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Some interesting developments...
Chloe O'Brian
post Fri, 14 Dec 2018 - 00:17
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Posting here as one or two of the most knowledgeable and helpful people from MSE seem to be 'on holiday' again. I am using a slightly different name this time. There have been a few very interesting developments which I'm hoping could cause the scamming PPC a fair bit of grief. SchoolRunMum in particular may remember our discussion about the lack of a copy of the original NTD after a SAR was sent, and she subsequently advised re contacting the ICO.

Recently I received the usual 'you must withdraw your defence' letter from the solicitor, which was pretty funny. I've been stalking these fora closely enough to know exactly what to expect from them! More interesting were the documents received at the same time. Firstly, there was a supposed copy of the NTD. This was just a computer printout with 'reprint' plastered all over it. Either the PPC originally withheld information and then lied about it, or this document was cooked up rather conveniently.

Also included was a copy of the PPC's contract. Turns out the leaseholder of the car park is a very well known high street financial institution. The contract between them is very old and contains references to clamping and towing, which I believe were made illegal when POFA came in. Surely a contract which includes illegal acts is void? Am I right in thinking that the leaseholder is jointly responsible for this? I imagine it has probably not been noticed by the leaseholder and could potentially be quite embarrassing for the company... The contract also makes no mention of giving permission for the PPC to pursue anyone through the courts, which my research tells me would have been compulsory wording to comply with the BPA CoP that was applicable at the time. The contract explicitly states that they must adhere to the BPA guidelines.

It has also come to my attention that some of the car park signs contain wording that threatens clamping and towing, not that these were visible due to conditions at the time of the alleged contravention.

I'd be very interested to read the experts' thoughts on where to go with this. Letter to the solicitor mentioning these facts? Stir things up with the financial institution? Maybe just save it for WS stage? This is about more than just winning my case - I'm bloody angry at the way these scammers treat people and I'm hoping the forumites with legal knowledge will be kind enough to advise how best to give this PPC as hard a time as possible. Many thanks in advance!

This post has been edited by Chloe O'Brian: Fri, 14 Dec 2018 - 00:27
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post Fri, 14 Dec 2018 - 00:17
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freddy1
post Fri, 14 Dec 2018 - 00:28
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you say the contract mentions clamping , then you say they must adhere to bpa guidelines ?

when the guidelines were written , clamping had been banned


I can envisage one situation that both things might be appropriate , that of bylaw land , ie railways , is this the case here ?
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Chloe O'Brian
post Fri, 14 Dec 2018 - 00:38
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Freddy1 nope, private land.
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Jlc
post Fri, 14 Dec 2018 - 07:32
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The mention of clamping does not automatically invalidate the entire contract.

The ability to pursue the matter to court is more interesting.


--------------------
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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Chloe O'Brian
post Fri, 14 Dec 2018 - 09:33
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Thanks Jlc. The only relevant clauses that I can see are:


The Company hereby agrees with XXXX as follows

To install at their own expense signs clearly stating that parking charge notices, wheel clamping and or towing away of cars without a valid parking ticket or otherwise parked illegally together with details of all relevant current charges for release of any vehicle which may have been immobilised or towed away together with all relevant current charges applicable for the release of any such vehicles that are immobilised or towed away.

To operate and provide a vehicle immobilizing service and/or towing away service at the Site in the matter hereinafter appearing

To issue a parking charge notice or immobilise and or tow away cars parked in XXXX not displaying a parking ticket or otherwise parking illegally provided that the fee for release of any such vehicle shall be reasonable and shall not exceed £100 and provided further that the company shall not immobilise or tow away any such vehicle without first having obtained the consent of XXXX's local manager to do so.

To comply at all times with all statutory and other legal obligations and to adhere to the British Parking Association Guidelines

Any immobilising or towing away of a vehicle by the Company shall be subject to the prior approval of XXXX's local manager whose decision shall be final.


That's it, all of the other clauses relate to things like insurance and XXXX's percentage of the takings. Later it is stated that a party may terminate the agreement if the other party has breached their obligations and failed to take all steps to remedy such breach. XXXX's representative's signature is clearly legible but curiously there seems to be no signature on behalf of the PPC. Other redacted bits are covered with something that looks like Tipp-Ex whereas that is just blank. The name of the town is misspelled and the typos are theirs! A little googling suggests that the signatory still works for XXXX, although not at branch level.

The contract was signed well before 2012 and the applicable CoP at the time of the alleged contravention would have been the October '14 version.
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nosferatu1001
post Fri, 14 Dec 2018 - 09:34
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there will be a boilerplate saying that one line being invalid doesnt invalidate the whole contract

Lack of authority to take t ocourt is crucial. They have NO standing to pursue you in court in their own name.
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Chloe O'Brian
post Fri, 14 Dec 2018 - 10:00
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Thanks nosferatu. I had looked at this line from Wikipedia (not that I'd ever rely on it!): 'An illegal agreement, under the common law of contract, is one that the courts will not enforce because the purpose of the agreement is to achieve an illegal end'. Obviously I'm not legally trained, so I'm grateful for expert opinions before I take things any further. I'm pleased that the PPC has no standing to pursue me in their own name, but was also hoping that I could use this to really stir things up for them given the standing of the leaseholder. Any thoughts on whether to take this up with them at local level or maybe try to get contact details for the original signatory/contact someone at a higher level? I did speak to a local manager weeks ago when I was trying to establish ownership of the car park. He didn't know who the owner was, but did mention that the PPC are a menace to staff!
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nosferatu1001
post Fri, 14 Dec 2018 - 12:09
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Yes, but unless they ar etrying to enforce the clamping aspect, the agreement isnt "illegal" - its just unenforceable but likely ONLY for the clamping part

AS i said, there is usually a severability clause, in EVERY contratc,stating that one bit being found invalid / unenforcebale / etc doesnt affect the rest of the contract.

I doubt any court would givetwo hoots abpiut the clamping unless a) you have been clamped and b) the operator was trying to say theyre not liable because their contract tells them to clamp.

I would drop it.

I doubt it would "really stir thingsup". They wont care.
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Chloe O'Brian
post Fri, 14 Dec 2018 - 12:25
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Ah that's a shame - I was hoping the leaseholder might come down on them like a ton of bricks! Interestingly, I can't see anything resembling a severability clause. The agreement is pretty simple and looks as though it was probably written by someone from the PPC. In my experience, even fairly straightforward business agreements are written in much more complicated terminology if they are overseen by a solicitor.

This post has been edited by Chloe O'Brian: Fri, 14 Dec 2018 - 12:34
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SchoolRunMum
post Fri, 14 Dec 2018 - 15:55
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QUOTE
one or two of the most knowledgeable and helpful people from MSE seem to be 'on holiday' again.

I can't post over there right now but not for a bad reason, I'm not banned, it's a temporary thing they are doing for me as someone keeps bothering me like a pesky itch.

Just so you know!

Are the PPC even still in the BPA?
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Chloe O'Brian
post Fri, 14 Dec 2018 - 16:45
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Glad things are ok SchoolRunMum. I was wondering, plus there seem to be a few names that I don't recognise giving strange advice over there at the moment. Thought something fishy may be going on!

No the PPC are not BPA now, they jumped ship the year after the alleged incident. Trading Standards may be interested to know that to this day they still have the roundel on their signs.

This post has been edited by Chloe O'Brian: Fri, 14 Dec 2018 - 17:16
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Churchmouse
post Fri, 14 Dec 2018 - 18:23
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QUOTE (Chloe O'Brian @ Fri, 14 Dec 2018 - 09:33) *
Thanks Jlc. The only relevant clauses that I can see are:


The Company hereby agrees with XXXX as follows

To install at their own expense signs clearly stating that parking charge notices, wheel clamping and or towing away of cars without a valid parking ticket or otherwise parked illegally together with details of all relevant current charges for release of any vehicle which may have been immobilised or towed away together with all relevant current charges applicable for the release of any such vehicles that are immobilised or towed away.

To operate and provide a vehicle immobilizing service and/or towing away service at the Site in the matter hereinafter appearing

To issue a parking charge notice or immobilise and or tow away cars parked in XXXX not displaying a parking ticket or otherwise parking illegally provided that the fee for release of any such vehicle shall be reasonable and shall not exceed £100 and provided further that the company shall not immobilise or tow away any such vehicle without first having obtained the consent of XXXX's local manager to do so.

To comply at all times with all statutory and other legal obligations and to adhere to the British Parking Association Guidelines

Any immobilising or towing away of a vehicle by the Company shall be subject to the prior approval of XXXX's local manager whose decision shall be final.


That's it, all of the other clauses relate to things like insurance and XXXX's percentage of the takings. Later it is stated that a party may terminate the agreement if the other party has breached their obligations and failed to take all steps to remedy such breach. XXXX's representative's signature is clearly legible but curiously there seems to be no signature on behalf of the PPC. Other redacted bits are covered with something that looks like Tipp-Ex whereas that is just blank. The name of the town is misspelled and the typos are theirs! A little googling suggests that the signatory still works for XXXX, although not at branch level.

The contract was signed well before 2012 and the applicable CoP at the time of the alleged contravention would have been the October '14 version.


The provisions (without the struck-out language) still more or less work for a PCN-based business. The issue would be the lack of specific authorisation to sue motorists.

(There are two BPA entities, only the BPA AOS uses POPLA.)

--Churchmouse
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southpaw82
post Fri, 14 Dec 2018 - 18:44
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QUOTE (Chloe O'Brian @ Fri, 14 Dec 2018 - 12:25) *
I can't see anything resembling a severability clause.

Doesn’t matter, a court would still sever it (if it won’t destroy the entire contract) to give effect to the rest (Nordenfelt v Maxim).


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Chloe O'Brian
post Fri, 14 Dec 2018 - 19:24
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Thanks for the info Churchmouse and Southpaw. The PPC are not on the current list of BPA approved operators but their signage still claims they are. It would make me chuckle if Trading Standards required them to replace all their signs.
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SchoolRunMum
post Fri, 14 Dec 2018 - 22:32
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QUOTE
plus there seem to be a few names that I don't recognise giving strange advice over there at the moment. Thought something fishy may be going on!


Who? Usernames? I can ask others to report that on MSE, I am in touch with several regulars there, even when temporarily not posting.
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Chloe O'Brian
post Fri, 14 Dec 2018 - 23:06
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SchoolRun, you've already mentioned the main one I'm thinking of in another post. Even with my limited experience, I knew that several of their posts gave misleading advice.

With regards to my own situation, and disregarding my desire to annoy the PPC for the moment, I would be interested to hear your thoughts on how best to proceed. I've made no contact with the solicitor and only corresponded with the PPC to get the SAR info. I'm conscious that this could be seen as being uncooperative by the court. Is it worth writing a response to the solicitor's last letter which contained the information mentioned in my first post here? I'm tempted to point out that the PPC's own photographs and mine show signs to be inadequately lit in darkness, the client has no standing to bring a claim (thanks previous posters!) and I'm wondering if there's any mileage in the fact that a 'reprint' NTD has suddenly materialised? The letter gives the impression that, as you predicted, the solicitors would be out of the loop regarding the contents of the SAR.
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SchoolRunMum
post Sat, 15 Dec 2018 - 12:57
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The poster is doing the same here, but I hope by now most regulars have seen right through him.

Yes all of that is worth saying to the solicitor in a response, which looks reasonable as you are trying your hardest to resolve the dispute (not that it will).
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Chloe O'Brian
post Sat, 15 Dec 2018 - 21:43
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Thanks SchoolRun. I did put in a complaint to the ICO as previously suggested, so I'll contact them again with a copy of the 'new' NTD as well.

I'm sure the regulars do spot strange goings-on very quickly. It's the newbies I feel sorry for, the whole process is scary and confusing enough without being given incorrect information before figuring out whose advice to trust.
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Chloe O'Brian
post Tue, 19 Feb 2019 - 01:02
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Thanks very much to everyone who offered advice. The PPC bottled out and discontinued once the case was transferred to my local court. For anyone who is interested in my case, most of the details are on my thread on the MSE forum where I posted as DammitChloe.
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