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Messages - b789

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16
Sorry, I forgot to answer your question about templates. It often depends on which ATA the PPC belongs to. In this case it is Excel and they are members of the IPC. Herein, the problem lies with the various steps in the process of appealing and defending any claim.

I'm not sure if you were asked about the landowner of the car park. Is it a part of a hotel you stayed at? WE always advise victims to start with Plan A. Plan A requires you to find out who owns the car park (it is not Excel) or who manages the land that the car park is on (again, it is not excel). If it a hotel where you were a patron, then a complaint as high up the management food chain asking them to get the PCN cancelled is easiest. You can continue with Plan A all the way up the start of Plan D.

Plan B is the initial appeal to the operator (Excel). No need to rush this but don't miss the IPC 21 day deadline. This appeal is more likely than not going to be rejected no matter how well it is argued. You are not dealing with a customer service led organisation. You are dealing with ex-clamper thugs out to sea you for as much as they can.

Plan C can only be carried out if Plan B has been tried and failed. However, as Excel are members of the IPC, any appeal to them is also likely to fail, irrespective of how well you argue the facts. Some on here would advise that you try them anyway. Personally, I wouldn't bother but it is up top you whether you think you have a chance.

Plan D is when this is likely to finally be cancelled. Plan D is after a period of limbo after Plan C where you weather a storm of useless debt collector letters. They ay seem scary but they are really powerless to do anything. They are employed solely to try and scare the low-hanging fruit on the gullible tree into pooping their pants and paying up the now inflated charge.

Once you have weathered all the useless debt collector letters, Excel may or may not engage a firm of roboclaim solicitors to send you a Letter of Claim and an actual claim. This is where you are most likely to win. Whilst they issue the claim, they really don't want a truly independent arbiter, a judge, to decide whether the debt they say you owe them is valid or not.

We would provide a robust defence template for you to use. You only need to edit two paragraphs. Eventually, they will either discontinue or you will have a judge decide. In any event, whatever they put in their claim, even if you lost, you'd pay less than the claim amount. There is no danger of a CCJ because as long as the amount is paid in full within 30 days there is no record of it on your credit file. That is a worst case scenario.

For now, have a go at what you think is a good appeal to Excel and show us. We will critique it and make suggestions as we go forward. You will learn a lot from this experience.

17
I will repeat here what I just posted on another thread and it is what I tell anyone who is concerned about the bribe discount. Do not rush this as it is a steep learning curve.

You need to get into your understanding that the £40 "discount" is really a bribe to get the low-hanging fruit on the gullible tree to think they are getting a good deal and so pay the scammers without having to go though all the machinations required to appeal etc.

It is your money and it is up to you if you think you owe an unregulated private parking company anything at all. If you believe that they are acting in good faith and their "invoice" is fair and proportionate because you have heinously breached their terms and conditions, you are free to fund their extortion racket.

If you are not a "fool and their money" and believe that the PCN is unfair and are prepared to put up with a bit of a fight against intellectually malnourished ex-clampers and their Klingon roboclaim partners, then we will assist you all the way. There is never a 100% guarantee that you will win but there is a very good track record of the people who come here and over on MSE of winning these unfair PCNs. Between us, there is a huge amount of experience in dealing with these unfair PCNs.

If you do decide to fight an unfair PCN then you will gain a very useful life/leaning experience that will be useful to you and your friends and family in the future. Our education system doesn't teach anything about civil law and this is all about that.

These ex-clamper, unregulated private parking companies issue in excess of 30,000 PCNs a DAY! They rake in over £2 billion a year. They are still unregulated and make up their own rules. We are fighting these scammers and cowboys (Hansard). Unfortunately, the vast majority of victims either just pay up (bribed) or ignore and end up paying much more later when they get scared by their lack of knowledge on how to fight this. The majority of those we advise on who follow the advice and fight back end up not paying a penny.

The choice is yours. (And yes, I am biased)

18
Private parking tickets / Re: Euro Parking County court letter
« on: May 22, 2024, 05:49:26 pm »
Having gone back through the thread and read your Defence and WS, you have a good chance if you are able to raise some points that should have been expanded on in the WS. When is the hearing? Which court?

It is interesting that the dispute resolution hearing judge pointed out the serious flaw in Gladstone's filing of the claim in that they never set out the conduct that amounted to the alleged breach. The whole point of including the CEL v Chan appeal court judgment (which should have been included in the original defence as a "Preliminary matter" but wasn't) is that it is persuasive and the judge should have thrown the claim out for that breach alone.

Obviously, he knew about it and you should raise this matter as the very first thing at your next hearing. You need to ask the judge to dismiss the claim on that basis. However, if the judge disagrees, then you must raise the following issue as it was mentioned in your defence but not explained very clearly:

Whilst you have admitted being the driver and therefore they are not relying on PoFA to hold you liable as keeper, they did so in the original NtK (even though it was flawed in that respect). According to PoFA 2012 4(5), if they had intended to rely on the Act, the maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)(c) or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified). The maximum sum they can claim is £100 as shown in the original NtK.

It may be a lot to try and take in but you should make the effort to read and understand what you are going to be arguing.

The claimant's current claim is for £170 (or whatever amount is shown in the first box of the amount claimed on the N1SDT claim form), which exceeds the amount of the unpaid parking charges as stated in the original notice. The claimant’s attempt to claim an unlawful amount constitutes an abuse of process and should not be allowed to proceed. You should respectfully request the judge to dismiss the claim on the basis of the claimant’s contravention of Schedule 4, Paragraph 4(5) of PoFA and thereby CPR 1.1, CPR 3.4(2)(a) and (b) and CPR 27.14 and to award costs to the defendant for having to defend against this improper claim.


CPR Breaches and Abuse of Process:
    * CPR 1.1 - The Overriding Objective:
    * The claim is not being dealt with justly or proportionately. The excessive amount claimed puts the defendant at a disadvantage, increases unnecessary costs, and is disproportionate to the original charge.
    * CPR 3.4 - Power to Strike Out:
    * CPR 3.4(2)(a): The claim for £160 (or whatever amount is shown the clim form) has no reasonable grounds, as it exceeds the lawful amount stipulated by PoFA 4(5).
    * CPR 3.4(2)(b): The claim represents an abuse of the court’s process by attempting to claim an amount not legally recoverable, thus obstructing the just disposal of proceedings.
    * CPR 27.14 - Costs on the Small Claims Track:
    * CPR 27.14(2)(g): The claimant’s behaviour in pursuing an excessive and unlawful amount is unreasonable, warranting the claim to be struck out and costs awarded to the defendant.

All the other breaches that you have put in your defence and expanded on in your WS such as no contract formed due to lack of or obscured and unlit signs need to be highlighted with reference to the particular parts of their ATA CoP that have been breached.

Make sure you create a set of notes as bullet points for yourself. Know where every reference to anything is in your WS and you can refer the judge to it. You've already been to court once for this so you now know that it is not quite as daunting as you expected.

Did you include a costs order with your WS? If you win, you should remember to ask for your costs which are up to £95 for loss of earnings and your transport costs and parking etc.

19
Please take this as constructive criticism. It's a bit confusing when we are shown a letter and the OP says "Have hopefully found the owners of the land and sending their MD a message." It sounds like they are telling us that they have found someone to complain to and this is what they intend to send, when in fact they have actually sent it.

If it was intended for the MD of the company that owns the land, then it is totally inappropriate  and it reads like an appeal to the PPC.

What I provided after that is what you should send to the PPC as an appeal. I have explained why some of the terminology you have used is wrong. You are now involved in a civil law legal process and whilst learning from mistakes is not a bad thing, when it comes to legal matters, it can be fatal to your case.

As I respond to at least 40 other cases a day, I am sometimes abrupt or even too sarcastic and for that I apologise. However, advice is freely given in an attempt to help the victims of these unfair PCNs challenge the ex-clampers that are trying to extort money from them.

Without trawling back through the thread, you are trying 4 plans. Plan A is to get the landowner to tell the PPC to cancel the PCN. Plan B (if there is still time) is to appeal to the PPC. Plan C (if Plan B is unsuccessful) is to appeal to the PPCs independent appeals service. Plan C is only possible if Plan B has been actioned.

Plan D is if/when this goes as far as a court claim. That is very often the best plan as it involves a trully independent arbiter, a judge, to decide whether you owe the PPC a debt for an alleged breach of contract.

Every step of the way you will be advised on what you need to do and what you can ignore. It is a process and we are experienced in what goes on and why.

The charge is initially £100 reduced to £60 if paid, uncontested, within 14 days. After 28 days they will usually add on a fake £60-£70 as "debt recovery fees". If it goes to a court claim it will go to £160/£170 + interest at 8%/annum calculated at a flat rate on a daily basis from day 28 plus a £35 court fee and £50 fixed legal costs. Expect a claim for around £250.

If it went to hearing and you lost, it is likely to be less than that because, as long as you behaved reasonably in the process, the judge should disallow the fake added DRA/damages fee and also any interest. In reality, if you were so unfortunate as to lose at that stage, you'd owe less than £200. Even after losing at a hearing, you would be in no danger of getting a CCJ. As long as the CCJ is paid within 30 days of judgment, there is no record of it on your credit file. It is completely expunged.

We are a long way off from that scenario, should it ever get that far. What these scammers rely on is their victims being that low-hanging fruit that will capitulate at the first signs of legal action and end up paying more than if they were to go to court and lose. That or their victims just failing to do anything and then they get a CCJ by default.

The number that actually fight these charges through this and the MSE forum are tiny in the overall scheme of things. Most have no idea about the civil litigation process and their rights. This is where we come in and do it without charge in our spare time.

Until the Government finally bring in the Parking on Private land (Code of Practice) Act 2019, this is the only way that this unregulated industry is going to face any resistance. Even then, it is likely that there'll need to be independent resistance to the PPCs.

20
You need to get into your understanding that the £40 "discount" is really a bribe to get the low-hanging fruit on the gullible tree to think they are getting a good deal and so pay the scammers without having to go though all the machinations required to appeal etc.

It is your money and it is up to you if you think you owe an unregulated private parking company anything at all. If you believe that they are acting in good faith and their "invoice" is fair and proportionate because you have heinously breached their terms and conditions, you are free to fund their extortion racket.

If you are not a fool and their money and believe that the PCN is unfair and are prepared to put up with a bit of a fight against intellectually malnourished ex-clampers and their Klingon roboclaim partners, then we will assist you all the way. There is never a 100% guarantee that you will win but there is a very good track record of the people who come here and over on MSE of winning these unfair PCNs. Between us, there is a huge amount of experience in dealing with these unfair PCNs.

If you do decide to fight an unfair PCN then you will gain a very useful life/leaning experience that will be useful to you and your friends and family in the future. Our education system doesn't teach anything about civil law and this is all about that.

These ex-clamper, unregulated private parking companies issue in excess of 30,000 PCNs a DAY! They rake in over £2 billion a year. They are still unregulated and make up their own rules. We are fighting these scammers and cowboys (Hansard). Unfortunately, the vast majority of victims either just pay up (bribed) or ignore and end up paying much more later when they get scared by their lack of knowledge on how to fight this. The majority of those we advise on who follow the advice and fight back end up not paying a penny.

The choice is yours. (And yes, I am biased)

21
Here is how you break down the unfairness of the 5 minute requirement in the "contract"

In this situation, the 5-minute requirement for payment can be considered both an unfair term and potentially an instance of impossibility, especially within the context of the CRA and principles of contract fairness. Here’s a detailed analysis:

  Impossibility

1. Objective Impossibility: The requirement to pay within 5 minutes of entering the land can be argued as objectively impossible due to several factors:
  - Physical Constraints: It often takes more than 5 minutes just to find a parking spot, locate a sign, and read and understand the terms and conditions.
  - Practical Constraints: If the payment method involves downloading an app, setting up an account, and entering payment information, this process typically takes longer than 5 minutes.
 
2. Lack of Reasonable Opportunity: The terms were not presented in a manner that allowed the driver to comply within the stipulated timeframe, thus making compliance practically impossible under normal circumstances.

  Unfair Terms

Under the Consumer Rights Act 2015, the following aspects make the 5-minute requirement potentially unfair:

1. Transparency and Clarity: Terms and conditions must be transparent and clearly communicated to consumers. A sign with tightly packed text and confusing information does not meet this standard. It should be reasonably readable and understandable at a glance.
 
2. Fair Dealing: Terms that place an undue burden on the consumer or are unreasonably advantageous to the business can be deemed unfair. The requirement to pay within 5 minutes, especially when it’s practically impossible to do so, constitutes an unfair term.

3. Good Faith: The principle of good faith requires that terms are not only clear but also fair and not misleading. The imposition of a heavy penalty for something that the consumer could not reasonably comply with violates this principle.

  Legal Protections and Remedies

Given the circumstances, the driver has several potential legal arguments and protections:

1. Challenge the PCN: The driver can contest the parking charge notice, citing the impossibility of complying with the 5-minute payment rule due to the unclear signage and the practical time required to find a parking spot and understand the terms.

2. Unfair Terms Legislation: The driver can argue that the 5-minute rule is an unfair contract term under the Consumer Rights Act 2015. The Act protects consumers from unfair terms in contracts they have not had the opportunity to negotiate.

  Conclusion

The 5-minute payment requirement appears to be both an impossibility and an unfair term. It imposes an unreasonable and practically unachievable condition on the driver, leading to an unfair penalty. Challenge the parking charge notice on these grounds, citing both the practical impossibility of compliance and the unfair nature of the term under applicable consumer protection laws.

The above is just on a single point. There are more.

22
The OP may be overthinking this. Not only are the arguments above by @DWMB2 all valid, there are a host of other breaches too. The Excel signs are terrible and have often been cited in cases that actually went to court and were thrown out because charge is not adequately brought to the attention of the driver.

Also, there's the CRA breaches of unfair terms in a contract. Section 62 states that an unfair term of a consumer contract is not binding on the consumer.

It defines ‘unfair’ terms as those which put the consumer at a disadvantage, by limiting the consumer’s rights or disproportionately increasing their obligations as compared to the trader’s rights and obligations. Is the requirement to drive past the ANPR camera, locate a parking bay, find a terms sign and have to be able to read all of it before deciding whether to accept it and once accepting it having to download an app, set up a payment and then pay for the service 'fair' if it only gives you 5 minutes to do so, even if you already paid for the service?

There is so much more to it. The fact that an anonymous person claiming to be a barrister on some forum tells you that you have no chance is a bit galling. Between here and the MSE forum there is more knowledge and experience in dealing with these private parking matters than any other firm of lawyers.

The whole unregulated parking industry is run by ex-clamper thugs and is designed to get low-hanging fruit on the gullible tree to capitulate and pay up at the first threat. We have been defeating these scammers for years and Excel is no stranger to that group of cowboys.

23
There is nothing there that justifies the issuance of an NtK. Your evidence shows that the driver paid for parking at 23:47 on 3rd May. The Ntk shows that the driver entered the car park at 23:37 on 3rd May.

Payment receipt shows that the permit was valid for 12 hours until 11:47 on 4th May. The NtK shows that the vehicle left at 09:30 on the 4th May.

The NtK says that the alleged contravention is that the driver failed to purchase a permit or did not do so within the time permitted. The receipt shows that a permit was purchased. Therefore the only conclusion can be is that Excel are trying to con you out of £100 because they deem the driver did not purchase the permit quickly enough.

Is there any mention in the terms signage that a permit must be purchased within a set time?

Also, it says the contravention time was 09:30 on the 4th May. If the vehicle had not contravened any of the permint terms before that time, how can there have been any contravention? The photo evidences the car leaving the car park at that time.

24
You have to appeal to Britannia first. You will only get an opportunity to appeal to POPLA if Britannia reject your appeal (which they will).

In your appeal to Britannia, irrespective of whether you paid or not, you should not be the liable person to pay. The liable person is the driver. Britannia have no idea who the driver is. You, as the keeper, are under no legal obligation to reveal the identity of the driver and Britannia are not allowed to simply presume or infer that because you are the keeper, you must also be the driver.

If the NtK had contained the all the required wording of PoFA and had been delivered within the required timescale, Britannia, because they don't know the identity of the driver, pass that liability to you, the keeper. However, they have failed to fully comply with the strict requirements of PoFA and so, cannot pass that liability on to you, the keeper.

Because they cannot rely on the provisions of PoFA to hold you, the keeper, liable, the burden of proof falls on Britannia to prove you were also the driver. The only way they can get that proof is if you tell them you were the driver. Remember, you are under no legal obligation to identify the driver, whether it was you or not.

So, appeal to Britannia with the following:

Quote
This is an appeal by the registered keeper - No driver details will be given. Please do NOT try the usual trick of asking for driver details in order to get around the fact your NtK does not fully comply with the strict requirements of PoFA. As there is no keeper liability, therefore, liability cannot flow from the driver to the keeper and so, is an automatic win at POPLA. Please cancel the notice or issue a POPLA code at which point you will auto withdraw.

No need to expend a lot of wasted effort at this stage as they will reject the appeal, no matter what. No need to inform them about which specific element of PoFA they have failed. They will just say that their NtK was PoFA compliant. It is at POPLA stage that your best chance of having this cancelled.

25
The full POPLA decision:

POPLA Case Number
2413353469

Decision
Successful

Assessor Name
Gayle Stanton

Assessor summary of operator case
The operator has issued the PCN because the vehicle was parked on the site and the pay and display permit did not cover the date and time of parking.

Assessor summary of your case
The appellant has raised the following grounds of appeal:
• The signage is inadequate
• The Notice to Keeper (NTK) does not meet PoFA requirements.
• The NTK does not accurately describe the circumstances so there is no keeper liability.
• The operator has not shown that the individual it is chasing is the driver.
• No landowner authority
• Grace period- Non compliance with the British Parking Association (BPA).
• No evidence of the period parked.
• Images of the vehicle contained within the NTK are not compliant with the BPA.
• The ANPR system is not reliable or accurate. The appellant has provided a document detailing their appeal and they have commented on the operator’s case file.

Assessor supporting rational for decision
In terms of POPLA appeals, the burden of proof rests with the operator to provide clear evidence of the contravention it alleges occurred, and consequently, that it issued the PCN correctly. I am allowing this appeal, with my reasoning outlined below:

The Images of the vehicle contained within the NTK are not compliant with the BPA. The appellant has stated in the comments that although the operator has provided full date stamped photographs in the case file, the images on the NTK are not compliant.

I acknowledge the appellant’s grounds of appeal and I have reviewed the evidence provided by the operator. The British Parking Association (BPA) Code of Practice Section 21.5a states: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

I have reviewed the copy of the NTK provided by the operator and I am not satisfied that the images of the vehicle number plate on the NTK are compliant with Section 21.5a of the BPA Code of Practice. These images are not date stamped and after seeing the full images in the case file they appear to have been digitally altered or cropped to fit on the NTK. This is especially apparent on the colour image on the NTK. The image recorded of the vehicle entering the site is also not very clear.

I note that the appellant has raised further grounds for appeal in this case, however as I have allowed the appeal for this reason, I have not considered them. As such, I conclude that the PCN has been issued incorrectly. Accordingly, I must allow this appeal.

26
It doesn't matter what is on file on the website. Any evidential photos on the NtK must not have been altered or cropped in order to fit.

This has already been seen to be a winning point at POPLA case 2413353469 where Assessor Stanton noted: "I have reviewed the copy of the NTK provided by the operator and I am not satisfied that the images of the vehicle number plate on the NTK are compliant with Section 21.5a of the BPA Code of Practice.
These images are not date stamped and after seeing the full images in the case file they appear to have been digitally altered or cropped to fit on the NTK. This is especially apparent on the colour image on the NTK."

27
A Quick Look at the NtK shows PoFA failure to specify any “period of parking” in breach of 9(2)(a) and (c ). Also, the time stamp in the photo on the NtK appears to have been cropped which is a failure of BPA CoP 21.5a.

28
Dear Sir,

I am writing in response to your recent communication where-by you are looking to fine me as the owner of the vehicle xxxxx which had, according to your PCN breached parking rules within the site of Integra 61, Bowburn.  Terms and conditions nobody within the vehicle agreed to.
Having visited the site, since receipt of your PCN, I notice that the signage is poorly placed, and is extremely limited (non existent) in the area of the car park where the car was apparently parked and on the walk way to the retail unit. The initial signage it seems is nearly impossible to see where it is located on a zebra crossing side ways on to the access road. There is nothing on the initial access road and limited signage once in the left car park nearest to Costa Coffee.
I do not feel there is sufficient signage that would notify anyone of the terms and conditions within the car park should they bear to the left in towards costa and therefore a driver could not make an informed decision as to whether they wish to remain or leave.
I would like to appeal this PCN/Fine and, if the appeal is rejected, be provided with the POPLA number so that I can escalate and pursue the matter with them.

I thank you in advance.

Inadequate. You are appealing as the keeper. There is no such thing as the "owner". We are dealing with either "driver" or "keeper". For now, without having yet seen this elusive NtK, we don't know whether it is fully compliant with PoFA and as such, only the driver, whose identity they don't know, unless you blabbed it, is liable. You are appealing as the keeper, because if the NtK fails to fully comply with the strict requirements of PoFA, you cannot be liable as the keeper.

It is not a "fine" so please stop calling it one and somehow giving some kind of pseudo authority to an ex-clamper, unregulated private parking company. They are looking to charge/scam you. They cannot "fine" you.

You agree to the terms and conditions by remaining in the car park. It as agreement by action. "You" didn't notice the signs. The "driver" didn't notice the signs. See the difference and why so many people manage to screw these up by inadvertently revealing themselves to be both the driver and the keeper?

You are not writing to a "mate" or anyone who has any care about you or your circumstances. So, no signing off anything with "thanks". It should be serious and formal.

I will come back with a better suggestion than what you have proposed in a while.

29
Should have just gone to the top to begin with instead of wasting time with whoever sent you that email. They obviously have no comprehension about the difference between a fine" and an invoice from a private company. That person is also oblivious to keeping their customer happy.

Looking at the location on GSV, the images from May last year do not show any signage at the location. Has that changed?

30
One additional point that POPLA will need to be made aware of is that the photos on the NtK are not time stamped. In other words, they have been altered or cropped. That is a breach of the BPA CoP 21.5a.

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