Author Topic: LPS – "Failure to Pay" – Rosebird Car Park Stratford-upon-Avon - Leased vehicle  (Read 59 times)

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c5647

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Hi all

Please see attached PCN issued by LPS.



Note:
  • Vehicle subject to PCN is leased
  • PCN was issued to Leasing company as the named keeper
  • Driver or Lessor has never received any correspondence from LPS
The notice is dated 9 August 2023. The first Lessor knew of this was when the Leasing company issued an invoice for the amount of £60 + £10 admin charge via email, to the Lessor, on 15 March 2024.



Lessor contacted Leasing company on 15 March 2024 to ascertain what this invoice was for, and the attached copy of PCN was sent to Lessor from Leasing company.



The car park in question is at a coffee shop, which has a tablet inside for entering the registration number to claim free parking. Driver is quite sure they entered their registration number but is not able to prove this, especially given the time passed.
(This tablet does not issue receipts)



I question:
  • Can the Leasing company pay a PCN on Lessor's behalf without the lessor or driver having any knowledge of such for 7-8 months; or given any opportunity to appeal?
  • Is there anything that can be realistically done, given that the invoice has been paid by the Leasing company? Lessor has not paid the Leasing company yet but this will come out with April's Direct Debit.

Thanks for any guidance / advice.

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b789

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You are the “lessee” or “hirer”. The Leasing company is the “lessor”. You need to get the terminology correct as you are dealing with contract law.

The fact that the lease company has paid the PCN thus depriving you of any opportunity to appeal is unfortunate. However, it will depend on what it says in the lease agreement about parking charges from unregulated private parking companies. These are not “fines” or “penalties” issued by any “authority”.

If the lease company is a BVRLA member, they must have a specific clause in their wording in order to absolve their liability if they have paid the charge in breach of those terms. Can you show us the actual wording in the lease agreement about paying charges from private parking companies?

If they have paid a private company under the excuse that it was a “fine” or a “penalty” without the lease agreement specifically allowing them to pay invoice from private companies, you only recourse is to complain to them, the BVRLA and if they do not refund you, to take them to small claims court, an easy thing to do which will be explained once we’ve seen the specific lease clause.

Under no circumstances shoul the hirer identify the driver. Neither the lease company nor the PPC knows who the driver was. Any communication is as the hirer/lesee. If the lease company had followed the correct procedure of simply transferring liability to the hirer/lessee, this could have been ended and you wouldn’t be paying a penny. I have yet to see any PPC correctly serve an NtH that complies with PoFA. The actual NtK you’ve shown us is not PoFA compliant anyway and the lease company could have easily defended it, but that’s besides the point.

For now, please show us the exact wording of the lease agreement to determine the best course of action for now.
« Last Edit: April 08, 2024, 06:10:36 pm by b789 »

c5647

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Thanks so much for your response, and understood re: terminology.

I attach clause 3 of the lease agreement setting out my obligations. 3.7 seems to be the relevant section: "promptly pay all fees, duties, charges, fines, taxes and other outgoings payable in respect of the Vehicle".

I don't believe the lease company is a member of the BVRLA, after a quick search of their member directory. The agreement does refer to them being authorised and supervised by the Financial Conduct Authority; and complaints can be referred to the Financial Ombudsman.

b789

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Clause 3.2 actually says they are BVRLA members and follow their CoP.

Page 10 of the BVRLA guidance says:

Paying and recharging
 Rental and leasing companies that choose to pay a private parking charge notice and recharge it to their customer should ensure that their rental/leasing agreement allows them to do this.




A sample clause, which would allow you to pay and recharge, is:

“You will be responsible for paying the following charges: 
All charges and legal costs for any congestion charge, road traffic offence parking offence or parking notice, or any other offence involving the rental vehicle, including from the vehicle being clamped, seized or towed away.”

Omission of the "or parking notice" contravenes the advice from the BVRLA's own trade guidance. Additionally, you have not been given any opportunity to “promptly” pay any charges, they have breached their own terms.


Are there any other terms that cover this issue in the agreement?

c5647

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Thank you - I shall commence on the complaints process with words to that effect and inform the forum of the outcome. Thanks again.

(There are no other terms covering this issue in the entire agreement)
« Last Edit: April 08, 2024, 07:16:59 pm by c5647 »

slapdash

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They may well argue "other outgoings" covers it.

I wonder if it might be worth a consumer rights argument that the term is unfair.

- Overly vague
- Clearly disadvantages you
- Not given extra prominence as required

They cannot argue it's fair as they as keeper have liability and are legitimately protecting their interest because it's untrue:-

PoFA is required to be correctly used to make the RK liable (and there is no guarantee the lessor is the hirer anyway). That act also provides a legal method to transfer potential liability to the hirer.

It's further unfair because it simply removes the hirers right for dispute resolution.
« Last Edit: April 08, 2024, 07:36:48 pm by slapdash »

b789

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As BVRLA members, they are required to follow BVRLA a guidance:

https://www.bvrla.co.uk/static/uploaded/61b3298b-a918-499b-9ac8b8bea2b726a0.pdf

Of course there are CRA issues also. However, at this point, whether the PCN is or would have been PoFA complaint is moot. The hire company has paid the PCN and charged the hirer. This an obvious breach of their own terms and so the hirer should sue them for the money they’ve been charged.

The PPC doesn’t care about any of this. They’ve been paid. End of, for them. Let the hire company figure out how to get their money back.
« Last Edit: April 08, 2024, 09:10:38 pm by b789 »

slapdash

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Quite. My comments were based on the complaint between the hirer and the lessor which is what you and OP were considering.

A further issue may relate to method of payment. Given there is a legitimate dispute between OP and lessor I believe there is a reasonable case to withhold that element, potentially by recalling the direct debit and making the reduced payment manually.