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emergencychimp
So the driver got a parking charge in a residential car park in the time from leaving the car in a visitor space and going up to grab a parking permit from an outgoing tenant.

It seems this place is employing 'civilian' type attendants. No marked car, no uniform...

Anyway, of course a valid permit was in the possession of the driver.

My initial question is, do you send the appeal before the 28 days? I've read some people send it a couple of days prior. Or is the normal procedure to wait for NTK?



ostell
Yes, wait for the NTK. You were visiting an outgoing tenant? If you can get a copy of the lease which will probably give the right to park to the tenant and visitors without the need to display a permit.
emergencychimp
The tenant was moving out and the keys were being collected from them. No access to lease.
ostell
Who was collectiong the keys? Estate agent, friend........?
Eljayjay
You could try eservices.landregistry.gov.uk for the lease.
emergencychimp
Driver was collecting keys under instruction of agent.
nosferatu1001
ASsuming not a lease or hire car, wait for the NtK

They will state there is no appeal, however you do so anyway as KEEPER of the vehicle
State the driver of the vehcile was colelcting the permit, and insufficient observation time was given to allow for this.
In addition, their notice fails POFA to hold the keeper liable for X, Y, Z reasons (look it up yourself - POFA Schedule 4, para 8) and as such only the driver is liable, wjo you choose not to name. No assumptions about the identiy of the driver can be made

Either contact the driver or cancel the charge, either way you will not make payment without a court ordering so. Of course, no payment will ever be made to a third party, you do not have your consent to pass your data to any third party, and any costs you incur are your wasted costs to bear and are of no concern of the Keeper.
emergencychimp
Thanks. Not a lease or hire car, no. Will come back when NTK turns up.
nosferatu1001
Get reading POFA schedule 4 para 8 in the meantime. Dont just sit twiddling thumbs, do your research.
ostell
And ageny was acting under the instructions of the Lease Holder whose lease most likely gives them the right to park.
emergencychimp
This is a no question win surely as the notice to driver isn't valid due to not displaying the period the car was parked?
Jlc
QUOTE (emergencychimp @ Sat, 5 Aug 2017 - 17:12) *
This is a no question win surely as the notice to driver isn't valid due to not displaying the period the car was parked?

If it was only that simple. For a 'no permit' situation periods of parking are mostly irrelevant.

Do the signs explicitly state there's no grace period?

As fetching the permit would not be unreasonable.
emergencychimp
Photo of the closest 'wordy' sign.



I was in fact parked by a sign that just said 'Private property - Strictly residents parking only' which was displayed over 3 or 4 visitor bays.
Jlc
How long did it take to collect the permit?
emergencychimp
Under 10 minutes. Driver was parked where this white BMW is.

Lynnzer
So many ways to kill this, or at least to cause them hassle.

For a start the lease more than likely won't impose parking restrictions for permit use. It certainly won't/can't impose a secondary contract with a parking company for use of the parking bays.

The sign is forbidding. That is, they limit parking to cars displaying a valid permit only. The rest of the wording cannot effectively be construed as an offer to park without a permit as they can't contract with you to do something they forbid.

Plenty of examples on forum on other residential cases.

Just to whet your appetite take a read of the stuff from my signature links.

Also do a skip through some of the Pranksters blog. There are many examples where people have won cases for situations like this.
emergencychimp
Whilst I do not have access to the lease, I do know when the tenants moved in, there were no parking restrictions. Well, nothing enforceable wink.gif

This parking enforcement company only started their contract April this year.
Jlc
The bottom line is that they will reject any appeal and will almost certainly issue a claim. This is private parking at it's best.

How do they expect visitors to get the permit? By TARDIS?

But if one was giving the benefit of the doubt perhaps their operative just happened to appear a few seconds after the driver disappeared. Looked, saw the car parked and issued the ticket. They didn't appear to wait 10 minutes. Perhaps they were lurking all the time.

But a contract with them (forbidding aside) whilst the permit was being collected. If the permit could not be collected then the driver should have left, within 10 minutes. But they didn't, they returned with the (presumably) valid permit. Whilst the permit was being collected there was not a contract but a licence to remain on the land for that short period.

Whilst it could be argued about forbidding sign etc. perhaps the way to approach this is via the 'truth'. No malarkey about complying with PoFA etc. but simply the driver was collecting the permit to commence the contract (and it wouldn't have been breached).

QUOTE (emergencychimp @ Sat, 5 Aug 2017 - 19:31) *
Whilst I do not have access to the lease, I do know when the tenants moved in, there were no parking restrictions. Well, nothing enforceable wink.gif

The lease is not yours - so you cannot argue its primacy.

Although, perversely a recent court case did have the visitor 'win' and the actual tenant lose their court case! (For quite different reasons mind)
emergencychimp
So NTK was received last week. Do I need to post the photos they took?





I was thinking something along the lines of the following.

To whom it may concern,

I have received a notice to keeper re. parking charge XXXXXXX. I am appealing as the keeper of the vehicle.

The driver of the vehicle was collecting the parking permit to transfer over to the driver's vehicle at the time of the PCN being issued. Insufficient observation time was given to allow for this.

If you would like additional reasons to cancel this PCN, both the notice to driver and notice to keeper fail to comply with the Protection of Freedoms Act 2012. No assumptions about the identity of the driver can be made and I am under no legal obligation to identify them, which I will not be doing.

Either contact the driver or cancel the charge. Either way I will not make any payment without a court ordering to do so. I might add no payment will ever be made to a third party. You do not have my consent to pass my data to any third party. Any costs you incur are your wasted costs to bear and are of no concern of the keeper.

SchoolRunMum
Yep that's fine, then when they reject, do not try the IAS stage.

If thy try a small claim, your defence will focus on the main points, that:

- an inadequate grace period was allowed to fetch the visitors' permit (contrary to the IPC CoP), and that

- the NTK is not POFA compliant (the 28 day period warning is wrongly stated, and there is no period of parking observed that would have breached a reasonable grace period) and that

- a visitor is entitled to rely upon the authority of the resident they are fetching the permit from, and the resident has primacy of contract and rights that are validly transferred to the visitor who was merely getting that permit, and

- the signage isn't capable of forming a contract, and

- the parking firm are not landowners and have no contract or status which would allow them to sue in their own name...

Example of an ''own space'' defence written by a solicitor on MSE, here:

http://forums.moneysavingexpert.com/showth...32#post72977032

In that one the keeper wasn't the driver and it wasn't about the few minutes taken to get a permit, so it can't be copied verbatim.

Come back at court claim stage, or when you get a Letter before Claim from Gladstones.
emergencychimp
Appeal rejected. No surprise.

I'm a bit confused they're saying the appeal is out of the time limits. Is that something to do with waiting on NTK?

And do you think they really don't know their notice to driver and NTK, and signage are not compliant or are they just lying.



Jlc
They claim the vehicle did not have a permit for 12 minutes. (And only allow 5)

The appeal date appears to be referring the original PCN date and not the NtK? (Some companies don't accept appeals from a NtK)
emergencychimp
How relevant is it that there is no mention of a grace period on any sign?

Should I post their photos or just wait to see if a letter before claim turns up?

Should I chase the landowner to get them to cancel it?
The Rookie
1/ Not at all relevant

2/ No, they aren't relevant

3/ You can do, yes, it depends if the Landowner brought them in or a managing company (which is good news as they have even less right to impose extra restrictions as they are meant to work for flat residents/owners). I would ask your customer (the landlord) to pay for the parking cost (as the PPC claim its a contractual cost and not a fine/penalty) of recovering the permit unless he gets it cancelled for you, he will have more clout and also it saves giving away the drivers ID.
emergencychimp
I'm not going to ask anyone to pay for anything.

I have the details of the property management company at the site. I assume they are responsible for bringing in the parking system.

I suppose I could advise them it would be best to cancel the PCN as their parking agent is not compliance with POFA 12 and they will be grouped into any legal action.

Jlc
QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 12:41) *
I have the details of the property management company at the site. I assume they are responsible for bringing in the parking system.

Yes, but they'll probably say the matter is with the parking company...

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 12:41) *
I suppose I could advise them it would be best to cancel the PCN as their parking agent is not compliance with POFA 12 and they will be grouped into any legal action.

What's not in compliance?

How will you group them in legal action? (This would only be possible if you claimed or counterclaimed)

The bottom line is a claim is extremely likely - prepare for it. You need your facts straight as you said it took less than 10 minutes to get the permit (reasonable) where they state 12. (May be sharp practice but is important)
emergencychimp
But they are capable of cancelling the PCN if they employed the parking company

Their notice to driver and NTK are not in compliance with POFA 12.

Yeah. Just thinking out loud there.

Maybe it was 12 minutes. I don't know. Who would count. As you can see from the sign, there is no mention of any permit being required. It just says 'strictly residents parking only'. Had there been a full sign over the visitor parking bays, perhaps a permit might have been acquired quicker.
Jlc
QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 13:55) *
But they are capable of cancelling the PCN if they employed the parking company

Believe or not, not necessarily! One wonders who signs up for these conditions but there's often a limit to the number of cancellations or even a charge to do so!

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 13:55) *
Their notice to driver and NTK are not in compliance with POFA 12.

You'll have to be more specific...

QUOTE (emergencychimp @ Wed, 6 Sep 2017 - 13:55) *
Maybe it was 12 minutes. I don't know. Who would count. As you can see from the sign, there is no mention of any permit being required. It just says 'strictly residents parking only'. Had there been a full sign over the visitor parking bays, perhaps a permit might have been acquired quicker.

Of course, but if they disprove any witness statement it won't assist your case. The signage angle is much better.
nosferatu1001
Most IOC members don't allow keepers to appeal.
emergencychimp
So I got a nice little letter from the lovely bunch at Gladstones.



I was thinking something along the lines of the below. Suggestions, criticisms welcome.



To whom it may conern

I am writing to you as the registered keeper of the vehicle *** and to confirm that I have no liability in this issue.

As you are aware, you need to comply with Protection of Freedoms Act 2012 (PoFA2012) to hold the keeper liable and your client has failed to follow the procedures outlined.

As such, I cannot be liable for the alleged debt because of failure to adhere to these requirements, in particular (but not limited to) schedule 4, Paragraph 8.

In addition, the signage isn't capable of forming a contract.

The parking firm are not landowners and have no contract or status which would allow them to sue in their own name.

The sign was forbidding and that there was no offer of a contract to park as it stated "Private Property - Strictly Residents Parking Only"

Also, I am in my right to decline to name the driver and any presumption that the keeper is the driver using the inappropriate case of Elliot v Loake will be strongly refuted.

As I have no liability to you, I request that my details are removed from your filing systems under the requirements of the Data Protection Act. This request is to be taken as a request under Section 10 of the Act and I therefore require confirmation of removal within 21 days. Failure to comply with this request will result in a complaint to the ICO and to the DVLA for breach of the KADOE agreement.

I therefore expect that this issue (and any associated charges) are cancelled and that you respond to me confirming as such within 14 days of the receipt of this letter.

You should also note that I am now tracking costs in this matter.

Yours faithfully


emergencychimp
Jlc
You should follow PAP - the stuff you’ve said above will not stop a claim.
emergencychimp
Oh right. I grabbed that off another thread and modified it. I guess I didn't read it properly. Sorry, I'm not familiar with PAP. What's that?
nosferatu1001
Pre action protocol.
From 1st October they have to comply with more stringent rules.
Jlc
QUOTE (nosferatu1001 @ Mon, 20 Nov 2017 - 16:00) *
Pre action protocol.
From 1st October they have to comply with more stringent rules.

Indeed, but more importantly the 'defendant' has the opportunity to narrow the issues and request certain documentation.
emergencychimp
I'm reading the thread on MSE and there is a letter that pretty much just says the LBC is not compliant with PAP and to send a proper one before doing anything else? Is this OK to do, or do I need to point out the many failures of the LBC? (there are a lot) Or is that done at a later stage?

Also, as it requires a date for acknowledgement, is them simply stating 30 days from the date of the letter sufficient or does it need to put a date in proper date format?
nosferatu1001
30 days is fine. Presumed to be 30 days from service whic his presumed to be 2 working days after they send it.

There is a MSE letter which then also goes onto exactly what documetns you wish to receive.
emergencychimp
Thanks. I've submitted a letter stating their LBC is defective and that I await one that is compliant. I was dreading messing around researching this but that excellent thread on MSE was very useful and it was actually quite straightforward.
emergencychimp
OK. So this was the letter I sent to Gladstones.

QUOTE
To whom it may concern,

Thank you for your letter of ***** 2017.

First, the alleged debt is disputed and any court proceedings will be vigorously defended.

Your letter before claim is defective as it does not comply with numerous requirements of the Practice Direction on Pre-action Conduct.

Please therefore provide a Letter Before Claim which complies with the requirements of the Practice Direction on Pre-action Conduct:

I confirm that I shall then seek advice and submit a Response as required by the Practice Direction.

Please ensure that someone does actually read and respond to this letter, providing the specific information relating to any court claim that you intend to make against myself as the defendant to the proposed legal proceedings. Please DO NOT send a generic letter in reply as to do so does not meet the requirements of the Practice Direction and will take this matter no further forward.

Please note, a refusal to comply with the Practice Direction will result in an immediate referral to the Solicitors Regulation Authority for breach of the Principles contained in the SRA Handbook version 8, published on 1st October 2013.

I trust this will not be necessary, and look forward to receiving a fully compliant letter before claim in due course.



And the below is their reply.

QUOTE
You have replied to our letter, yet failed to advance the version of events as you know them. Please let me know what happened from your point of view and what you need from our client.
Please also let me know what section of the SRA handbook (version 8) you are referring to.
If I don't hear back, a claim will be issued.


Off the top of my head, I'm thinking something along the lines of.

Your reply has failed to address my issue with your letter before claim despite me explicitly requesting it. My version of events was not requested. I need your client to drop this ridiculous debt claim.

You should not be threatening claims if you cannot construct a compliant letter before court.

What do I do here? Mention their client has not complied with PoFA2012 again?
cabbyman
I think it is encumbent upon them to provide a compliant LBC before they can issue a claim. It should be grounds to have the claim dismissed, but others will advise in detail.
nosferatu1001
That was the massively short letter

You need to respond robustly, stating that they have failed to follow the requirements of the new PAP for debt claims. You require them to comply with their obligations , and you will then consider their response

State that, in the event they again refuse to comply with the protocol, and raise.p a claim, you will immediately apply for a stay of proceedings until they do comply, at their clients expense.
SchoolRunMum
And state that the sign at the bays, as shown in the operator's letters, made an offer without caveat or any charge:

QUOTE
Strictly residents' parking only


The driver was fetching the permit, which involved {going up flights of stairs/waiting for the lift, whatever} but the driver asserts this took less than ten minutes, during which time predatory tactics were used in issuing the 'PCN'. There is no evidence that the photographs shown were, in fact, taken 12 minutes apart, given that similar unreliable and very basic hand/held camera 'evidence' was used by UKPC, in the well-publicised case where the time of parking was altered.
emergencychimp
Thoughts on my reply anyone.


Dear Mr Gladstones Solicitor,

My version of events was not requested. I was merely responding to your defective letter before claim. Should you wish to instigate a claim, I will only respond to a compliant letter before claim. What I need from your client is to drop this ridiculous debt claim.

For your convenience, I shall reiterate what happened and outline why you should immediately cease all further chasing of this alleged debt.

1. The driver parked in a clearly marked visitor bay. Over these visitor bays is a sign that reads 'Private property - Strictly residents parking only'. Please see your clients notice to keeper for a picture of this sign. This sign makes an offer without any caveat or charge and I'm sure you'll agree, is incapable of forming any contract.

2. When it became clear to the driver a parking permit was indeed required (despite the confusing sign), the permit was sought and was in the hands of the driver in around 10 minutes. The driver returned to the vehicle to display the permit, by which time your client had issued the penalty charge notice. The driver has retained photographic evidence of possession of permit.

3. Your client's notice to driver was not compliant with the Protection of Freedoms Act 2012. Therefore your client has broken data protection laws by requesting my details. Your client, yourself, or anyone else has no legal authority to demand any payment from myself.

4. Your client's notice to keeper was not compliant with the Protection of Freedoms Act 2012. You can read the above paragraph again should you wish.

I suggest you request and review the relevant documents from your client before issuing any further threats of a court claim.

In summary, this is not a valid claim and you have no grounds to request payment from me.

Any further communication from yourself, your client or any other third party, other than confirming the PCN and debt claim has been cancelled, will be retained and used as evidence for issuing a counter claim of harassment at my discretion.

Regards.

emergencychimp
Umkomaas
QUOTE
Regards.

emergencychimp

Regards? That’s almost a term of endearment. These creeps are suing you - and you sign your formal response ‘Regards’?

I don’t understand.
nosferatu1001
3) is not true. They dint have to comply with pofa to request keeper data
emergencychimp
QUOTE (Umkomaas @ Thu, 21 Dec 2017 - 22:38) *
QUOTE
Regards.

emergencychimp

Regards? That’s almost a term of endearment. These creeps are suing you - and you sign your formal response ‘Regards’?
I don’t understand.

Ha. I can be the bigger man here.

Should I just go with
**** you,

emergencychimp

laugh.gif

QUOTE (nosferatu1001 @ Thu, 21 Dec 2017 - 23:21) *
3) is not true. They dint have to comply with pofa to request keeper data

Yeah. I was unsure about that part. It just made sense to me that for them to be allowed to request the registered keepers data, they had to jump through specific hoops. If they did not, then the data request was invalid. I guess it doesn't work like that. I'll remove the part about data protection laws.
nosferatu1001
It’s never worked like this. They can ask for keeper details to ask the keeper to tell them the drivers identity. This single purpose under kadoe has been perverted into taking keepers to court but meh, no one seems to care

The hoops to access electronically are simply to be member of an AOS. Nothing to do with pofa.
Umkomaas
QUOTE
Ha. I can be the bigger man here.

Should I just go with
**** you,

emergencychimp

laugh.gif

You could do, as long as you’re happy for a Judge to read that in the court papers you/the PPC might be submitting.

Stick to standard convention - Dear Sir/Yours faithfully. Dear Mr ..../Yours sincerely.

They’ll do nicely!
emergencychimp
Yes. Of course. I wouldn't actually do that. I was just kidding.
emergencychimp
So, a development on this.

Somewhat confusingly, Gladstones have sent me a court claim form. Despite knowing the NTD and NTK did not comply with POFA and issuing a defective LBC. Are they thinking I'll just get scared and pay up? Surely the court will instantly throw this out considering how inept the parking company and Gladstones have acted?

Now is all I need to do now is acknowledge the claim?
Jlc
Yes but you’ll have to follow the court procedures and submit a full defence. The court will not strike it out on their own volition.
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