Never Received a PCN

Never Received a PCN
Posted by Dan Waterman on 08 Jun, 2024 00:51
Hello Everyone,

I am seeking your advice on an urgent matter regarding a parking charge notice (PCN) issued by GXS Services Ltd.

In March this year, I took my daughter out twice to teach her to drive, utilising a car park operated by GXS Service Ltd in Dover. I initially received a PCN, which I promptly appealed and won. GXS claims that I did not win the appeal but "the PCN was cancelled as they did not respond to IAS within the given time". This has been sorted, and I do not have to worry about it.

What bothers me, however, is that six weeks later, I received a final notice from GXS, demanding payment of £160 for failing to appeal against a second PCN that I never received. I used the parking space twice, so two tickets have been issued.

I emailed GXS but they claimed to have proof of sending the second PCN, which is untrue as I never received any such notice.

Furthermore, during the time in question, the car was never parked. It was in motion continuously for the entire duration of 22 minutes. My daughter and I remained in the vehicle the entire time and never left it.

Now, BW Legal, GXS's legal representative, is demanding payment of £170 or threatening court action.

I have seen other people complaining about not receiving a PCN notice. I am wondering if this is a tactic that's been used by the private parking companies. Why would I appeal a PCN but deliberately ignore the second one?

I would greatly appreciate any advice or assistance on how to proceed with this issue.

Thank you.

Dan

#1 Reply
Posted by DWMB2 on 08 Jun, 2024 11:08
This is a fairly common occurrence with learner drivers, and perhaps an unfortunate learning opportunity for the student driver to ensure that they always check the terms and conditions carefully when entering private land.

We could do with seeing what you have received, as well as photos of the signage at the site.

#2 Reply
Posted by Dan Waterman on 08 Jun, 2024 11:49
Thanks for your comments.

Thing is, I am not arguing the rules of the parking, but I never received the PCN.
Had I received it, like the first one, I'd have at least appealed on time.
Secondly, I did not park nor did I leave the car.

I just want to quote this I found somewhere:

"The definitions [for parking] are taken from Acts of Parliament, Halsbury’s Laws of England, leading textbooks and verbatim judgments from across the Commonwealth. As such its definition of parking should be influential in parking cases.

Its definition of parking comes from Lord Greene’s judgment Ashby v Tolhurst (1937). He held:

You take a car park ticket in order to obtain permission to park your car at a particular place, and parking your car means, I should have thought, leaving your car in the place. If you park your car in the street you are liable to get into trouble with the police. On the other hand, you are entitled to park your car in places indicated by the police or the appropriate authorities for the purpose. Parking a car is leaving a car and, I should have thought, nothing else.

Words and Phrases legally defined” Fifth edition (2018)."

Any thoughts?

#3 Reply
Posted by DWMB2 on 08 Jun, 2024 12:03
This is the second time someone has quoted that 1937 case recently. It wasn't one with which I was familiar. My main thoughts are that one can "leave" a car somewhere without exiting the vehicle, as "to leave" can be defined as "allow or cause to remain".

I think we should explore avenues that might offer stronger defences than a definition of "Parking" from a single court case that predates the Second World War.

If you did not receive the notice then they cannot have delivered it within the relevant period to be able to hold you liable as the registered keeper, under Schedule 4 of the Protection of Freedoms Act 2012. The issue is, proving you did not receive something is rather difficult.

It would be useful to see the wording of the signage at the car park, as this could help, depending on the terms.

#4 Reply
Posted by Dan Waterman on 09 Jun, 2024 19:04
I really appreciate your answers and time.

They have provided electronic proof that they have delivered the second PCN but I truly and honestly never received it. As I explained in my last message here, why would I appeal a PCN but ignore the second one? I am an academic and I can read and write, so I find this utterly unfair.

Thanks again

#5 Reply
Posted by DWMB2 on 09 Jun, 2024 19:38
Quote
They have provided electronic proof that they have delivered the second PCN
Have they? It would be very unusual for a parking company to send a PCN via any sort of tracked/recorded delivery. Are you sure they haven't provided you proof of posting (ie proof they sent it, not that it arrived)?

The presumption something has been delivered when it has been sent can be rebutted, but as noted, it's difficult (otherwise everyone would just say they didn't receive anything).

#6 Reply
Posted by H C Andersen on 09 Jun, 2024 21:17
OP, IMO simply denying the presumption of service won't win the day. Without proof how could it? As posted by others, if life were this simple then this strategy would be adopted by everyone when it suited.

If you want to test the argument before going to court, then name your daughter as the driver who drove onto the site and continued in motion until she left. Surely this must have been the case otherwise you would be asking a court to accept either that you changed places before you entered the site or that she never took the wheel.

Given your current predicament, I would name your daughter as driver because this would at least allow her to defend the creditor's claim at IAS with you representing her and reduce the creditor's claim.

What's to lose?

#7 Reply
Posted by Dan Waterman on 09 Jun, 2024 23:54
I have been trying all night to send a copy of the letter but I can't.
I tried with screenshots (30kb size) and PDF (900kb size) but didn't go through, tried for hours. Keep asking me to report this to the Administrator.

"An Error Has Occurred!
The upload folder is full. Please try a smaller file and/or contact an administrator."

Thank you both for your time

#8 Reply
Posted by DWMB2 on 10 Jun, 2024 00:18
The upload space on here is very limited (hosting costs would likely spiral out of control if it was unlimited). You'll need to use a third party site like Imgur to upload. The following thread contains a quick 'how to' of how to add images from there onto your thread: READ THIS FIRST - Private Parking Charges Forum guide.

Regarding HC's suggestion, I think whether you do that depends on what your aims are, and mainly, how far you're prepared to take the matter. If you're prepared to go all the way and potentially defend the matter in civil court (small claims track), then unless your daughter is particularly keen to go to court herself, you could defend the matter as the keeper, and could advance the same arguments that she would have open to her, as well as any that might be open to you as the keeper*.

If you're not prepared to go to court, then naming your daughter** should see them re-issue a charge directly to her, giving another opportunity for an appeal. If I were a betting man, I'd wager that the chances of success with an appeal are low - parking companies make no money from accepting appeals, and by the sounds of it, your previous charge was cancelled due to a balls up on the parking company's part, rather than them accepting your appeal on its merits (regardless of how strong or otherwise those merits may be).

*Regarding your liability as keeper, whether they can recover from you as the keeper depends on whether or not they have complied with the requirements of Schedule 4 of the Protection of Freedoms Act (there's a link to it in my signature). I'm not sure whether GXS ordinarily comply with this - if you're able to upload a copy of the other notice you received, the one that was cancelled, this might give us a clue whether their standard boilerplate is compliant.

**Whether or not you can legitimately do this will rather depend on who was driving when. From your account of things, it sounds as though your daughter drove in and out of the car park, as you would not have been able to swap drivers on arrival/before departure if the vehicle was "in motion continuously" as stated in your opening post, but if that is not the case then naming her as the driver may not be an option.

#9 Reply
Posted by The Rookie on 10 Jun, 2024 10:44
Quote from: Dan Waterman on 08 Jun, 2024 11:49
Thing is, I am not arguing the rules of the parking, but I never received the PCN.
When it comes to driver liability, that's irrelevant, not receiving an invoice for something doesn't mean you don't owe the money (though how much may be owed is a different issue when their is a multiplier).

As noted though, it does help the keeper.

#10 Reply
Posted by Dan Waterman on 12 Jun, 2024 01:23
Dear DWMB2

Thank you so much for your kind advice and the time you spent trying to help me.

Since I can't upload the letters sent to me, I will try to cope and paste the letters sent to me by email:

On 15 March 2024 I received this email:

"Dear Mr. XXX,
Re: Parking Charge Notice Number A59196 (Vehicle: xxxx)
Site: DHB Marina North Car Park
Issue date: 07/02/2024

Further to your email.

A Notice to Keeper was sent to you on the 7/2/24 and a final demand on the 7/3/24, I have attached copies of both letters together with the certificates of post.
The account is with BW Legal, they will contact you if not already, it is they that you must communicate with.
PCN A59659 was cancelled as we did not respond to the IAS within the given time, the IAS did not rule in your favour.
Please be aware, we cannot assist any further."