Hi All,

I have received this NTK from Ace Security Services. Please suggest if my response is appropriate.

Massive thanks in advance

Response:

Appeals Department,
Ace Security Service,
PO Box 365,
Tadworth
KT20 9EN
29 August 2017

Your reference XXX

Dear Sir/Madam,

I have received your Notice to Keeper dated 17 August 2017, and I’m replying as registered keeper of the vehicle referred to in your communication during the time you mentioned in the schedule of information. I will reply as per the Ministry of Justice advised PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOL as I find your interpretation of the ‘Rules’ unhelpful.

Defendant’s Full Response

This matter is currently in an appeal.

I do NOT accept your claim.

I reject your claim on the following grounds:-

1. As per your notice, the vehicle was parked at XXXX, in a manner that whereby the driver became liable for a parking charge. I have not been provided any photographic proof or evidence demonstrating that the vehicle was parked on the time, date and location as mentioned in the notice. Should you choose to provide evidence, please provide it along with the rationale do you believe that this reason – “Not Displaying a Valid Permit” was applicable.
2. I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are not appropriately placed and not easily readable to drivers. There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.
3. Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me. I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA.

4. You state that you’re acting on the land as the owner of the land, on the basis of contractual right to occupy or to have possession of the land, or acting as agent of the landowner. I request the following documents from you -

A. I request the full name and address of the land owner

B. If you are not the landowner, I request to see full copies of the Ace Security Services or Pace Recovery and Storage Ltd.’s contract with the land owner, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client, and the definition of your status as agents or contractors and your assigned rights (if any). In particular, I would like to see evidence that the land owner gives you the authority to pursue outstanding parking charges and permission to take these through the courts. You may redact any commercially sensitive information. I will not accept a Witness Statement in place of the full contract.

C. I request to see proof that your Company pays the Land owner a large sum of money each week

D. I request to see proof that any signs and ANPR cameras have the relevant planning permission from the local authority

E. I request to see a map confirming that any signs were adequate to form a contract

F. I request a true breakdown of your costs and how you arrived at the figure of £100.00.

G. The legal basis of your charge, you have offered very little information or details on why you wish to issue me a parking charge notice (i.e. breach, trespass or contractual fee). As the registered keeper of the vehicle, I cannot be expected to guess the basis of your allegations.

i. If alleging breach of contract, please supply a breakdown of your alleged 'loss' and state the intention of your enforcement (i.e. deterrent or revenue)

ii. If alleging trespass, enclose further evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the land owner

iii. If alleging 'contractual fee', I request a VAT invoice by return, and your explanation of how you can allow drivers to park 'in breach' for a fee when your client originally contracted you in order to disallow and deter, not allow and profit from, unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC in the case of Civil Enforcement Ltd v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal)

H. Please supply proof of your locus standing to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention

I’m responding to your Letter before Action in good time, but in examining your compliance with the Practice Direction and Pre-Court Protocol, I find that your letter to me is sadly lacking, in various elements. Your letter should contain the following: -

1. The Basis on which the claim is made

2. How the charge was calculated
3. The evidence of parking the vehicle in a location where there was a contravention against clearly displayed terms and conditions for the reason provided in the notice.

Your letter also fails on Proportionality -
“A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.”

Yours sincerely,
XXXX

Lots of issues with that.

Do you actually have a Letter Before Claim? You only seem to mention receiving a NtK?

Seems like they already have accessed the DVLA...

I had a CN stuck on my windscreen and that is it. I had ignored the CN as it was suggested in one of the earlier topics to ignore the CN till NTK is received....

You are only appealing a NtK, not producing a full blown court defence.

Search other Ace and IPC topics and have another go. Don't forget to include the sentence about alternative dispute resolution.

Post it here for comments before you send it.

KISS - Keep It Simple, [Stupixxxx] Sir!!!!

Thanks all till now. I have used this as a response:-

"......
Appeals Department,
Ace Security Service,
PO Box 365,
Tadworth
KT20 9EN
29 August 2017

Your reference XXXX

Dear Sir/Madam,

I have received your Notice to Keeper dated 17 August 2017, and I’m replying as registered keeper of the vehicle referred to in your communication during the time you mentioned in the schedule of information. I will reply as per the Ministry of Justice advised PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOL as I find your interpretation of the ‘Rules’ unhelpful.

Defendant’s Full Response

This matter is currently in an appeal.

I do NOT accept your claim.

I reject your claim on the following grounds:-

1. As per your notice, the vehicle was parked at Boardwalk Place, E14, in a manner that whereby the driver became liable for a parking charge. I have not been provided any photographic proof or evidence demonstrating that the vehicle was parked on the time, date and location as mentioned in the notice. Should you choose to provide evidence, please provide it along with the rationale do you believe that this reason – “Not Displaying a Valid Permit” was applicable.
2. I believe that your signs fail the test of 'large lettering' and prominence, as established in ParkingEye Ltd v Beavis. Your unremarkable and obscure signs were not seen by the driver, are not appropriately placed and not easily readable to drivers. There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me a POPLA code, or cancel the charge.
3. Should you obtain the registered keeper's data from the DVLA without reasonable cause, please take this as formal notice that I reserve the right to sue your company and the landowner/principal, for a sum not less than £250 for any Data Protection Act breach. Your aggressive business practice and unwarranted threat of court for the ordinary matter of a driver using my car without causing any obstruction nor offence, has caused significant distress to me. I do not give you consent to process data relating to me or this vehicle. I deny liability for any sum at all and you must consider this letter a Section 10 Notice under the DPA.

4. You state that you’re acting on the land as the owner of the land, on the basis of contractual right to occupy or to have possession of the land, or acting as agent of the landowner. I request the following documents from you -

A. I request the full name and address of the land owner

B. If you are not the landowner, I request to see full copies of the Ace Security Services or Pace Recovery and Storage Ltd.’s contract with the land owner, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client, and the definition of your status as agents or contractors and your assigned rights (if any). In particular, I would like to see evidence that the land owner gives you the authority to pursue outstanding parking charges and permission to take these through the courts. You may redact any commercially sensitive information. I will not accept a Witness Statement in place of the full contract.

C. I request to see proof that your Company pays the Land owner a large sum of money each week

D. I request to see proof that any signs and ANPR cameras have the relevant planning permission from the local authority

E. I request to see a map confirming that any signs were adequate to form a contract

F. I request a true breakdown of your costs and how you arrived at the figure of £100.00.

G. The legal basis of your charge, you have offered very little information or details on why you wish to issue me a parking charge notice (i.e. breach, trespass or contractual fee). As the registered keeper of the vehicle, I cannot be expected to guess the basis of your allegations.

i. If alleging breach of contract, please supply a breakdown of your alleged 'loss' and state the intention of your enforcement (i.e. deterrent or revenue)

ii. If alleging trespass, enclose further evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the land owner

iii. If alleging 'contractual fee', I request a VAT invoice by return, and your explanation of how you can allow drivers to park 'in breach' for a fee when your client originally contracted you in order to disallow and deter, not allow and profit from, unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC in the case of Civil Enforcement Ltd v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal)

H. Please supply proof of your locus standing to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention

I’m responding to your Letter before Action in good time, but in examining your compliance with the Practice Direction and Pre-Court Protocol, I find that your letter to me is sadly lacking, in various elements. Your letter should contain the following: -

1. The Basis on which the claim is made

2. How the charge was calculated
3. The evidence of parking the vehicle in a location where there was a contravention against clearly displayed terms and conditions for the reason provided in the notice.

Your letter also fails on Proportionality -
“A pre-action protocol or this Practice Direction must not be used by a party as a tactical device to secure an unfair advantage over another party. Only reasonable and proportionate steps should be taken by the parties to identify, narrow and resolve the legal, factual or expert issues.”

I had submitted this letter online through online appeals form earlier. Having realised that the site doesn’t provide acknowledgement of submission, I have captured a screenshot of the page where I have submitted the appeal online along with timestamp (enclosing the screenshot as evidence). Further I have sent this letter through physical recorded delivery as an additional proof of delivery. Please respond with your acknowledgement and your next proposed step in this matter. I expect a full response from you within 14 days. Without this, I shall consider this matter closed and no further action will be taken by either party.

Yours sincerely,

XXXX
........................."




TO THIS LETTER, THEY RESPONDED....

Dear XXXX,

We are in receipt of your two emails and letter in regards to Charge Notice XXX issued to vehicle registration XXX. Please be aware this Charge Notice is not on appeal, nor has it been placed on hold. As stated on the Notice to Keeper you have received the driver has 28 days to appeal the Charge Notice from the date of issue, after that time the right to appeal has surpassed. However, if you have an exceptional circumstance as to why you have not contacted us within the 28 days to appeal we may consider your email as an appeal.

Please also note, as stated on the Notice to Keeper, all photographs taken of your vehicle are available on www.acepay.co.uk, where you will see that our warning sign is very large and writing is very clear. You are not entitled to any details of the landowner and will only be subject to such information should this matter reach court. As you have quoted the Supreme Court Case Beavis Vs Parking Eye you should be fully aware that pre-estimate of loss is no longer required, as the Charge Notice was issued under a contract. Therefore our warning signs make it perfectly clear the driver agrees to pay £100 if they fail to adhere to the terms and conditions for parking.

You will not be supplied with any form of Alternative Dispute Resolution if you do not comply with our terms and conditions for appeal.

In response to your reference to Section 10 of the Data Protection Act, you have stated you wish us to stop processing your data. However, in order for this request to be properly considered you must state why it is causing you substantial damage or distress, as well as what you require in order for us to stop this from happening. At present it is necessary for us to process your data because it is used in relation to a contract, meaning you have no right to object.

You now have 7 days from the date of this email to comply with our terms and conditions for appeal. Failure to supply the required information by 15.09.17 will result in your emails and letter being disregarded for failure to comply with our terms and conditions for appeal and prompt payment will be required to avoid legal action and additional costs.

Yours Sincerely,

Appeals Department
Ace Security Services
P.O Box 365
Tadworth
KT20 9EN
..........................."



PLEASE SUGGEST WHAT SHOULD I DRAFT NEXT....

How about actually telling us what happened? They won't go away and may issue a court claim.

Most of their reply is correct.

Did you actually appeal?

Hi All, sorry if I have not covered this earlier.


On 16 jul 17, I had parked my car in the visitor car park area and had stepped out only for a quick look to check properties around. On my return I found a CN stuck on my windshield to pay the fine. I looked up on this forum and it was suggested to ignore the CN till an NTK arrives. After the NTK came through (pics attached earlier), I responded using the email stated above. Subsequent to this, they responded with the email above.

Please let me know your thoughts. Thanks.

Notwithstanding you've revealed the driver (but they appear to have substantively complied with PoFA anyway) it appears the driver accepted the terms on the signage as the car was parked?

Do you believe the driver's identity has been revealed here? What do you believe are the best next steps?

Post #8 in this thread.

On the face of it you appear to have accepted the terms of the parking. Can we see pictures of the signs? (There may be a 'forbidding' sign - i.e. it's not offering a contract but many Judges don't like this argument - look here)

They are quite litigious (here) so a court claim may well follow.

Attaching the signage that was there...

Well the £100 is prominent!

Were there sufficient signs?

Actually its a contractual breach model. You cannot contract to pay an amount for breaching a contract. Its an old sign.

It's a mish mash and after explicitly mentioning breach goes on about per 24 hours. This is incompatible but the bottom line is that they (or the IAS) won't relent or uphold any appeal.

It is quite likely they will raise a claim and it will be up to a Judge to decide. It could go either way and some Judges aren't keen on discussing such contractual torture and will go with 'Beavis'. Also, the damage will be over £200.

Urgently edit post #8.

I would report this to the IPC and DVLA:



They are not lawfully allowed to deny you ADR, and your letter was clearly an appeal from the registered keeper, which MUST be considered and is never at an operator's discretion to ignore or tell you how to appeal.

david.dunford@dvla.gsi.gov.uk

More complaints need to be served to the IPC, the BPA are getting complaints like this, where keepers are being denied appeals. The IPC needs to get them too, and always referring it to David Dunford too. If they are trying to hold a keeper liable then they MUST allow that keeper to appeal.

This can be argued to be true, and it was indisputably (in 2012) the will of the DVLA and Parliament, because the POFA Schedule 4 was only allowed to be used by this scum industry, not on 1st October 2012, but weeks later, when an 'independent appeal' service was in place (and not before).