Dear UoY,
I am the registered keeper of vehicle xxxx xxx and was angered, once again to be receiving letters signed from the University of York regarding a number of ‘parking charges’ from xxxxxxx till xxxxxx.
This matter, with my vehicle, has been discussed before and the agreement to not trouble me with these kinds of letters again was completely disregarded as I received a large number of letters, so it is best that I account for all of them in this one letter.
Your failings and misleading actions:
- You have failed to meet the requirements of the POFA 2012 Schedule 4 as you have failed to issue a 'Notice to Keeper' within the required timescale, so it is wholly misleading to write to a registered keeper 21 weeks later and say 'you must remit payment in full to us'. Nowhere have you informed me that the liability rests with the driver alone.
- only the driver can be held liable where you fail to invoke POFA 2012 Schedule 4 and there have been no admissions as to who was driving the car in these dates. You cannot demand monies from the keeper under any circumstances now - you are too late. Yet you have misstated the position and added alarmist warnings of dire consequences of a keeper not paying, and untruthfully implied that debt collectors can litigate, which they cannot.
- On the most recent letters, you have finally managed to send them within the required timescale, but using the same template letter, you still have wrongly assuming keeper liability and you still cannot demand monies from the keeper under any circumstances.
- Every ‘parking charge notice’ has failed to specify the means by which the requirement to pay charges was brought to the attention of the driver and failed to identify the creditor, therefore failing to meet the requirements of the POFA 2012 Schedule 4.
The Law:
- it was the will of Parliament when the POFA Bill was first read prior to enactment, not to allow within Schedule 4, the BPA's favoured option of legally requiring a keeper to name a driver. So I will not be naming the driver. That leaves you to pursue me as keeper, which you cannot because your template letter was too late and the 'Notice to Keeper' was late as set out under the statute.
- Parliament has also enacted parts of the EU Consumer Rights Directive whichaims to create a uniform legal umbrella of Regulations in member states, for allconsumer contracts. The Consumer Contracts (Cancellation, Information andAdditional Charges) Regulations came into force on 13th June 2014:[url]http://www.legislation.gov.uk/uksi/2014/870/made[/url]
- Ad hoc parking contracts are formed in the most part, from a driver being expected to infer terms by reading a sign (implied consent). However, the above Regulations, since 13th June 2014, require that consumer contracts are formed only by 'express consent'. Hidden terms and unexpected 'contracts' foisted upon drivers without the required information and express consent being exchanged in advance, do not meet these regulations. Parking 'contracts' are not exempt.
- Further, under the Consumer Protection (Amendment) Regulations 2014 I now have a right to redress: [url]http://www.legislation.gov.uk/uksi/2014/870/made[/url]
PART 4A - CONSUMERS’ RIGHTS TO REDRESS
(4) The second condition is that—
(a) the trader engages in a prohibited practice
(6) The third condition is that the prohibited practice is a significant factor in the consumer’s decision to enter into the contract or make the payment.
27B. (1) In this Part “prohibited practice” means a commercial practice that—
(a) is a misleading action under regulation 5, or
(b) is aggressive under regulation 7.
(2) Regulations 5 and 7 apply for the purposes of this Part as if for the definition of “transactional decision” in regulation 2(1) there were substituted— ““transactional decision” means any decision taken by a consumer to enter into a contract with a trader for the sale or supply of a product by the trader, or for the sale of goods to the trader, or to make a payment to a trader for the supply of a product.”.
27J. (1) Subject as follows, a consumer has the right to damages if the consumer—
(a) has incurred financial loss which the consumer would not have incurred if the prohibited practice in question had not taken place, or
(b) has suffered alarm, distress or physical inconvenience or discomfort which the consumer would not have suffered if the prohibited practice in question had not taken place.
(2) The right to damages is the right to be paid damages by the trader for the loss or the alarm, distress or physical inconvenience or discomfort in question.
The way forward
I have certainly suffered anger, distress and discomfort in receiving these letters demanding money alongside arrears notices and debt collector letters with menaces by warning me (misleadingly) about CCJs and bailiffs. This matter has occurred before and after enough research into the matter myself I gave your establishment enough information in order to correct the parking scheme in a legal manner, but it still shocks me that nothing has been updated since, but just a change in operator. As all these letters I have received were obtained in the time that you were still members of the BPA Approved Operator Scheme, I will still be dealing with this matter like the last time. I would be most interested to read how the University defends their use of this unlawful and menacing letter, issued in every case to the wrong party since you/your agents have not once followed the POFA 2012 and, as such, can only pursue drivers. In order to avoid me claiming my right to redress I require that you:
(a) confirm that all the charges has been cancelled
(b) confirm that you will not be troubling me again
(c) confirm that you have ceased using this particular letter immediately, or
anything like it which misleads keepers into making a transactional decision to
pay when it is not their liability to do so
(d) confirm that your Legal Department is urgently reviewing your practices
(e) confirm that you will only obtain the data of registered keepers from the DVLA in future where you are either:
- planning to send a compliant 'Notice to Keeper' before day 56, under Schedule 4 of the POFA 12 or
- planning to send a non-misleading letter to the keeper merely inviting them to name the driver or pass the letter to the driver (the driver being the only party you can pursue in the absence of a NTK) or
- planning to issue Civil Parking Notices that are compliant under the Schedule 4 of the POFA 12
Drop hands offer
I hereby issue a drop hands offer, whereby I will not involve Steve Clark (BPA) and Hugh Evans (DVLA) in the matter, and waive my expenses and right to damages - but only if you confirm in writing ALL of the above. I am aware that you/your parking agents have decided yourselves to terminate your involvement with the BPA Approved Operator Scheme after being warned by the BPA numerous times about your erroneous 'parking charge' letters but since 1st October 2014, such matters are far more serious for you now, if you choose to persist with this aggressive and misleading practice. I strongly suggest that the author/sender of your letter, obtains urgent Legal Advice before responding to me to explain these misleading actions.
I consider it reasonable to expect a full reply within 21 days.
yours faithfully,