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geeeraffe
Hi all.

Firstly, thanks for taking the time to help me out here. I'm aware you must get a lot of new people asking questions without knowing who they are - i appreciate that.

I've looked around a lot of information regarding my PCN and i think i'm reasonably comfortable about the initial appeal letter i send, but i want to clarify whether or not the PCN i have received is in compliance with POFA 2012 before i use that in my initial response (and complaint to the retailer).

From reading Schedule 4 of POFA 2012, CEL seem to have complied with most elements (mainly in the small print rolleyes.gif ) but they don't explicitly state that they do not know who the driver is. Schedule 4, Para 9(e) states:

QUOTE
[the notice must] 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;


The foot of the PCN states only the following text:
QUOTE
It is the driver's responsibility to pay this PCN. If you were not the driver you may pay this PCN or provide us with the name and current address for service of the driver and pass on this PCN to the driver.


I see how this complies with parts (i) and (ii) but it doesn't say they don't know who the driver is.

Do you think this is a PCN compliant with POFA 2012? I couldn't find any recent examples of CEL appeals on the search function.

Again, many thanks. Never fought one of these before, so i'm keen to get it right first time!
dandyman
I'd say that's pretty thin stuff to base an appeal on.

At this stage it doesn't really matter what you say to CEL (so long as you don't reveal who was driving) because they'll reject it anyway, the PoPLA code is what you want.
geeeraffe
Thanks - when i get to POPLA i will be basing the appeal on estimate of loss, as i feel it was not a fair amount for the overstay of the vehicle.

In this instance i just wanted to make sure i was getting POFA correct so as not to look like i don't know what i'm doing!
ostell
QUOTE (geeeraffe @ Fri, 10 Jul 2015 - 10:08) *
Thanks - when i get to POPLA i will be basing the appeal on estimate of loss, as i feel it was not a fair amount for the overstay of the vehicle.


Hope it is going to be more than that! Look at some of the ither POPLA appeals.
nosferatu1001
Minimum 3 parts, then POFA compliance if they didnt.

You are looking for "unconscionable and extortionate" charge, not solely GPEOL.

Parking cowboy have a nice guide of bullet points
Jlc
Many PPC's have abandoned PoFA and pursue the keeper regardless (on the presumption they were driving).
geeeraffe
Thanks - i've read other POPLA appeals and i thought the general consensus was not to appeal to mitigation (i.e. why the driver was parked there, and "it was only a minute" etc.) but to use legislation (and non-compliance with said legislation) and also non-genuine pre-estimate of loss?

Some more detail, as this may not be as straighforward as i'd hoped(!):

The car was parked out of hours in a homebase car park for thirty minutes over the allocated one hour. Since going to visit the car park a few days ago, there was nothing on the sign to indicate that out of hours is not allowed, only that the one hour is a limit. I hoped that arguing non-GPEOL (and the unconscionable and extortionate charge as above) would be sufficient. Is this not the case any more?

edit: thanks both.

@Jlc - is that approach therefore just them chancing their arm that i'll give in?
kommando
QUOTE
Thanks - i've read other POPLA appeals and i thought the general consensus was not to appeal to mitigation (i.e. why the driver was parked there, and "it was only a minute" etc.) but to use legislation (and non-compliance with said legislation) and also non-genuine pre-estimate of loss?


Yes that is correct but contract law as well which is not legislation but case law, but you need more than GPEOL and need to take into account Beavis hence the addition of "unconscionable and extortionate" , you will find lots more to use in the completed cases part of the forum.
nosferatu1001
Noone has said to use mitigation at popla

The three elements are:

Standing to offer contracts. Make them prove they havea contract with the landOWNER (not a management company) that allows them to issue parking AND allows them to take it to court. Without this they fail to comply with teh BPA COP as well

Signage - the only way to form a contract here would be through signs, so if these are poor, unseen etc then this fails

The charge is an unconscionable penalty so tyalk about local council parking charges. Solely GPEOL is not sufficient any longer
Jlc
QUOTE (geeeraffe @ Fri, 10 Jul 2015 - 10:33) *
@Jlc - is that approach therefore just them chancing their arm that i'll give in?

PoFA puts strict requirements on them to engage the 'liability'. Some PPC's decided it wasn't worth the hassle and just pursue the keeper anyway, especially when PoFA cannot apply, i.e. relevant land.

In these circumstances if they are not relying upon PoFA then if the keeper wasn't driving (and could demonstrate such) then there's a perfect defence. Indeed, even at POPLA they are likely to uphold an appeal if it is stated that they have written to the keeper and are not relying upon PoFA and they have not presented any proof as to the driver...
geeeraffe
QUOTE (nosferatu1001 @ Fri, 10 Jul 2015 - 11:14) *
Noone has said to use mitigation at popla

The three elements are:

Standing to offer contracts. Make them prove they havea contract with the landOWNER (not a management company) that allows them to issue parking AND allows them to take it to court. Without this they fail to comply with teh BPA COP as well

Signage - the only way to form a contract here would be through signs, so if these are poor, unseen etc then this fails

The charge is an unconscionable penalty so tyalk about local council parking charges. Solely GPEOL is not sufficient any longer

Thanks. I'll draft a response tonight and post it here for some feedback, if that's ok. I'm aware that CEL will reject it, but it will at least get my head right as to what i am appealing. Thanks for the points about GPEOL - the last CEL case study i looked at in the completed section of the forums indicated that this was what was upheld at POPLA. Is it the Beavis case that has changed that? Is unconscionable penalty upheld as frequently at POPLA?

QUOTE (Jlc @ Fri, 10 Jul 2015 - 11:23) *
QUOTE (geeeraffe @ Fri, 10 Jul 2015 - 10:33) *
@Jlc - is that approach therefore just them chancing their arm that i'll give in?

PoFA puts strict requirements on them to engage the 'liability'. Some PPC's decided it wasn't worth the hassle and just pursue the keeper anyway, especially when PoFA cannot apply, i.e. relevant land.

In these circumstances if they are not relying upon PoFA then if the keeper wasn't driving (and could demonstrate such) then there's a perfect defence. Indeed, even at POPLA they are likely to uphold an appeal if it is stated that they have written to the keeper and are not relying upon PoFA and they have not presented any proof as to the driver...

I was not driving - quite how i'd prove that, i'm not sure, but then the onus is on them to prove it was me, right?
Jlc
QUOTE (geeeraffe @ Fri, 10 Jul 2015 - 11:36) *
I was not driving - quite how i'd prove that, i'm not sure, but then the onus is on them to prove it was me, right?

Fortunately at POPLA the burden of proof is put on the operator... You state you were not driving, they are not relying upon PoFA, therefore you have no liability. (Unless they can prove it was you driving)

At another 'independent' appeals system the burden of proof is reversed and they will say that if you don't provide proof you weren't driving and have refused to name the driver then you were probably driving...
geeeraffe
Hello again.

I've drafted my first appeal, using advice from templates on here and MSE, amended slightly to fit my circumstances.

If you all think it's acceptable, would it be worth emailing now, or close to the 28 day limit? Any reasons for either - i'm on holiday from monday so it's either going to be this weekend, or on the 27th day since PCN issue. Also, what does CCR stand for? I've included a section at the end, but i'd like to expand on it (and also personally know what it means!)

Thanks. Comments obviously welcome.

------

Dear Sirs,

Re: PCN No: xxxxx

I challenge this Parking Charge Notice (PCN) as keeper of the vehicle, on these main grounds:
a. The sum is extravagant and unconscionable and cannot be justified.
b. The sum is disproportionate, does not represent a genuine pre-estimate of loss, nor is it a core price term.
c. There is no evidence that you have any interest in the land and no evidence that you have a contract with the landowner. I have complained to the landowner about your aggressive ticketing.
d. I believe that the signs in the area are difficult to see, ambiguous in nature and entirely unlit. The vehicle was parked at hours of darkness and I believe the signs were not seen. Since their predominant purpose is to deter, there is no contract to pay this charge, which is a penalty.
e. Your 'Notice' fails to comply with the Protection of Freedoms Act (POFA) 2012, specifically Schedule 4, paragraph 9(e), in which you fail to state that you are unaware of who the driver is. As a result, there can be no keeper liability.

Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. Your failure to adhere to POFA 2012 means there can be no keeper liability and I request that you therefore cancel the charge.

If you do not cancel the charge, I will only appeal further if you offer POPLA (as stated at the foot of the PCN). The 'Independent Appeal Service' offered by the Independent Parking Committee (IPC) will not be used, for well-documented reasons.

Breach of CCRs
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered nor expressly agreed. This 'contract' is cancelled and any obligations now end.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,
Jlc
Why is IPC mentioned? (CEL are still in the BPA - I presume the template you've copied was for a PPC who has switched from BPA to IPC)

Never use anything you don't understand... CCR will be referring to 'Consumer Contract Regulations' - basically the Distance Selling Regulations.

You haven't told us what happened and whether there was a PCN on the car etc.?
geeeraffe
QUOTE (Jlc @ Fri, 10 Jul 2015 - 15:43) *
Why is IPC mentioned? (CEL are still in the BPA - I presume the template you've copied was for a PPC who has switched from BPA to IPC)
It must have been - i wasn't aware there was a difference. Thanks for picking it up, i'll remove it.

QUOTE
Never use anything you don't understand... CCR will be referring to 'Consumer Contract Regulations' - basically the Distance Selling Regulations.
This is why i wanted to know. So i can understand the ins and outs better.

QUOTE
You haven't told us what happened and whether there was a PCN on the car etc.?
The vehicle was parked in a Homebase car park with "FREE PARKING - SUBJECT TO TERMS" on the sign on the way in. This sign is unlit and high up. The terms of the signs around the car park are for 1 hour free parking, £100 if you overstay. These signs are also unlit and high up. The vehicle was there for 1hour 30 minutes, at 9pm-1130pm, after shop trading hours.

No PCN was issued onto the windscreen, but i received an NTK through the post. It was issued 12 days after the 'offence' took place.

I think that's about everything.
geeeraffe
Hi again.

Some good news! A few weeks ago i sent an email to the customer services and MD of Homebase and the person who dealt with my query liaised direct with CEL to waive the 'fine' as a 'gesture of goodwill'. I didn't even have to contact CEL at all in this instance, which shows the power of the companies involved and how it can be useful to go to them first, rather than engaging the parking firms.

Anyway, thanks for the advice. Keep up the good work.

Is there a way i should mark this thread to be moved to a 'successes' part of the forum?
emanresu
You'd ask the Mods to move it to "Completed Cases" or post a new thread and link it back.

Who replied for HomeBase was it customer services or the CEO. Post up the email address for others too.
geeeraffe
The emails i used were from here: http://www.complaintsdepartment.com/homebase-uk/

and were:

QUOTE
Customer Services on enquiries@homebase.co.uk

Paul Loft (CEO) on mdcustomer.escalation@homebase.co.uk


All responses came through the latter address. The customer services themselves weren't able to assist.
Gan
As an aside, for future situations include your reasonable belief that CEL doesn't have a contract with the land-owner

It's very likely, as in the Co-op situation, that Homebase contracted with Creative Parking Ltd, a sister company with a relatively clean reputation (except with Bridgnorth Council)

Creative would then sub-contract the operation to CEL that would, I believe, channel the payments back to Creative

We see very few threads for Creative although their accounts show them to be many times larger than CEL
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