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Letter before claim - old VCS PCN
idaho
post Mon, 24 Feb 2020 - 21:18
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Hi,

I have received a letter before claim from ELMS Legal representing VCS and wondering how best to proceed.

The original PCN was from 2016 at the Flora Street car park in Sheffield. The car was parked in what looked like a normal park of the car park, between 2 other cars in a group of about 10. When the driver returned to the car there was a ticket on the windscreen (of all the cars in this area) for parking in a restricted area (not sure of the exact wording as I no longer have the original PCN and haven't got a photo of the front of it - just the rear). VCS state that the area where the car was parked is restricted but there are no markings or signage to directly indicate this.

I used Private Parking Appeals to contest the charge and, despite a few emails to them, heard nothing back from them. Since I heard nothing about the PCN either way I assumed it had been resolved.

The original PCN was £100 (£60 if pay early). The new claim is £160 and if it goes to court £160 + £12 interest (estimated 8%), £50 court fees, £50 solicitors costs. Grand total £272.

What is my best course of action to appeal/challenge this?

Thanks in advance.
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post Mon, 24 Feb 2020 - 21:18
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nosferatu1001
post Tue, 25 Feb 2020 - 07:38
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Why are you wondering? There is only ONE route here when youhave a LBC
1) Letttr denying the debt, with reasons, back to the solicitor in this case. State you are SEEKING DEBT ADVICE and require them to restrict processing for at least 30 days
2) SAR to the parking company


3) PPA are a sham org and you really shoul dnot have used them. Money wasted
4) The £60 they added is unlawful. Dozens of threads about this.
5) You dont "appeal" a LBC, you deny the debt.
6) You dont have hte paperwork? really? Thats foolish. Well thats what the SAR is for. as the drivers identity revealed? Yes or no. You know the answer, we dont.
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idaho
post Tue, 25 Feb 2020 - 20:29
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Thanks for the list. Its basically what I thought I needed to do but it's good to get it confirmed.

Yeah, I've sort of figured out the PPA are not that much use - not an expensive lesson to learn but annoying!

Driver's identity not revealed so I assume that opens PoFA options?

Cheers
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ostell
post Tue, 25 Feb 2020 - 20:46
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QUOTE (idaho @ Tue, 25 Feb 2020 - 20:29) *
Yeah, I've sort of figured out the PPA are not that much use - not an expensive lesson to learn but annoying!


Could be expensive with court but may have been avoided if you had handled it yourself with the aid of the forum
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nosferatu1001
post Wed, 26 Feb 2020 - 09:12
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Yes, of course it opens POFA options.
Hence why you send a SAR.
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idaho
post Sun, 1 Mar 2020 - 09:54
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SAR sent.

Letter to ELMS legal denying the debt with reasons (not marked as restricted area and signage inadequate to allow driver to enter into contract) Stated that I am seeking debt advise (thanks Nosferatu) and got it put on hold for 30 days.

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idaho
post Thu, 2 Apr 2020 - 15:20
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Hi,

I've got my SAR back from VCS. No surprises in it but it has raised a POFA query in my mind which I hoped that someone would be able to clarify.

There was no notice to driver left on the windscreen (VCS say that they don't ticket windscreens) but the driver did speak to the the VCS employee who was taking photographs and said that the car (and the 10 or so others with the car had all been ticketed). No paperwork PCN or notice to driver was offered.

This was on the 4/12. The NTK arrived on the 13/12. My understanding is that under POFA the NTK must not be server earlier than 28 days after. The point I'm unsure of is is that 28 days after the alleged contravention or after the notice to driver? If the latter, how does POFA apply if there was no written notice to driver or does the VCS employee stating (on VCS record - shown by SARs) that the 'vehicle acknowledged the pcn' count as an official notice to driver.

Thanks for the clarification.

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Jlc
post Thu, 2 Apr 2020 - 17:21
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QUOTE (idaho @ Thu, 2 Apr 2020 - 16:20) *
This was on the 4/12. The NTK arrived on the 13/12. My understanding is that under POFA the NTK must not be server earlier than 28 days after. The point I'm unsure of is is that 28 days after the alleged contravention or after the notice to driver? If the latter, how does POFA apply if there was no written notice to driver or does the VCS employee stating (on VCS record - shown by SARs) that the 'vehicle acknowledged the pcn' count as an official notice to driver.

If they issue a NtD (on the car) then they have to wait 28 days before accessing the DVLA but deliver within 56 days.

Here though they didn't issue a NtD and went straight to NtK. One of the conditions for Keeper Liability to accrue is that the NtK must be delivered within 14 days - it did.

'Acknowledging PCN' is not a NtD (as per the legislation at least).


--------------------
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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idaho
post Thu, 2 Apr 2020 - 19:42
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Thanks for straightening that out.

The NTK looks to be POFA compliant apart from that it doesn't state the period that the car was parked. There is a line 'This charge relates to the period of parking (including remaining at the Car Park/Site) immediately preceding the Contravention Time specified in this Notice' This appears a bit vague but is it enough to meet the requirements of POFA?
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Jlc
post Thu, 2 Apr 2020 - 20:29
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Strictly, no, but a judge isn't likely to consider that substantive to disengage keeper liability.


--------------------
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 Fri, 3 Apr 2020 - 06:38
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QUOTE (idaho @ Thu, 2 Apr 2020 - 16:20) *
the driver did speak to the the VCS employee who was taking photographs and said that the car (and the 10 or so others with the car had all been ticketed)

'said that the car'...said what.

I'd be surprised if it really is PoFA compliant, of course it won't have period of parking. But VCS are rarely manage the rest properly although they kind of 'try a bit' enough to fool people who don't check it precisely, perhaps post a scan/photo of the NtK for review, just personal details redacted.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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idaho
post Wed, 15 Apr 2020 - 15:10
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QUOTE (The Rookie @ Fri, 3 Apr 2020 - 07:38) *
QUOTE (idaho @ Thu, 2 Apr 2020 - 16:20) *
the driver did speak to the the VCS employee who was taking photographs and said that the car (and the 10 or so others with the car had all been ticketed)

'said that the car'...said what.

Said the car had been ticketed - sorry missed out a bracket.

I'd be surprised if it really is PoFA compliant, of course it won't have period of parking. But VCS are rarely manage the rest properly although they kind of 'try a bit' enough to fool people who don't check it precisely, perhaps post a scan/photo of the NtK for review, just personal details redacted.



Thanks for offer to look over the NTK.

I thought, to my admittedly inexpert eye, that it looked mostly ok. I assume that I am mainly looking at POFA para 9 as no NTD was given.

I spotted that it doesn't give a period of parking - which I though might be of some use as point around grace periods to consider the signage and thereby enter into a contract. Also, there is therefore that no proof that a parking event - and therefore acceptance of conditions and a contract being formed.

It also fails on 9.2(f) 'period of 28 days beginning with the day after that on which the notice is given' as it sates from date of issue.

I wasn't sure there was anything else but if anyone can spot any other POFA non-compliant, I'd be grateful.

Cheers

Attached File(s)
Attached File  VCS_NTK_1.pdf ( 168.99K ) Number of downloads: 96
Attached File  VCS_NTK_2.pdf ( 234.42K ) Number of downloads: 73
 
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idaho
post Sat, 18 Apr 2020 - 14:52
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I had a though and wondered if anyone could add there more experienced opinion to it.

POFA says they can't see to claim more than the amount on the NTK. VCS has stacked on their random £60 now - does this have any impact on their use of POFA to pursue the registered keeper as the extra £60 is in contravention of POFA?

Also, how does anyone rate the compliance of the NTK?

Thanks.
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ostell
post Sat, 18 Apr 2020 - 15:01
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You blanked the dates out.

Failing 9 (2) (f) The warning of keeper liability. The wording is not in the prescribed format.

The have said date of issue when it should be date given. Could be several days adrift.

They can claim the £60 but the keeper is not liable to pay it.

This post has been edited by ostell: Sat, 18 Apr 2020 - 15:14
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idaho
post Sun, 19 Apr 2020 - 19:44
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Thanks - that was the only issue I could find.

As for dates:

alleged contravention - Sunday 4th Dec 2016

NTK posted Tuesday 13th Dec 2016. Which, annoyingly, puts then within dates.
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The Rookie
post Mon, 20 Apr 2020 - 08:02
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QUOTE (idaho @ Sun, 19 Apr 2020 - 20:44) *
alleged contravention - Sunday 4th Dec 2016

NTK posted Tuesday 13th Dec 2016. Which, annoyingly, puts then within dates.

Breach not contravention.

ONLY if they used first class post, which they almost certainly didn't, otherwise there is no presumption of delivery, although I assume you didn't note the actual date of service.

Not sure how a Judge would respond to a challenge on the 14 days if FCP isn't used.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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idaho
post Tue, 21 Apr 2020 - 16:21
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QUOTE (The Rookie @ Mon, 20 Apr 2020 - 09:02) *
QUOTE (idaho @ Sun, 19 Apr 2020 - 20:44) *
alleged contravention - Sunday 4th Dec 2016

NTK posted Tuesday 13th Dec 2016. Which, annoyingly, puts then within dates.

Breach not contravention.

ONLY if they used first class post, which they almost certainly didn't, otherwise there is no presumption of delivery, although I assume you didn't note the actual date of service.

Not sure how a Judge would respond to a challenge on the 14 days if FCP isn't used.



POFA (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.

So that means the clock starts on the 5th December (Monday) so they have until the 19th to get it to me.

POFA (6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

I guess second class post could be proved. Royal mail states 3 working days for second class post. Posted 13th, 14th next day for 3 day clock to get to me so it gets to me on Friday 16th and they had until Monday 19th.

I would really like to be wrong here - so please correct me! I'm getting myself confused on the 2nd working day after the day it was posted bit.
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The Rookie
post Tue, 21 Apr 2020 - 19:53
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QUOTE (idaho @ Tue, 21 Apr 2020 - 17:21) *
POFA (6)A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.

Thanks, another piece of bizarre legislation as the interpretation act requires first class post for that to be presumed for that in almost any use.


--------------------
There is no such thing as a law abiding motorist, just those who have been scammed and those yet to be scammed!

S172's
Rookies 1-0 Kent

Council PCN's
Rookies 1-0 Warwick
Rookies 1-0 Birmingham

PPC PCN's
Rookies 10-0 PPC's
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idaho
post Tue, 5 May 2020 - 18:54
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After a bit of back and forth with ELMs I'm preparing my response to them and what they have sent - which is basically the VCS photos of the car parked and the NTK. My question is how much detail to put in?

I've got coupon mad's template from MSE and that appears to be used at the court stage. So is my best course to use that template as it is (with my own details put in the editable sections), use a toned down version of it or something else responding only to the particulars of my situation?

Thanks
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nosferatu1001
post Tue, 12 May 2020 - 08:42
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If by "template", you mean a full on defence - yes, of course that s only used at claim stage!
State they cannot hold the keeper liable using POFA, as they have failed to use the correct wording in 9(2)(f), and they are completely aware there is no "reasonable presumption" in *law* that the keeper is the driver. Shoudl they be foolish enough to initiate a court claim, you will require them to prove their claim in full, and you will be seeking yuor full costs on the indemnity basis, assessed at the LIP rate of £19 per hour, as VCS is fully aware that they have no prospect of success and so their behaviour will meet the high bar for unreasonable behaviour.
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