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FightBack Forums _ Private Parking Tickets & Clamping _ [NIP Wizard] Parking Overstay LBC

Posted by: Whyte Tue, 10 Sep 2019 - 18:47
Post #1514201

NIP Details and Circumstances
What is the name of the Constabulary? -
Date of the offence: - December 2018
Date of the NIP: - 6 days after the offence
Date you received the NIP: - 8 days after the offence
Location of offence (exact location as it appears on the NIP: important): - MIDDLEWAY RETAIL PARK, BURTON (CAR PARK 2)
Was the NIP addressed to you? - Yes
Was the NIP sent by first class post, second class or recorded delivery? - Not known
If your are not the Registered Keeper, what is your relationship to the vehicle? -
How many current points do you have? - 0
Provide a description of events (if you know what happened) telling us as much about the incident as possible - some things that may seem trivial to you may be important, so don't leave anything out. Please do not post personal details for obvious reasons - The parking at this address is mostly 4 hours but there is a small section of 2 hour parking by the gym. Not knowing this the driver accidentally overstayed the 2 hours by 18 minutes being in the gym the entire time.
After speaking with the gym manager he could not help and advised to ignore the PCN. He did provide a printout of the gym clockout time which was 3 minutes prior to the vehicle exit timestamp on the PCN.

I the vehicle keeper have so far ignored all communication from Smart Parking, DRP, Zenith and now Gladstones Solicitors. After doing some reading here I realise this was not the best course of action. Today I received a LBC and thought I should get some advice.
I think I am too late to complete a POPLA appeal (?) but there is mention on the LBC of a PAP


NIP Wizard Responses
These were the responses used by the Wizard to arrive at its recommendation:
Have you received a NIP? - Yes
Are you the Registered Keeper of the vehicle concerned (is your name and address on the V5/V5C)? - Yes
Did the first NIP arrive within 14 days? - Yes
Although you are the Registered Keeper, were you also the keeper of the vehicle concerned (the person normally responsible for it) at the time of the alleged offence? - Yes
Were you driving? -
Which country did the alleged offence take place in? - England

NIP Wizard Recommendation
Based on these responses the Wizard suggested that this course of action should be considered:


Generated by the PePiPoo NIP Wizard v3.3.2: Tue, 10 Sep 2019 18:47:57 +0000

Posted by: BaggieBoy Tue, 10 Sep 2019 - 18:50
Post #1514202

Needs to be in the Private Parking forum, press the REPORT button and ask a moderator to move it.

Posted by: ostell Tue, 10 Sep 2019 - 20:10
Post #1514218

Post up the first notice you received, suitably redacted but leave dates.

If you threw everything away then a SAR request to Smart to request all they hold about you.

Edit your post so the identify of the driver cannot be inferred. Use " the driver........."etc

Posted by: Whyte Wed, 11 Sep 2019 - 17:27
Post #1514527

Thanks ostell, luckily i kept everything.

https://imageshack.com/i/pnFhT9Guj

Original post edited also

Posted by: ostell Wed, 11 Sep 2019 - 19:59
Post #1514570

This should have done the trick if you weren't at this stage

Dear Sirs,

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.

Yours etc

Write to the solicitors pointing out that their client has failed to comply with multiple requirements of POFA to be able to hold you, the keeper, liable and any claim would be bound to fail.

List out all the POFA fails to make them aware. Copy the letter to Smart as well as they normally give up when they know they have got it wrong

They are only pursuing because there has been no response and they hope they will get a default win.

Posted by: Whyte Tue, 17 Sep 2019 - 18:09
Post #1516026

QUOTE (ostell @ Wed, 11 Sep 2019 - 20:59) *
List out all the POFA fails to make them aware.

Thanks again Ostell
Do you have any more info to get me started on the other POFA fails? Struggling to find what else to include in my letter

Also my LBC mentions 'the PAP', can I ignore this for now and just send the letters you mention?

Posted by: Redivi Tue, 17 Sep 2019 - 18:23
Post #1516030

You've received a Letter Before Claim in accordance with PAP so your reply must be in accordance with PAP

You tick Box D that you dispute the debt and reword the Ostell letter as one of the reasons

I don't understand what the restriction is where the car was parked

Two hours limit when the limit everywhere else is four hours ?
Four hours limit for gym members but two hours for everyone else ?

Posted by: Whyte Tue, 17 Sep 2019 - 18:30
Post #1516034

QUOTE (Redivi @ Tue, 17 Sep 2019 - 19:23) *
You tick Box D that you dispute the debt and reword the Ostell letter as one of the reasons

Ok I'll have a look at doing that, cheers


QUOTE (Redivi @ Tue, 17 Sep 2019 - 19:23) *
I don't understand what the restriction is where the car was parked

Two hours limit when the limit everywhere else is four hours ?
Four hours limit for gym members but two hours for everyone else ?

About 3/4 of the overall carpark is 4 hour parking. This small quarter by the gym is only 2 hours which I did not know and also assumed was 4 hours

Posted by: Redivi Tue, 17 Sep 2019 - 22:30
Post #1516122

Then you include the signage as another reason to dispute the debt

Gladstones has no idea what the dispute is about and won't see any of Smart's documents until after it's issued the claim and learnt a month later that it's been defended

UNLESS

You also tick Box I: I need further documents and information

This is the opportunity to request copies of all the documents and pictures that Smart intends to rely on including a copy of its contract with the Land-owner
You can also ask some questions about the basis for the demand - is it a contract or trespass? - and evidence for the additional charges

This request alone will wipe out Gladstones' profit on the deal

Here's a link to the form
You don't fill in the financial information
That's only for if you admit the debt but want time to pay

https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/protocols/debt-pap.pdf

Posted by: The Rookie Wed, 18 Sep 2019 - 09:14
Post #1516195

These are the PoFA requirements (Protection of Freedoms Act 2012, schedule 4 Paragraph 9 - applies when there is no windscreen 'notice to driver')
ALL MUST be present and correct.
I'll bet there is no period of parking as it's actually an impossibility to work out, they presumably have photos of the car passing an ANPR camera while not parked.

QUOTE
The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
©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;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i)specify the date on which the notice is sent (where it is sent by post) or given (in any other case).

Posted by: Whyte Thu, 19 Sep 2019 - 17:36
Post #1516679

Thanks for the help guys. Just to confirm this is what I'm sending:

- PAP reply form, Box D and Box I ticked
- A few photos showing parking signage stating up to 4 hours stay free
- The following pages:

BOX D
I dispute the debt based on Notice to Keeper xxxxx for vehicle VRM xxxx, as the carpark in question at xxxx contains multiple signs designating 4 hour parking from entry voiding any overstay allegation of the vehicle. I have attached photos of this signage separately.

Additionally, Smart Parking LTD have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to:
- Failing to specify period of parking as per Paragraph 9, (a) of the Act
- Failing to give notice of keeper liability as prescribed by schedule 4, Paragraph 9, (f) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.
There is no legal requirement to name the driver at the time and I will not be doing so.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.


BOX I
I need a copy of all the documents and pictures that Smart Parking LTD intends to rely on including a copy of its contract with the Land-owner.
I need confirmed the basis of the charge whether it is contractual or trespass. I also require evidence for the additional charges not relating to the £100 originally claimed.


Not sure I need that last sentence in Block D. Let me know if theres anything I got wrong or need to add

Posted by: The Rookie Fri, 20 Sep 2019 - 05:48
Post #1516765

Keep that last sentence in, that's important as Gallstones never get anything from the parking company unless it actually ends in a court hearing, so they won't reply and you can wave that in court as to how unreasonable they are.

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