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PCN -- I think I will live to regret ignoring this
baldmosher
post Mon, 11 Mar 2019 - 14:02
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In Dec 2018, I received a PCN from ParkingEye, relating to a "free" customer car park, in which the vehicle remained for 56 minutes. The terms of parking are (fairly) clearly displayed on signage at the site (albeit the detailed terms signs are positioned well above eye height, and arguably subtly positioned & coloured so you might miss them), but they outline as follows:
* up to 40 mins free parking for customers (NB: this point is very clearly displayed on the way into the car park)
* up to 4 hours free parking for customers if you register your registration number on the terminal in the store (only visible on the signs above eye height)
* £100 charge for failing to comply with the terms (only visible on the signs above eye height)

When the initial letter arrived, asking for £60 early payment, and quoting Beavis as usual, I decided not to appeal. Mainly because I could have sworn the letter said "the driver must pay or appeal the charge" so I didn't do either, as I wasn't the driver, and the photos provided made it impossible for me to identify the driver.

Eventually after a couple of reminders ParkingEye sent me a letter of claim for £100.

I wrote back to them at that point to contest the charge, with the standard internet clauses, on the grounds that:
* I was not the driver and therefore didn't enter into a contract
* £100 is not a genuine pre-estimate of loss

They've replied to me along with a FAQ rebutting all the usual arguments from the standard internet letter, and rejected my defence on the grounds that:
* after 28 days without them receiving an appeal, responsibility for the debt automatically transfers from the driver who made the contract to the registered keeper, and they've quoted the relevant Act that states this to be the case -- I had no idea this was the law! If it is, I assume I have no case to argue and need to pay the £100.
* they believe £100 is a perfectly reasonable charge -- I argued that as Beavis was £85, and this is a completely free car park for 4 hours if you register and don't overstay therefore no loss occurred, and I feel this is purely a punitive charge, but the Supreme Court apparently disagrees with me.

With hindsight, I regret that decision not to appeal in January.

Can anyone confirm whether I'm bang to rights here, or if there's anywhere I can go from here?

One thing I have thought about is that if they can provide clearer photos and therefore I can identify the driver, and the driver can demonstrate that they were unavoidably curtailed, and that was the reason for them overstaying by 16 minutes rather than entering their registration for another 3 free hours, that might be solid grounds for appeal, but as I can't identify the driver, I've missed the appeal window.

This post has been edited by baldmosher: Mon, 11 Mar 2019 - 14:04


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post Mon, 11 Mar 2019 - 14:02
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Jlc
post Mon, 11 Mar 2019 - 14:59
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GPEOL is generally dead - it can be argued in some circumstances but Beavis will generally be applied.

First things first - they can pursue the keeper for the driver's unpaid parking charge. The Protections of Freedoms Act allows for this but only if they comply. Did the notice first received make reference to 'keeper liability'?


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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ostell
post Tue, 12 Mar 2019 - 09:03
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Here's a link to POFA. Of particular relevance to your case is paragraph 9.

To hold you liable they have to fully comply with POFA, and unfortunately PE usually get it correct.

Have you tried contacting the store that was being visited and complaining?

This post has been edited by ostell: Tue, 12 Mar 2019 - 09:09
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baldmosher
post Tue, 12 Mar 2019 - 09:26
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When I first read it, I thought it didn't. When I read it again, after their letter of claim, I think it did mention it, I just misread the text.

I'll copy out the exact wording this week, in case it's somehow not clear enough in the text.

(I don't want to go down the court route, unless I've got a solid defence case in the first place.)

QUOTE (ostell @ Tue, 12 Mar 2019 - 09:03) *
Have you tried contacting the store that was being visited and complaining?

I've not -- why do you think that makes a difference?


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Jlc
post Tue, 12 Mar 2019 - 09:44
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QUOTE (baldmosher @ Tue, 12 Mar 2019 - 09:26) *
I've not -- why do you think that makes a difference?

Some stores don't like their customers sued - it's not good for business...

But many will say it's too late to intervene now.


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RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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ostell
post Tue, 12 Mar 2019 - 18:45
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Quite often a NTK looks as though it complies but it actually does not. See this frequently. Post up the NTK, suitably redacted, but leave dates
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baldmosher
post Tue, 19 Mar 2019 - 14:42
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Photos of letters received, redacted, I haven't left dates because I don't think that it's relevant, but I can provide if it'll be useful:

https://photos.app.goo.gl/Fq542k3s7TemMFz38

1. PCN sent 5 days after alleged contravention
Makes reference to the PFA guidance about registered keeper. This is the only time the obligations of the Act are mentioned clearly in correspondence.

2. PCN Reminder sent 7 days after PCN
Makes NO reference to the PFA. Only states that "if you were the driver at the time of the parking event you are required to pay or appeal the parking charge."

3. Letter sent 28 days after PCN
Notifies me that ParkingEye is entitled to claim the unpaid charge from me, which is my obligation under the PFA. Refers again to Beavis stating that the [£85] charge upheld by the Supreme Court justifies this charge [of £100].

4. Letter Before County Court Claim received 14 days later.

5. I replied to the LBCCC letter on 18th Feb (not attached, but I can attach the letter if useful), making two points in my defence:
-i- I was not the driver and therefore did not enter into the contract.
-ii- Not a GPEoL, and I further pointed out that the primary obligation was to enter the car's registration number into a terminal to obtain 4 hours free parking (the vehicle stayed for only 56 minutes but with no number entered in the terminal). With hindsight, I think that GPEoL is no longer a valid defence, but the fact the £100 charge is for staying 56 mins in a max. 4 hour free car park is my main bugbear on principle with the fairness of this charge.

6. Response to my letter received 14 days later
This included a FAQ which would have been very useful had I received it in the first letter, so I could decide whether I needed to appeal.

FURTHER....
I checked the evidence online and it's just another copy of the awful quality b&w photographs of the vehicle. I am still able to send an "appeal" online so I'm considering following up with this:

QUOTE
WITHOUT PREJUDICE

Further to my letter of 18th February 2019, sent in response to your Letter before Claim, dated 12th February 2019.

I was not the driver and therefore did not enter into a contract with the landowner or ParkingEye.

I did not respond to your initial letters, because I was unaware of the legal obligation (paragraph 9(2)(b) of schedule 4 of the PFA 2012) for the Registered Keeper to be eligible for unpaid parking charges. This was not mentioned in the letter sent to me on 3rd January 2019, which stated simply that "if you were the driver at the time of the parking event you are required to pay or appeal the parking charge." As I was not the driver, I therefore felt no obligation to pay or appeal. Your subsequent letter of 28th January makes no reference to my obligations as the registered keeper, only that the registered keeper has now become legally eligible for the charge. Your subsequent Letter before Claim of 12th February mentions the Act only in stating that its requirements have been "satisfied". Your subsequent letter of 5th March 2019 includes a FAQ addendum, with clear information about the obligations of the registered keeper under the Act.

I do not accept that this charge has been issued fairly, given that, according to your letter of 3rd January, the opportunity to appeal is accorded only to the driver. I was not provided with enough information in your letters or in the evidence online to be able to identify the driver, and therefore was unable to obtain evidence for an appeal. I am unable to identify the driver from the images provided online, and therefore I am unable to respond to your letters regarding this £100 penalty charge with accurate information in good faith, nor can I obtain any accurate information from the driver about the events at the times on the letter.

I do not accept that you have provided sufficient information for me to understand my obligations clearly under paragraph 9(2)(b) of schedule 4 of the PFA 2012.

I do not accept that the £100 charge is justified. By entering the registration correctly in a terminal, the driver would be permitted to stay 3 hours longer without this charge. I am unable to ask the driver why they did not do this because I cannot identify the driver. If I were the driver, I would have entered my details correctly, because I am the registered keeper and I know the registration number. It is plausible that the driver forgot to do this, or that they did so in good faith but made a mistake on entry.


I am also (I think) quite willing to pay a reduced charge, given that I'm legally obliged to pay it, and as far as I can see, my arguments are weak in law.

This post has been edited by baldmosher: Tue, 19 Mar 2019 - 14:55


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emergencychimp
post Tue, 19 Mar 2019 - 14:54
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Isn't there something about a grace period at the beginning and end of period of parking? I mean, the camera logged you at 56 minutes but I doubt you were parked for 56 minutes. 10 mins each each end to allow for finding a space and leaving. 36 mins of parking.

This post has been edited by emergencychimp: Tue, 19 Mar 2019 - 14:55
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baldmosher
post Tue, 19 Mar 2019 - 21:49
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There's an industry guideline of 10 mins grace (in total) to allow for that to happen. They (apparently) won't (can't?) send a charge if you stay within the grace period. (I can't remember the exact guidance.)

This post has been edited by baldmosher: Tue, 19 Mar 2019 - 21:50


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baldmosher
post Wed, 8 Jan 2020 - 20:27
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Just to update this.

It went as far as Court meditation for £100+£70 costs. (It might still go to court, but I doubt it. Their own defence evidence contradicted their statements.)

I gladly offered -- again -- to pay the reduced £60 charge, as all I wanted was for Parking Eye to stop sending misleading letters and to provide all the relevant information up front. The mediator suggested that normally, you'd offer a bit more. So I offered £80 to split the difference.

They declined, because of the "extra costs" they'd incurred because of their own problematic letter sending, and their refusal to mitigate after I sent the letter above pointing this out. I'd offered to pay the £60, and they said in their court documents that I'd "refused to pay the reduced fee", even though their own evidence (letter reply to above) clearly contradicted that statement. They asked me to pay £150 to avoid court.

I told the mediator I'd gladly see them in court because the costs were caused by them, not me, and I didn't think the judge/magistrate would see perjury as a positive.

I'm still waiting.

To be clear, though: I got lucky but I made a good defence case. I reckon it's probably been about ten hours work for me, so in instances like this, I'd recommend just paying the reduced amount in future.... YMMV of course.

This post has been edited by baldmosher: Wed, 8 Jan 2020 - 20:29


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Jlc
post Wed, 8 Jan 2020 - 20:34
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Well done to sticking to your guns!


--------------------
RK=Registered Keeper, OP=Original Poster (You!), CoFP=Conditional Offer of Fixed Penalty, NtK=Notice to Keeper, NtD=Notice to Driver
PoFA=Protection of Freedoms Act, SAC=Safety Awareness Course, NIP=Notice of Intended Prosecution, ADR=Alternative Dispute Resolution
PPC=Private Parking Company, LBCCC=Letter Before County Court Claim, PII=Personally Identifiable Information, SAR=Subject Access Request

Private Parking - remember, they just want your money and will say almost anything to get it.
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The Rookie
post Thu, 9 Jan 2020 - 09:36
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QUOTE (baldmosher @ Wed, 8 Jan 2020 - 20:27) *
Their own defence evidence contradicted their statements.)
.

Presumably you mean claimants evidence?


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nosferatu1001
post Thu, 9 Jan 2020 - 10:59
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Yep, presumably Claimant.
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