PCN from Debt Recovery Plus ltd on behalf of UKCPS Ltd

[Angry Dad]

Hi everyone

My daughter has received a demand for payment from a firm called Debt Recovery Plus Ltd for an unpaid Parking Charge Notice for £160 to be paid by ??/??/??.
The date of the 'Offence' was approx 3 months ago but she has only just been notified because she forgot to change her address on the logbook and the letter states they have used a tracing service, hence the delay.
My daughter said she has never had any parking ticket put on the car at any time so was completely unaware of the ticket.
The car may have been parked at her address in a communal car park for a very limited time (one hour), she does not have an allocated space and so the car is normally parked on a public road near to her rented flat.
She does not whether to respond to this letter or simply ignore it or will further action and demand for increased payment payment follow.
Any advice or letter template I/she complete would be very much appreciated.

I have attached the letter for info.

[Angry Dad]

Just an update: I today contacted UKCPS who said that the case is now being handled by DRP ltd and can only speak to them. I requested a POPLA code to appeal but was told it is now too late for this.I asked if legal action is taken who would it be by, DRP / UKCPS or the landowner - I was told UKCPS.
I advised them any court action would be contested.
I also tracked down the Land owner/ management co for the car park - Derwent Living. I spoke to them who said it is a valid PCN and would need to deal with UKPCS. I told them that my daughter also had been given the gate code by them the vehicle could enter the carpark to unload flatpack furniture. None of this made any difference they still clainm the PCN is valid.

Can anyone please advise of the best course of action.

Thanks

[ostell]

Have a read of this link The case of Jopson v Homeguard the judge ruled that stopping to unload was not a breach. This was an appeal case so carries more weight. Basically the management company allowed her on site by giving the code for the gate so promissory estoppel applies, ie the management company gave her permission to be there and no one else can detract from that permission..

What does the tenancy agreement state about parking? What does the landlord's lease say about parking? Has she contacted the landlord.

Can you get photos of the signs? If they say "Permit Holders Only" or "Authorised vehicels only" or similar wording then that is a forbidding sign unable to form a contract and therefore there cannot be a claim for a breach of a contract that did not exist.

[Angry Dad]

Hi Ostell, thanks for your response.
I did contact the letting agency and they advised that even they do not have the gate code because they do not let any flats with parking facilities on the complex. I have read over the Assured Shorthold Tenancy Agreement and cannot find any mention of parking. We have only contacted the Letting Agency and Management companies for the block and Carpark - different companies. Not sure how /if should contact the Landlord directly.
Having read the forums my daughter is also requesting SARs from both UKCPS and DPR Ltd - request attached.
I have also attached a photo of the signage in the carpark which my daughter says is put up in various locationsin the car park

[ostell]

Yes that's a forbidding sign, so to claim that a contract exists with a non permit holder is contradictory and perverse. Does your daughter have permission in her lease to park and is there a parking space demised with the property? That can be resolved by asking the landlord

[Angry Dad]

I was wondering if my daughter should appeal to UKCPS with her defense now - they have already told me verbally thet they will not consider her appeal due to the time elapsed or wait for their response to the SAR request or issue of any court proceedings. My wife thinks we should just the charge to avoid further charges, but having read forums I do not believe these can be increased? DRP Ltd 'adviser' said paying up or going to court was my choice but this would incur additional court fees and Solicitors costs/fees which my daughter would be liable for - I think this this is just their scare tactics??

[Angry Dad]

Hi Ostell I cannot find anything in the lease regarding parking and she does not have a parking space - she parks on nearby public roads. The car has only been parked inside a couple of times for unloading which she believed to be okay since Derwent Living actually gave her the gate code to unload heavy furniture.

[ostell]

Please read my earlier comments in post #3

[Angry Dad]

Thanks again Ostell, its good to have support
I have been doing some research and intend to send the following together with the SAR to both UKCPS ltd and DRP ltd to try to head off any further action on their part. I found a similar case on another forum and plagiarized to suit. I propose to send registered post as DPR are requesting payment by 24/12. Any advice / comment is greatly appreciated.

Dear Sirs,

I have just received your Notice to Keeper xxxxx for vehicle VRM xxxx

Although you have verbally said that I am outwith the period to make an appeal through POPLA I am advising yourselves that I intend to vigorously defend any actions taken. My defence is, but not limited to the following:

1. It is admitted that the Defendant is the registered keeper of the vehicle in question.

2. The defendant has no liability as they are the Keeper of the vehicle, and the Private Parking Company has failed to comply with the strict provisions of PoFA 2012 to hold anyone other than the driver liable for the charges.

2(i) the driver has not been evidenced on any occasion.

2(ii) There is no presumption in law that the keeper was the driver and nor is a keeper obliged to name the driver to a private parking firm. This was confirmed in the POPLA Annual Report 2015 by the POPLA Lead Adjudicator and barrister, Henry Greenslade, when explaining the POFA 2012 principles of 'keeper liability' as set out in Schedule 4.

You have failed to comply with the requirements of Schedule 4 of The Protection Of Freedoms Act 2012 namely, but not limited to, failing to give notice of keeper liability as prescribed by section 9 (2) (f) of the Act. You cannot, therefore, transfer liability for the alleged charge from the driver at the time to me, the keeper.

There is no legal requirement to name the driver at the time and I will not be doing so.

3. The signage displayed only makes an 'offer of parking' to permit holders, and therefore only permit holders can be potentially bound by the contractual terms conveyed (and only if the terms were clear and prominent as adequate notice of the charge, which is denied). The signage is a forbidding sign unable to form a contract and therefore there cannot be a claim for a breach of a contract that did not exist.

4. The car park has a security gate which can be opened only by authorised people. In this case, it is my belief as registered keeper that the car was parked inside the premise with permission from the Management Company Derwent Living for loading/Unloading heavy items during the time of the alleged incidents.
Derwent Living allowed the car on site by giving the code directly to the registered keeper for the gate, so promissory estoppel applies, ie the management company gave permission to be there and no one else can detract from that permission..

5. The reason for this parking company's presence on this gated site can only be for the sole purpose of deterring parking by uninvited persons, for the benefit of drivers authorised by the leaseholder businesses. Instead, contrary to various consumer laws, this Claimant carries out a predatory operation on those very people whose interests they are purportedly there to uphold.

6. The driver was allowed the right to load/unload by the Management Company, relying on an express verbal agreement with Derwent Living staff.

7. This permission created the prevailing and overriding contract - the only contract - and the business was concluded as agreed, at no cost or penalty.

8. Loading or unloading with the permission of the landholder is not 'parking' and signs cannot override existing rights enjoyed by landowners and their visitors, as was found in the Appeal case decided by His Honour Judge Harris QC at Oxford County Court, in case number B9GF0A9E: 'JOPSON V HOME GUARD SERVICES’ which also adduced a business car park decision, analogous to this present case.

8(i) In the Jopson appeal in June 2016, the Senior Circuit Judge found that the position was analogous to the right to unload which was the subject of Bulstrode v Lambert [1953] 2 All ER 728. The right of way in that case was: “To pass and re-pass with or without vehicles…for the purposes of obtaining access to the building…known as the auction mart.''

8(ii) In the Jopson appeal it was also held as a finding of fact, that stopping to unload was not 'parking'.

8(iii) In the Jopson appeal it was held that ParkingEye Ltd v Beavis [2015] UKSC 67 had no application to a situation involving drivers with a right and expectation to be entitled to park under the grants flowing from a lease.

8(iv) In the Jopson appeal it was also held that signs added later by a third party parking firm are of no consequence to authorised visitors to premises where other rights prevail and supersede any alleged new 'parking contract’.

9. In any event, the signs make no offer to authorised visitors engaged in permitted loading/unloading for which no 'parking permit' was ever required (neither before the arrival of this Claimant onsite, nor after).

10. Further and alternatively, the provision requiring payment of £160 is unenforceable as an unfair term contrary to the Consumer Rights Act 2015.

11. This charge represents a breach of the well-known and well-established principle of promissory estoppel, i.e. that a promise is enforceable by law, even if made without formal consideration, when party A has made a promise to party B, who then relies on that promise to his subsequent detriment.

12. This charge represents a breach of the well-known and well-established principle that 'a grantor shall not derogate from his grant'. This rule embodies a general legal principle that, if A agrees to confer a benefit on B, then A should not do anything that substantially deprives B of the enjoyment of that benefit.

13. On the one hand the Management Company verbally allowed access and gave the code for the gate, to enable loading/unloading on more than one occasion (the vehicle could not have entered without such express permission and this is proved by the very fact that the gate has to be opened to allow the entry of the vehicle). Landholders cannot allow or promise this on the one hand, then on the other hand, take away this permission or promise, in allowing a third party to disallow and/or seek to charge for the permitted action by a driver.

Statement of Truth:

I confirm that the contents of this statement are true to the best of my knowledge and belief.

I do not expect to hear from you again, or your debt collectors, except to confirm that no further action will be taken on this matter and my personal details have been removed from your records.

Yours Faithfully,

[ostell]

4) by giving the code directly to the driver ?

[Angry Dad]

Change point 4 to: ?

The car park has a security gate which can be opened only by authorised people. In this case, it is my belief as registered keeper that the car was parked inside the premise with permission from the Management Company Derwent Living for loading/Unloading heavy items during the time of the alleged incidents.
Derwent Living allowed the car on site by giving the code directly to the driver for the gate, so promissory estoppel applies, ie the management company gave permission to be there and no one else can detract from that permission..

Thanks again - apologies for delays in replying, busy with Xmas!