Smart Park Asda Help

[McSheehy]

Hi everyone,

 

On 15/11/2014, I over stayed the set 3 hours set out by Smart Park. Although to my knowledge there is no signage indicating a min/max duration of stay at the car park entrance. Although I may have missed it as it was dark.

 

I have stupidly taken advice from elsewhere and have binned the letter. Yes, I still have the Charge notice reference. I have now received a letter from DRP (Debt Recovery Plus Ltd), with a total demand of £120 or court action.

 

I am now concerned how I stand regarding this matter. Can I still appeal to Smart Park even though this matter has been handed over or do I now need to deal with DRP?

 

I have read a few posts (which I am unable to link) concerning the matter. One of them was actually on this site with a standard copy/paste response for them. Posted by havinastella on 12/2/14.

 

I planned to copy/paste the response as my appeal. However, unsure how this will work now DRP are involved. Can someone please advise?

 

Thanks

 

Chris

[honeybee13]

Hello and welcome to CAG.

 

I expect the forum guys will be along later with advice for you. Binning the letter wasn't ideal, but the guys will know what is the best next step now. Please bear with us until they're able to get here.

 

My best, HB

[armadillo71]

This was ANPR capture and not a ticket on the windscreen?

 

How many letters have you received so far?

 

There is no point responding to DR + as they have no power to do anything.

[McSheehy]

Yes, this was captured on camera.

 

And to my knowledge, 2.

 

Chris

[Ell-enn]

Smart Parking changed their address from the Perth one to a Birmingham address without bothering to advise people who had received one of their "invoices" with the old address on and had written to appeal the charge ! this of course meant that they could treat these invoices as not being challenged and so escalate to debt collection for further harassment.

[BazzaS]

Yes, this was captured on camera.

 

And to my knowledge, 2.

 

Chris

 

So, they are writing to you as the vehicle's Registered Keeper?

You state the date of the alleged overstay was 15/11/14.

 

When was the first letter to you as Registered Keeper?

(1st Notice to Keeper or NTK)? They may have fallen at the first hurdle if they sent it at the wrong time...

[McSheehy]

As I said, I dont have the original letter. Issue date on reference is 27/11/2014, im assuming this the invoice date.

 

Chris

[McSheehy]

And yes, sorry. I am the registered keeper.

[McSheehy]

For reference, this was the email/letter I referred to in my original post by havinastella.

 

I refer to your invoice dated the xxxxxx

 

In response, I would ask you to note the following.

The registered keeper/owner of a vehicle is under no obligation whatsoever to provide details of the driver or any other information to a commercial company of no legal status of any description. (Scottish Jurisdiction).

 

In addition, liability for payment could only be determined by a Sherriff under Scottish Civil Law and such demands should not be confused in any way with Penalty Charge Notices issued under the terms of a Road Traffic Order.

 

Furthermore,, where a ticket has been issued under the law of contract to a vehicle which although allowed to park on the land, is in breach of the conditions relating to parking, the driver could argue that the charge being demanded is so high that it amounts to a penalty and is therefore unlawful under the Unfair Terms in Consumer Contract Regulations 1999.

 

What the regulations state

 

A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations arising under the contract, to the detriment of the consumer.

 

A term shall always be regarded as not having been individually negotiated when it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.

The previous paragraphs are also supported by the Scottish case of Castaneda and Others v. Clydebank Engineering and Shipbuilding Co., Ltd. (1904) 12 SLT 498 the House of Lords held that a contractual party can only recover damages for actual or liquidated losses incurred from a breach of contract

 

Transferral to a debt collection agency and the threat of additional charges is also in my opinion questionable for the following reasons taken from the Office of Fair Trading Debt Collection Guidance.

 

 

2.6 Paragraph H.

Ignoring and/or disregarding claims that debts have been settled or are disputed and continuing to make unjustified demands for money.

 

2.8 Paragraph A

Sending demands for payment to an individual when it is uncertain that they are the debtor in question.

 

2.8 Paragraph J

Requiring an individual to supply information to prove they are not the debtor in question.

 

2.10 Paragraph B

Misleading debtors into believing that they are legally liable to pay collection charges when this is not the case, for example, when there is no contractual provision. .

 

I am also aware that I am under no obligation to engage in any way with debt collection agents.

 

In Conclusion, the contents of this correspondence should not be considered as a letter of appeal, but as total denial of liability..

 

I hope this clearly outlines my position.

 

Yours faithfully

[BazzaS]

As I said, I dont have the original letter. Issue date on reference is 27/11/2014, im assuming this the invoice date.

 

Chris

 

If they sent a NTK 12 days after the alleged infraction, they'd fall foul of POFA 2012 and not be able to enforce it, for England & Wales.

 

However in Scotland this would fall under a "devolved" matter

http://www.legislation.gov.uk/ukpga/2012/9/notes/division/4

 

Any one able to comment if there is a Scottish equivalent to Schedule 4 part 9(5) [assuming no ticket/NTD was left in the car] or Schedule 4 part 8(5) if there was a NTD

[Dublindel]

Ask for their pre-estimate of loss

Ask for ANPR logs

Ask for Servicing and Maintenance records

Ask for an explanation as to how an actual loss of £100 can be reduced to £60 (I'm assuming these fifties to be correct, ignoring DRP chatge). Also the BPA limit of £100 is advisory depending on justification.

 

So basically by charging you their losses of £100 then reducing the charge to £60 means they are losing £40. It's best they don't charge you then they don't lose £40... see how ridiculous this all is, send these points in and ask for a POPLA code which can be given. Also state that the debt is denied and you expect this to go either to POPLA or Small Claims Court. Any further chasing letters will be charged at £25 per letter and will be chased through the SCC if necessary.

[McSheehy]

Thanks BazzaS. What section or POFA 2012 are you referring to? I would like to read up on this myself

 

I have already sent the above letter as my appeal. If they reject this I will do as advised Dublindel.

Surely they can only claim losses if that was the only parking space left in the carpark? (It was not disabled/parent+child space)

As for the ANPR logs, they have attached a photo of my car to the claim. This this point would be irrelevant in that case?

 

I don't mean to pick holes, I'm just trying to understand this myself. What would the servicing and maintenance records achieve?

 

Thank you for your time!

 

Chris

[armadillo71]

Are you as RK in Scotland?

 

You came asking for advice yet send ' an appeal ' without confirmation that it is the right template or thing to do....

 

Who did you send the letter to?

[McSheehy]

It wasn't via letter. It was via the online appeal system Smart Parking have in place.

 

I posted here and on Pepipoo.

 

Yes, I am the registered keeper in Scotland. I apologize, I thought I mentioned that in my post. I must have deleted that section.

 

Their advise was similar to above, with the exception that they had that piece of information (my fault). They advised me to send the appeal template as DRP would be unable to action anything.

 

Chris

[BazzaS]

Thanks BazzaS. What section or POFA 2012 are you referring to? I would like to read up on this myself

 

I think I've answered already

Any one able to comment if there is a Scottish equivalent to Schedule 4 part 9(5) [assuming no ticket/NTD was left in the car] or Schedule 4 part 8(5) if there was a NTD

 

So, that'd be the cited parts of Schedule 4, then!

[McSheehy]

Thank you BazzaS.

 

I didn't realise "Schedule 4 part9...." was in the POFA 2012. I will read up on this now.

 

Thank you for your time and knowledge.

 

Chris

[armadillo71]

There is no keeper liability in Scotland.

 

Schedule 4 of the POFA 2012 is not applicable in Scotland.

[ericsbrother]

Invite them to foxtrot oscar if they respond as they have no law to fall back on to continue to pursue you as keeper.

[McSheehy]

Thank you everyone.

 

Unfortunately my appeal was rejected on the basis I did not appeal with in 28 days of issue.

 

This is the email I received:

 

Thank you for your recent communication.

 

As per the British Parking Association code of practice (paragraph 22.7), all appeals must be submitted to us within 28 days of the initial Parking Charge Notice (PCN) being issued. Due to the length of time your PCN has been open, we have now referred this to a debt recovery company (Debt Recovery Plus) who are handling the matter on our behalf. Please contact them directly if you wish to discuss this further.

Debt Recovery Plus: 0844 561 0965

 

Yours sincerely,

 

Smart Parking Ltd

 

 

 

Smart Parking Ltd also trading as Town and City Parking, registered in Scotland (SC138255), 5 South Inch Business Centre, Shore Road, Perth, PH2 8BW

 

The information contained in this electronic mail message and any attachments here to is privileged and confidential information intended only for the use of the individual or entity named above or their designee. If the reader of this message is not the intended recipient, you are hereby notified that any dissemination, distribution or copying of this communication is strictly prohibited. If you have received this communication in error please immediately notify us by return message or by telephone and delete the original message from your mail system. Thank you.

DISCLAIMER: Whilst we take reasonable precautions to minimise risk, you must carry out your own virus checks before opening attachments or reading e-mails and we do not accept liability for any damage or loss in this respect. This e-mail and its attachments may be subject to copyright protection and you should not retransmit or reproduce these without the consent of the author.

 

 

As the date of issue was over 28 days ago I assume they are not obliged to provide a POPLA code?

 

Now that this issue has been handed over to DRP, do I have a legal obligation to deal with them now? or can I refuse and deal directly with Smart Parking?

 

I do not recall "British Parking Association code of practice (paragraph 22.7)" being quoted on the original letter.

 

I apologise for rushing into this, I should have waited for a response on both forums before making my decision to appeal.

 

If anyone is willing to assist further in this matter it would be much appreciated.

If you require any further details, please do not hesitate to ask.

 

Chris

[armadillo71]

Do they know who the driver was by your appeal letter?

 

As already stated, there is no POFA 2012, no POPLA and no keeper liability in Scotland.

If you had waited the advice would have been to ignore.

 

And that is probably still the advice...

[ericsbrother]

from now on just ignore them. Dont bother worrying about DR+ or anyone elae as they cant even tell you the time let alone demand anything. Smart Parking know this and that is why they have passed it on to the rentathreats.

[McSheehy]

The appeal sent was worded as above. I have not disclosed myself as the driver at any point.

 

I understood there was no keeper liability in Scotland and no POFA 2012, I was not aware POPLA was was under the same category.

 

I would like to thank everyone who has helped me in this matter. Again, I apologise for rushing ahead and sending the appeal. Hindsight is a wonderful thing.

 

I will heed your advice and Ignore "Rentathreat" as Ericsbrother has so kindly put it.

 

Thanks

 

Chris

[determindator]

This may be useful http://www.cas.org.uk/about-us/campaigns/its-not-fine-campaign-unfair-private-parking-charges

 

 

On more than one occasion over the years this has happened to me, I have made it known to the store Manager I received a notice and that I am a regular customer and not taking advantage of the parking. I have also asked what they charge per hour after the allocated time which I offered to pay however, in all cases I was only parked up to 15 mins over their allocated time. There was nothing set in place for paying the excess time so on that premise, you shouldn't be able to be given an extortionate penalty just to make money out of you. In all instances, the Manager was helpful. The Manager can contact the parking company to cancel the charge. They are busy so to make sure, contact the parking company/debt collection agency, state the above and add you will be involving the store Manager. I can only say this is what happened with my response. I never heard any more from the parking perils.

[Dublindel]

You can reply to a DRP letter with a simple statement. DEBT DENIED, Smart parking has the option to allow a POPLA appeal or go to Court. Your involvement is no longer recognised and will be charged to Smart Parking at £40 per letter.

[Lochlann990]

Hi,

 

 

I recently had a parking ticket from Smart Parking Ltd for parking in a parent & child bay.

 

 

All the evidence just shows pictures of the inside of my car, I use a detachable buggy which is use for both car seat and push chair.

 

 

Their evidence does not prove anything & also is this an invasion of my privacy?

 

What would be the best way to appeal against this? & also if this is invasion of my privacy can I take this further?

 

Many thanks

 

 

Lochlann