of the word 'traffic' in the document so we look to the ordinary English dictionary definition of the word. This is variously described as 'vehicles moving on a public highway', 'the number of vehicles moving along roads', and other slight variations. All containing the idea of movement as opposed to being parked.
In addition the government document overview of Traffic Management Act 2004 says
QUOTE
"This act was introduced to tackle congestion and disruption on the road network. The TMA places a duty on local authorities to make sure traffic moves freely and quickly on their roads and the roads of nearby authorities. "


The word 'traffic' in the phrase 'all traffic related offences / incidents' clearly qualifies and restricts the list of offences and incidents only to those relating to 'traffic', or in other words 'moving vehicles'.

For the reasons above I believe you can reasonably argue that your hire contract does not allow the hirer to recover monies related to parking charges, only fines .

Yes, in your defence to the County Court claim you are not restricted to the arguments you made in the POPLA appeal. You'll probably want to use those as well as others that have come along since but if any of them are irrelevant or subsequently found to be inaccurate then don't use them.

My 2ps worth.
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reg-number
post Thu, 14 Sep 2017 - 09:35
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QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 09:36) *
Youre wrong. The keeper of the car is the person in day to day control of the car. Same as a garage becomes the Keeper of your car when you leave your car with them for repair, you are the keeper of a car you hire.


Thank you for clarifying that in this case the driver is the keeper.


QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 09:36) *
1) Does not cover speculative invoices issued by private firms. CRA2015 means that it must be interpreted in the way most favourable to the consumer. As they specified "fines", "offences" and "traffic incidents", this does not cover an invoice.


Sorry - my fault I'm sure - but I haven't quite understood your point. Surely the repair shop's invoice is just the means by which they are asking for payment for an alleged offence that was committed by a driver of their vehicle who agreed to be responsible for payment in relation to the types of offences listed in 1. I don't see it as "speculative" per se - but that might just be my interpretation of what you mean by "speculative". Obviously the driver hasn't paid it - as per item 8 in the original post - and won't be paying it unless or until the parking offence was proven against the driver and unless or until it was proved that the driver has a legal obligation to pay it.

Are you saying that the repair shop has no right to issue an invoice, irrespective of the signed courtesy car disclaimer? Clearly their timing is way premature - given the PCN is still in dispute - but what is it specifically that would make their request for payment invalid if it is found that the PCN is valid?


QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 09:36) *
Did PARKING EYE suoply a copy of the hire agreement? Yes or No.


My interpretation of your question leads me to give the answer No, but let me clarify as I'm not sure what you mean by supply or to whom. The "hire agreement" - and contract for the courtesy car - was between the driver and the repair shop and was provided to the driver by the repair shop. In their POPLA submission, PE submitted 60+ pages of info, i.e. ANPR photos, car park signage etc as well as all correspondence they'd had with the leasing company and repair shop. This submission included a copy of the Courtesy Car Disclaimer that the driver had signed when picking up the courtesy car from the repair shop. The repair shop had passed this to PE - as part of item 6 of my original post.

QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 09:36) *
We need to know exactly what was said to PE initially. If the DRIVER was stated, then POFA is irrelevant.


The repair shop appealed to PE stating that the courtesy car was on hire to ME. I am the owner of the car being repaired for which a courtesy car was made available. I did not however pick up the courtesy car - the driver who committed the subsequent alleged parking offence picked up the car and signed the Courtesy Car Disclaimer. The driver and I are well known to each other.

The repair shop wrote to PE stating that the courtesy car was collected by a nominated driver on my behalf. This nominated driver is the driver in the alleged parking offence. The repair shop provided my name and that of the driver to PE.

The driver wrote to PE in response to the PCN. They identified themselves as the driver, confirmed it was a courtesy car, confirmed they had paid for parking and asked for a print out of number plate details entered into the parking machine around the time of car park entry.
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hexaflexagon
post Thu, 14 Sep 2017 - 09:54
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QUOTE (reg-number @ Thu, 14 Sep 2017 - 10:35) *
Are you saying that the repair shop has no right to issue an invoice, irrespective of the signed courtesy car disclaimer? Clearly their timing is way premature - given the PCN is still in dispute - but what is it specifically that would make their request for payment invalid if it is found that the PCN is valid?


It matters not whether the PCN is valid or invalid nor whether the driver/keeper is eventually successful in court or not. The hire contract and what is due or not due is a completely separate matter to any court matter.

As has been explained their hire contract only permits them to recover fines not charges [this thread passim].
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nosferatu1001
post Thu, 14 Sep 2017 - 10:24
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THe Keeper of the vehicle - the person hiring it - is NOT NECESSARILY the driver!

Parking Eye were required under POFA, when the Notice to Hirer was given tot he person hiring the vehicle, to supply a copy of the hire agreement alongside the Notice to Hirer. WE do not care whether this was given to POPLA, all that matters is that it was sent to the HIRER at the time, WAY before POPLA. If no copy of the hire agreement was given then the hirer is NOT LIABLE - only the driver. And they dont know the name of the driver unless YOU tell them!

However, as the driver outed themselves, its irrelevant. POFA only deals with hirers and keepers, not drivers.

The PCN from PE is purely a specualtive invoice. THere was no offence, there is no fine, just an invoice. The invoice from the garage relates not to an "offence" as you persist in calling simply an alleged civil infraction of parking rules. Item 1 in their contract to allow them to charge this invoice has not been invoked, therefore they cannot issue such an invoice - or rather have no claim should it reach court, as thats the only place this can be decided by a third party.

Theres a good chance PE would prevail in court. However the garage is unlikely to.
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reg-number
post Thu, 14 Sep 2017 - 11:01
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QUOTE (ostell @ Thu, 14 Sep 2017 - 10:25) *
Get you friend to come on here themselves so that information is not going through a third party.


The driver is very stressed and upset by all this, but is determined to see justice. The driver is a bit more than a "friend" to me. To keep within the guidelines of the forum - e.g. please use "driver" and not "I", "she" etc, I deliberately have not been explicit and perhaps in trying to stick to the forum rules that has caused confusion.

I know this case inside out. I have responded to PE and POPLA on her behalf (and with her input, consent and signature), dealt with the courtesy car company and am now dealing with the Claim Form from the Company Court. I have been reading up on case law and I know what has happened in this case intimately. Obviously I was not there when the alleged parking offence was committed but the driver has given me a full account. I have contacted Citizens Advice, pursued legal advice under an insurance policy and through membership of a national car breakdown membership organisation. Trust me - I know the sequence of events and hold all the correspondence. Any perceived lack of clarity/info on my part isn't down to lack of understanding or being a "third party" - and I'm happy to answer additional questions to help you to help me help the driver. I also have more time than the driver to manage the case.


QUOTE (ostell @ Thu, 14 Sep 2017 - 10:25) *
Can you confirm that there are 3 entities involved here: A company that owns the car and leases it out, the repair company that has the car as a courtesy car and the customer who has use of the car while their own is being repaired. It was a little bit unclear in what you were saying.


Sorry for any confusion I may have caused. My subsequent responses to other posts may give this information. Sadly, forums are never a true "conference-type discussion" and are more like a sequence of 1:1 phone calls! Anyway, there are arguably multiple entities/roles:
1. The owner of the car being repaired
2. The repair car company
3. The company that owns the car and leased it to the repair car company
4. The person who picked up the courtesy car from the repair car company
5. The person who signed the Courtesy Car Disclaimer form at the repair car company offices
6. The driver who parked the car and committed the alleged offence.
7. The landowner who owns the land on which the vehicle was parked
8. The company that manages the parking on that land with the landowner's approval (Parking Eye).

In this case, I am entity number 1 and the driver is entities 4,5 & 6

QUOTE (ostell @ Thu, 14 Sep 2017 - 10:25) *
The registered keeper is the entity that has their name registered with the DVLA. The initial PCN would go to the lease company who then give details of the hirer. The PCN is then sent to the hirer together with the items details in POFA paragraph 14 (2) (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;

The repair shop should then have responded to PE stating that the car was hired out and give details of the hirer. The eventual hirer, the repair shop customer, should then receive their very own copy of a PCN together with the documents outlined above.

If the repair shop got their PCN without the docs then they should just write back to PE saying that they have failed to comply with POFA and therefore there is no claim against them.

Similarly if the customer doesn't have the required docs then they respond in the same way.


The sequence of events is as you state and ties up with my original post and subsequent posts. Everyone probably has the right docs and I can't see anything wrong in the order that things have been done. There may be some debate and a technical argument - see separate post in this thread - as to whether the repair shop had the right to transfer liability to the driver. Equally some debate about T&C.s, parking contract etc.

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nosferatu1001
post Thu, 14 Sep 2017 - 11:12
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The driver is *always* liable. POFA simply allows PE, in this case, to hold the hire company, or hirer or other keeper at the time liable. So you dont quite know the law inside out!

Your sole defence is that parking was paid for, and possibly the machine recorded the reg incorrectly or was typed incorrectly. Therefore this is an unconscionable increase in charge, given the fee was paid for, for a trivial error - one easily prevented if PE used machines that tied reg input to teh ANPR captured cars, as in other car parks. There is no justification here for such a penalty, certainly no commercial justification, and as such the Penalty rule still applies. BEavis actually helps your case here.

Did you get PE to provide you or POPLA willa full, unredacted list of payments made that day? From ALL machines? If you didnt, why not?

Show us your defence as it currently stands.

The garage charging for passing details on is a separate matter.
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reg-number
post Thu, 14 Sep 2017 - 11:27
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QUOTE (hexaflexagon @ Thu, 14 Sep 2017 - 10:54) *
As has been explained their hire contract only permits them to recover fines not charges


I am not a legal person, and I can see that there are forum posters here who seem to know the ins and outs of PCNs for which I'm grateful.

I tend to take "fine" in its literal sense or in common usage, e.g. I got a parking fine from the traffic warden.

Clearly there are language subtleties here that I have yet to understand when it comes to forming legal arguments!

In item 1 of the repair car company's courtesy car agreement that I transcribed earlier it makes reference to "parking... fines", "other traffic relating offences" and "charges under the Traffic management Act 2004 or Regulations made under it".

Does this mean charge (as in fees/demands) or charge as is (accusations)? Consequently, I must admit that as a layman I really don't see how the wording of the contract therefore permits them to only recover fines.

Please help if you can - but please bear in mind that I am a first-time poster, not au fait with jargon and that although one person may feel they have explained something that that may not feel like an explanation to the person to whom it has been given.

Many thanks.
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nosferatu1001
post Thu, 14 Sep 2017 - 11:42
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Its not a difficult distinction

A fine is issued by a court or e.g. a traffic warden. It cannot be issued by a private parking company. they can only send invoices.

Charges under the TMA means fines under the TMA. TMA is what decriminalised parking enforcement and put it into the hands of councils.

Its simple. They must be specific when saying what they will charge you for. They HAVE BEEN SPECIFIC - and limited themselves ONLY to real, actual fines. Meaning nothing else is permitted. A speculative invoice (thats all a PE PCN is! We've said it often enough!) is not covered.
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reg-number
post Thu, 14 Sep 2017 - 12:22
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QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 12:12) *
The driver is *always* liable. POFA simply allows PE, in this case, to hold the hire company, or hirer or other keeper at the time liable. So you dont quite know the law inside out!


Not sure if the "you don't quite know the law inside out" was directed at me? If it was then you're right! - otherwise I wouldn't be seeking advice. I did state earlier that I know the CASE inside out - i.e. I am fully familiar with all the documentation and arguments to date as far as the specific PCN is concerned as I have been dealing wit the matter on the driver's behalf.

QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 12:12) *
Your sole defence is that parking was paid for, and possibly the machine recorded the reg incorrectly or was typed incorrectly. Therefore this is an unconscionable increase in charge, given the fee was paid for, for a trivial error - one easily prevented if PE used machines that tied reg input to teh ANPR captured cars, as in other car parks. There is no justification here for such a penalty, certainly no commercial justification, and as such the Penalty rule still applies. BEavis actually helps your case here.


Thank you. Our unsuccessful appeal to POPLA pretty much covered what you state even to the point of saying that PE should validate each payment-machine-entered reg number against its ANPR records. The reality is they don't. POPLA's response was the Terms & Conditions clearly state that the exact reg number must be entered correctly and the driver had not done so.

Can you explain further what you mean by "Penalty rule" and "Beavis actually helps my case"? I note other posters such as @hexaflexagon make a point of using "charges" as opposed to "penalties" and "fines" so I'm trying to reconcile the seeming differences in what different people are saying.

There certainly was no actual loss to Parking Eye in this instance. I thought (probably wrongly) that the PE v Beavis case was about the amount of charge and that the Supreme Court ruled that £100 was not excessive, so I'm unsure how I could use Beavis in my argument? But I'm grateful for any wording that could assist.

QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 12:12) *
Did you get PE to provide you or POPLA willa full, unredacted list of payments made that day? From ALL machines? If you didnt, why not?

In their initial response to PE, the driver asked PE for such a list.
In their subsequent response to the driver PE did NOT provide the information, nor did they even acknowledge the request.
The driver wrote to them again making the same request.
PE responded to say the driver had lost their appeal to them. Once again PE failed to provide the info or even acknowledge the request.
Before the appeal was made to POPLA, the driver called POPLA to explain that PE had not provided the evidence requested. POPLA said not to worry, PE had no obligation to do so but that they (POPLA) would ask for this as part of an appeal to them.
The driver submitted the POPLA appeal online, specifically stating that the evidence from payment machines was required but had not still been furnished by PE.
The info was never provided. PE merely furnished a 'white list' - a blank piece of paper that showed they did not get a payment for the reg number in the ANPR.
POPLA rejected the appeal.

For info, there were many points raised in the appeal by the driver in direct response to the operator's evidence (such as images of their car park signs etc). But POPLA's final response dismissed all arguments on signage etc. saying "we have not considered these as the motorist must comment on the operator's case file and not raise new grounds for appeal".

The driver and I have found the whole process unsatisfactory on so many levels, hence the driver's desire to fully contest the claim.

QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 12:12) *
Show us your defence as it currently stands.

The defence for the POPLA appeal ran to four A4 pages. The key points were that:
- Sufficient parking was paid for.
- PE has suffered no loss
- The burden of proof rests with the operator and PE has failed to provide the payment machine reg details requested despite ample opporutnity
- Parallels with PE v Heggie case
- Ambiguous terms & conditions and Parking contract
- Machine accepted payment so reasonable to assume that payment was associated with the correct vehicle and that the parking contract was fine

You state that we only have one defence so its perhaps pointless me cutting and pasting here the defence made to POPLA. (We have yet to draft a defence for the court submission - but were intending to use/amend the POPLA submission plus whatever else is gleaned through this forum). The defence made to POPLA refers specifically in many places to operator evidence on specific pages of the operator's submission, so there may be limited value in publishing this without the photographic context. Once I gather all views the driver may be happy to share what I have.

QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 12:12) *
The garage charging for passing details on is a separate matter.

Noted
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reg-number
post Thu, 14 Sep 2017 - 17:26
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QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 09:36) *
Youre wrong. The keeper of the car is the person in day to day control of the car. Same as a garage becomes the Keeper of your car when you leave your car with them for repair, you are the keeper of a car you hire.


Sorry to revisit this @nosferatu1001, and not wishing to split hairs, but am I the keeper or is the driver the keeper of the courtesy car?!

I ask because it was my car that was being repaired and in lieu of which I got the courtesy car. In fact the repair company has written to me with an invoice for admin charges relating to the PCN (given they transferred liability). And when the repair company contacted PE they wrote: "the (courtesy) vehicle was collected by a nominated driver <driver's name> on behalf of <my name>".
I never signed any hire agreement, but the driver did (by signing the Courtesy car Disclaimer).

Just curious if this has any implications.

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hexaflexagon
post Thu, 14 Sep 2017 - 21:47
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QUOTE (reg-number @ Thu, 14 Sep 2017 - 18:26) *
QUOTE (nosferatu1001 @ Thu, 14 Sep 2017 - 09:36) *
Youre wrong. The keeper of the car is the person in day to day control of the car. Same as a garage becomes the Keeper of your car when you leave your car with them for repair, you are the keeper of a car you hire.


Sorry to revisit this @nosferatu1001, and not wishing to split hairs, but am I the keeper or is the driver the keeper of the courtesy car?!

I ask because it was my car that was being repaired and in lieu of which I got the courtesy car. In fact the repair company has written to me with an invoice for admin charges relating to the PCN (given they transferred liability). And when the repair company contacted PE they wrote: "the (courtesy) vehicle was collected by a nominated driver <driver's name> on behalf of <my name>".
I never signed any hire agreement, but the driver did (by signing the Courtesy car Disclaimer).

Just curious if this has any implications.


It's important to recognise that you have two completely different questions/matters being discussed here.
1. The receipt of an invoice described as a PCN for an alleged parking offence which is now the subject of a County Court Action
2. An Invoice from a car hire company which is wanting to charge you an admin fee for passing your details to the PPC.

You need to keep these separate in your mind.

As far as 1 is concerned POFA defines the keeper as
QUOTE
“keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper;


It seems to me re 2 that it's somewhat academic since the term 'keeper' doesn't enter the equation. Even if it did what matters is who has signed the hire contract and accepted the terms of the contract - one of which is seemingly to reimburse the hire company for administering claims for fines (not charges - see earlier discusssion). Here it's the driver who has signed the hire contract
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nosferatu1001
post Fri, 15 Sep 2017 - 12:44
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You need to look into BEAVIS

Supreme Court case that pe won.

However it required that in order for the £85 to njot be a "penalty" but a charge that the company could levy , very strict conditions had to be met. Otherwise the "penalty rule" - that civil contracts in English law CANNOT penalise either party - would remain engaged. Essentially the amount is a penal charge i.e. Not recoverable UNLESS they can show the conditions apply.

In that case the judges at appeal and Supreme Court both stated that a pay and display car park is fairly simple nad the same conditions s didn't apply as in the free car park in the BEAVIS case which was more complex.

You will of course attack the usual issues of standing, signage in the defence, however the main defence is that parking was paid for, and the relatively minor error of the driver OR the MACHINE recording it correctly does NOT justify such a penalty being applied.
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reg-number
post Fri, 15 Sep 2017 - 12:56
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QUOTE (nosferatu1001 @ Fri, 15 Sep 2017 - 13:44) *
You need to look into BEAVIS

Supreme Court case that pe won.

However it required that in order for the £85 to njot be a "penalty" but a charge that the company could levy , very strict conditions had to be met. Otherwise the "penalty rule" - that civil contracts in English law CANNOT penalise either party - would remain engaged. Essentially the amount is a penal charge i.e. Not recoverable UNLESS they can show the conditions apply.

In that case the judges at appeal and Supreme Court both stated that a pay and display car park is fairly simple nad the same conditions s didn't apply as in the free car park in the BEAVIS case which was more complex.

You will of course attack the usual issues of standing, signage in the defence, however the main defence is that parking was paid for, and the relatively minor error of the driver OR the MACHINE recording it correctly does NOT justify such a penalty being applied.


Thank you for your further input @nosferatu1001 inckuding coming back to me on the "penalty rule" argument.

As per the first line in my original post, Beavis is just one of the cases I have looked at. Given the length of the ruling, versus my limited time to date to read it in depth, there is clearly more scope for me to delve into it in more detail and look for relevant arguments, bearing in mind that the circumstances of parking in the driver's case and charging model of the car park are not the same as in Beavis. Thanks again.
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