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Mozzer82
Hi,

Can anyone advise please?

I received a PCN from a private parking company using ANPR, for leaving the site of a retail car park (not a national chain). I was not the driver. The car was in the car park for about 15 mins and the driver did buy an item from the shop. There was this signage.



I did not receive a first letter, only this final demand, which arrived 33 days after the incident.



I wrote a letter back:

You issued me with a final demand parking charge notice on [date], but I believe it was unfairly issued. Although I am the keeper of the vehicle, as you can see I was not the driver. I will not be paying your demand for payment for the following reasons:

The Notice to Keeper failed to meet the obligations of Schedule 4 of the POFA Act 2012. There was no initial parking charge Notice to Keeper received within 15 days of the alleged parking offence. Only a final demand, which arrived on [date], 33 days after the alleged offence, and which does not include details of any discount for prompt payment and or appeals processes for solving disputes. In fact its states that the opportunity to appeal has lapsed, but I was never afforded that opportunity in the first place.

In your final demand, you say you have written to me recently about the unpaid parking charge, but do not state the date on which the initial Notice to Keeper was sent. Speaking to the retailers on that row of shops where the driver bought a can of soft drink, indicates that it is common practice for you to send out final demand letters without an initial parking charge Notice to Keeper.

The Notice to Keeper does not state that you do not know the details of the driver, and does not invite me as the owner to pay or to tell you the driver's details.

In addition, the amount you have charged is not based upon any commercially justifiable loss to your company or the landowner. The £125 charge you are asking for far exceeds the cost to the landowner of the driver parking in the car park for approximately 15 minutes (15 minutes in total, not 15 minutes over the allowed 90 minutes). The online images you provide of the incident cover a less than 5 minute period. I therefore feel the amount you have charged is excessive.

If you choose to pursue me please be aware that I will not enter into any correspondence, and this will be the only letter you will receive from me until you answer the specific points raised in my letter.

A month later I received this letter from their Solicitors:



What should I do now please?

The Rookie
I doubt very much that ANPR witnessed an owner leaving the site, given that clearly it cannot.

Is the letter headed as letter before action/county court claim/court claim? If so a court claim is all but certain.

Write to ES NOW with a SAR for everything they hold on you so you know what the evidence of leaving site would be against the driver, that will get you the NtK to check for PoFA compliance in case the judge doesn't believe you didn't get it.

Jlc
QUOTE (Mozzer82 @ Tue, 25 Jun 2019 - 23:24) *
Only a final demand, which arrived on [date], 33 days after the alleged offence, and which does not include details of any discount for prompt payment and or appeals processes for solving disputes. In fact its states that the opportunity to appeal has lapsed, but I was never afforded that opportunity in the first place.

Interesting. Given the alleged breach then a NtD would normally need to be placed on the car at the time. (It could be done by post within 14 days for keeper liability but would be unusual approach)

Thus why the 33 days as they had to wait 28 days to access the DVLA. Some companies do not afford any appeal etc. when sending the NtK - it's quite aggressive (simply that the driver had the opportunity to appeal/pay - but keeper liability appears to have thrown out with the bath water)

But as noted SAR ASAP - particularly whether any photo's do show a PCN on the car...
Mozzer82
Thank you both.

Yes the letter is headed: LETTER BEFORE CLAIM

Will I as the keeper not the driver be able to request the details under a SAR? I suppose they will at least have to provide the letter they purportedly sent originally. But how will I know they've not just written it? And obviously I can't prove I never received it.

Photos on the parking company's website show the driver exiting the car park away from the row of shops.
Jlc
QUOTE (Mozzer82 @ Wed, 26 Jun 2019 - 12:03) *
Will I as the keeper not the driver be able to request the details under a SAR?

You, as the Data Subject, can request what they hold about you. (Irrelevant to whether you are keeper/driver)
nosferatu1001
Given they have your VRM associated with a parking charge, and YORU VRM is YOUR personal data, then yes you are entitled to all darta about the parking event that relates to you.
Mozzer82
Thank you.

I've sent a SAR to the parking company. I also replied to the solicitor enclosing my original letter to the parking company and the SAR, and requesting a paper version of the information sheet and reply. Do I just hang fire until I hear back from both / either?

Thanks.
nosferatu1001
No, what you shoudl do is
- tell the solicitor stating you require them to hold processing your data for 60 days, as you are awaiting a response to the SAR and once that is received you are *taking debt advice*

As they have no pressing need to litigate immediately, as they have X years left of the 6 years allowed under the Limitations Act, refusal of this reasonable request will result in a complaint to the SRA and will be prima facie evidence of unreasonable and vexatious behaviour, for whcih you will claim costs on the indemnity basis.
Mozzer82
Can you advise what to do next please?

To summarise I received a Final Demand NtK but I did not receive a first PCN following an ANPR, due to the driver (clearly not me) leaving the site whilst in a 'Free parking whilst in premises only' car park.
After replying to the Final Demand saying I hadn't received an initial PCN, I then received a Letter Before Claim from Gladstones Solicitors.
I made an SAR as advised here and received the camera stills showing the driver leaving the premises. These stills of the driver leaving the site do not have any cars or number plates in shot.

The data sent in response to the SAR also includes a copy of an initial PCN which details the amount due, the appeals process and the right to a discount if paid within 14 days. But I never received that letter.
If I had and had paid the fine within 14 days it would have been £60, within 28 days £100. The final demand letter which was the first notification I received stated £125. And the solicitor's letter has seen it rise to £160.

What should I do? I can't prove I didn't receive the initial PCN even though I didn't.

Thanks.
Sheffield Dave
Are the photos of the person leaving the site clear enough for it to be obvious to a judge that that person is not you?
Mozzer82
Yes they are and the Notes in the SAR say Ic1 male. I'm female!
The Rookie
Please share ALL the PCN so we can see if they have met the requirements for keeper liability. Obscure only personal details.
Mozzer82
Help! I am trying to post the first PCN, which I did not receive, but was sent to me in response to my SAR. However both TinyPic and ImageShack aren't allowing / working. TinyPic gives a code but says 'Image has been moved or deleted', and ImageShack says 'We're experiencing issues. Please try back later.'
nosferatu1001
Nothing is attached

Host EXTERNALLY using a site such as imgur, and copy and paste into THIS thread the "IMG" links they give you.
Mozzer82
I've tried but nothing is working for my image. Any other sites you can recommend?
nosferatu1001
Well I did tell yo uone - imgur.

Theres nothing we can do to help sort technical issues out for other websites.
Mozzer82
I know that thanks. It was just a question as none of them were working for me including imgur. The issue with TinyPic is fixed now.

Here's the first PCN, which I did not receive, but was sent to me in response to my SAR.



Many thanks for any advice as to what to do next.
ManxRed
Is there anything on the reverse? We're looking for language that references the Protection of Freedoms Act 2012.
nosferatu1001
You did not mention Imgur at all, so I could not know you had tried it. You specified two other sites.

Indeed, show us the back. the front has SOME POFA language such as ID'ing the creditor, but lacks the required warning of 28 days starting the day after hte notice is given...
The Rookie
it WILL be missing period of parking, that's a guarantee.
ostell
Invitation 9(2)(e) is not in the format required, no warning of keeper liability 9(2)(f). There's probably more but no keeper liability
nosferatu1001
That warning mya be on the back
We dont know
We havent seen the back.
Mozzer82
Thank you everyone.

This is the back of the PCN - which I never received.



And this is the back of the Final Demand - which was the first correspondence I received.

ManxRed
OK, so they are not using the Protection of Freedoms Act to hold the Keeper liable for the charge. They are presumably using an assumption that the Keeper was driving, but they have nothing they can use to make that assumption. The paperwork doesn't comply with the Protection of Freedoms Act, so they cannot try introducing it now, it's too late for that.

A simple 'take it up with the driver and leave me alone' letter should probably be sent. I note that they state that an appeal is no longer allowed, but this letter won't be an appeal, it'll be a simple 'go and speak with the driver about this, who I am not legally obliged to name and won't be doing so. Remove my personal data from your records and good day to you' letter. There are a few short and sharp examples floating around on here.
Mozzer82
Thank you.

Do I send this letter to the parking company or the solicitor? And can you point me in the right direction of an example letter please. I have not been able to find one.

In my response to the solicitor's letter before claim, I requested a paper version of the Information Sheet and Reply Form, which the letter said I was entitled to. I have heard nothing back.

I am very concerned that the next I will hear about this is re court. Part of me wants to make it go away and part feels it is so unjust as I never received a first PCN, although they have provided a copy of it in the SAR but not proof of postage.

What should I be doing next please?
nosferatu1001
Send to the solicitor

You could just draft something - short and sweet.
Mozzer82
Thank you.

Would something along the lines of this be appropriate please?

Dear Sir / Madam,

Having received my data and personal information held by your client in relation to the above incident, I note their PCN (which I never received) and Final Demand letters do not comply with the Protection of Freedoms Act, and as such they cannot hold me as the Registered Keeper liable for the charge. Their evidence shows clearly I am not the driver.

I would also like to draw your attention to the fact that, having requested a paper version of the Information Sheet and Reply Form from you on 26 June 2019, as you indicated I was entitled to do, I have as yet received neither.

Therefore, please take this matter up with the driver, who I am not legally obliged to name and will not be doing so, and remove my personal data from your records and instruct your client to do likewise.

Yours faithfully,
Redivi
Dear Sir

Ref ****

I refer you to my previous letter dated **** in response to your Letter Before Claim
It is unacceptable that, more than four weeks later, I have still not received the Information Sheet and Reply Form
Please address your failure immediately

I admit to some surprise at receiving your Letter Before Claim unless you are in the habit of sending such correspondence without inspecting your clients' documents

Your client knows from its own photographs that I was not the driver
It has never acquired or even claimed any right to recover payment from me as keeper in accordance with the Protection of Freedoms Act.

The legal action that you threaten not only has no prospect of success but has no purpose other than to cause alarm and result in a payment that is not owed
I suggest that you educate your client regarding the relevance of CPR 27.14(2g) to its behaviour

Yours Faithfully

Mozzer82
Many thanks Redivi.

I received this in the post today. How should I respond please? Send the letter as above without the reference to the information sheet and reply form? Should I fill in the reply form and send with a covering letter?

Thank you.



nosferatu1001
Yes, you send it

Theyre lying. The Notice to Keeper MUST be served (given); if it is not there is no liability
Until the Ntk Iis served there can be no liabiltiy.


I would complain twice to the SRA.
Mozzer82
Thanks.

Please can I clarify?

Gladstones say they did serve a NtK (as evidenced by sending me a copy), as it was posted to the same address as the parking company's final demand and Gladstones subsequent letters. But I genuinely didn't receive it, and they say I have not given a reasonable explanation as why I didn't. What can I say in response to that? Do I need to say anything? I don't know why it never popped through my door, unless as I suspect it wasn't sent.

Gladstones also say that I was instructed to transfer liability to the driver. And what do they mean that I became liable before the correspondence was sent? I wasn't the driver.

As the NtK did not warn me I would be liable for the charge if it remained unpaid and the parking company was not informed of the driver details, does this mean I cannot be held liable?

Is this response to Gladstones appropriate please, in light of their most recent letter?

Thank you.


Dear Sir / Madam,

I write in response to your letter dated [date].

Having received my data and personal information held by your client in relation to the above incident, I admit to some surprise at receiving your original Letter Before Claim, unless you are in the habit of sending such correspondence without inspecting your clients' documents?

Your client knows from its own photographs that I was not the driver. However it has never acquired or claimed any right to recover payment from me as the Registered Keeper, in accordance with the Protection of Freedoms Act.

Since neither the PCN (which to reiterate I never received, although I have no idea why - perhaps due to a postal error at Royal Mail or an error in sending by your client), nor the Final Demand letter, comply with the Protection of Freedoms Act, and your client's evidence shows clearly I am not the driver, they cannot hold me as the Registered Keeper liable for the charge.

Therefore, please take this matter up with the driver, who I am not legally obliged to name and will not be doing so, and remove my personal data from your records and instruct your client to do likewise.

The legal proceedings that you threaten not only have no prospect of success, but have no purpose other than to cause alarm and result in a payment that is not owed.

Yours faithfully,
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