REFUSED RIGHT TO APPEAL LB Hackney / Zipcar - contract law question.

[tedd4]

I have received a PCN from the London borough of Hackney was driving a car club operated by Zipcar which is owned by Avis car UK.

 

This particular car club scheme was called flex and allows you to park in any parking bay within the signed up participating borough. If it’s part of the other scheme, Zipcar standard scheme this has dedicated bays and these are the only authorised bays for parking then you are liable for any fine you receive.

 

The issue is that the car is registered to Avis and they receive the notice from the council directly until Zipcar transfer by email the violation notice. As such Zipcar denied the driver any option of appealing by making a payment and charging an operating fee of £15 and suggesting a retrospective appeal is made for a refund.

 

After objecting to this they now give up to 5 working days before they pay for the PCN and charging it to my account.

 

Most recently I received a PCN by mistake as the warden did not differentiate between the two schemes operated and by Zipcar itself for not recognising I was driving a car that is authorised to park in any bay.

 

I have sent in a letter to the council and received a response saying that if I pay the PCN I lose the right to challenge my PCN notice and because of that they accepted my payment and closed the case.

 

Given that this was not paid with my authorisation do I not still have the right to appeal?

[renegadeimp]

Depends what the terms and conditions of your lease says.

[Jamberson]

The dispute is between you and Zipcar. The council have not asked you for anything, so there's nothing for you to appeal.

 

Are Zipcar entitled to charge you under these circumstances? As Renegadeimp says, check your contract with them.

[tedd4]

Zipcar complete the initial notice to owner and transfer the fine to the driver of the vehicle at the time. From then on, the council directly contact you as the driver for payment.

 

 

 

My point being that Zipcar charge a ‘handling processing fee’ though this was never in the Terms and Conditions when I signed up but more importantly, give only 5 days for you to be aware of the violation and state you will appeal otherwise they pay the fine.

 

 

 

I have pointed out that this is a lot less than local authority allow and should you appeal and win the fee isn’t refunded. Furthermore, the council has refused me the opportunity to appeal as it has been paid by proxy. So it is between myself and Hackney in regards to the right to appeal. The issue with Zipcar is the fee which I have asked them to provide me with a copy of their T&C’s.

 

 

 

The lease does say that the driver will be responsible for payment of the violation but nothing about the payment by them. This transference of the violation is a recent procedure.

Edited September 20, 2018 by honeybee13
Paras

[Jamberson]

Your post doesn't make much sense.

 

Did the Council issue you - that's you personally, nothing to do with Zipcar - did they issue you with a Notice to Owner?

 

If so, did Zipcar pay it on your behalf?

 

If you haven't had a Notice to Owner sent to you personally by the Council, can you explain the first part - "Zipcar complete the initial notice to owner and transfer the fine to the driver of the vehicle at the time. From then on, the council directly contact you as the driver for payment."

[tedd4]

Here is how it works:

1. PCN ISSUED: zipcar will be notified and charge a £15 processing fee. Additionally, the driver is responsible for the cost of the ticket. Zipcar say ‘If we can, we will redirect the violation to you. If we can't redirect it, we will pay the fine, along with any late fees and bill the total to your account. Other fines or membership suspension can also result, so please pay as soon as the ticket has been received’

 

2. In the case where you wish to dispute it?

 

If you wish to contest a violation and the issuing authority allows it, be sure to do so promptly! If Zipcar receive a notice in the post, and the driver has yet to dispute the ticket with the issuing authority, Zipcar will automatically bill your account for the violation, plus the processing fee.

 

3. What happens if the driver receives a ticket after the reservation has ended?

 

If the ticket was issued as a result of your reservation, you are responsible for it. Once we are notified about the ticket, we will charge you a £15 processing fee.

If we can, we will redirect the violation to you. If we can't redirect it, we will pay the fine, along with any late fees and bill the total to your account, provided that there’s no grounds to appeal.

You will be able to appeal the fine

provided the issuing authority allows you to

and that you have valid grounds to do so. You will be informed of the process via email.

 

4. How long do I have to respond?

 

Because PCNs are issued by local authorities, we have limited time to process them. We try to give at least 24 hours to respond to any violation notification. Please try to get back in touch as soon as possible.

 

How much do I have to pay?

 

When a ticket is originally issued, there’s a 14-day window when a reduced rate is applicable. This can vary from £50 to £65. We do all we can to alert you and give you the opportunity to either appeal or pay at the reduced rate. However, if we do not receive the ticket at the reduced rate then the Notice to Owner will be sent to us. By this stage, the reduced rate is no longer applicable. You are still responsible for the cost of the fine regardless if it is at the reduced rate or not.

 

In summary, I received a copy of the Notice to Owner originally addressed to Zipcar but transferred over to me. I instructed Zipcar I would be appealing the PCN and outlined the reasons behind the appeal. I did not receive a reply from Zipcar but I did get a letter from Hackney Council saying in view of the fact that the fine has been paid but please note this was done by Zipcar not by myself by virtue of charging the fines to my account. Clearly states that I’m no longer entitled to an appeal.

[Jamberson]

OK, I think I get it, but you are confusing things by talkng about the charge being "transferred" to you. As I understand from your posts, it has never been transferred to you, it's just that Zipcar advise they will tell you it exists and let you handle it, ie you can appeal or pay, although legally, they will remain liable as it's issued to them, with their name printed on. This does not constitute a transfer of liability, which is a different thing.

 

So it comes back to you vs Zipcar - nothing to do with the Council. From what you have given above, Zipcar would send you details, and invite you to appeal or pay, "if they can". Did they do what was expected of them under the above agreement? And did you?

 

You mentioned before that Zipcar would give you five days to tell them what you intended to do. Did they?

 

It all boils down to a contractual dispute between you and Zipcar. It was legally their charge, and they can pay if they wish. It's how they handle their obligations to you which is important here.

 

 

I would add that Zipcar's terms above sound as if they do not understand the appeals process, as only the person named on the Notice to Owner can lodge an appeal. Even if you had appealed, it would likely have been rejected as you weren't liable legally in the first place - they were. They would need to lodge any appeal on your behalf, and sign it themselves as if it had come from them.

[tedd4]

They wrote to me to say that in this case the local authority refused to allow Zipcar to transfer liability over to me. Therefore, as Zipcar saw it, I broke the parking rules which I disagree with which they said they would appeal on behalf but only gave me less than five hours to send in to them. Therefore, no they didnt stick to their obligations in the handling of this 'violation' and they have ignored the letter I sent to them that shows them i was not going against the rules. They have deducted the charge of £130 plus a £15 handling fee.

[Jamberson]

They wrote to me to say that in this case the local authority refused to allow Zipcar to transfer liability over to me. Therefore, as Zipcar saw it, I broke the parking rules

 

 

 

The terms of the agreement which you posted above state, "If we can, we will redirect the violation to you. If we can't redirect it, we will pay the fine, along with any late fees", which is what they appear to have done.

 

 

 

 

they said they would appeal on behalf but only gave me less than five hours to send in to them. Therefore, no they didnt stick to their obligations in the handling of this 'violation' and they have ignored the letter I sent to them that shows them i was not going against the rules. They have deducted the charge of £130 plus a £15 handling fee.

 

 

Are the obliged to give you more than five hours? The terms say "We try to give at least 24 hours to respond to any violation notification" - which is not the same as saying they will do so.

 

 

 

In any case, this is not a parking issue. It's a contractual dispute between you and Zipcar and so you are unlikely to get any practical advise on this thread. You would need to post on another part of the site, where people can advise on contracts.

[tedd4]

Can you please expand on why you say the transfer of violation of liability from Zipcar to the driver/member onto a member isn’t in fact correct in terms of their process? Thank you

[Jamberson]

What I meant was - the person or company named on the notices issued by the council will be legally liable for the charge. There is a process by which that person/company can transfer legal liability to someone else, under certain circumstances.

 

 

 

However that did not happen in this case, and Zipcar's terms and conditions do not say it will. As there was no transfer, and they didn't say there would be, they have not broken ther agreement, and in this respect, have stuck to the process.

 

 

My initial confusion was because you used the term "transfer", when in fact there was no transfer - Zipcar just forward you copies of their own notices, offering you a chance to deal with them.

[tedd4]

I received a PCN from the London borough of Hackney I was driving a car club operated by Zipcar which is owned by Avis car UK. I received an email from Zipcar some 2 weeks later saying that the car had a PCN from the London borough of Hackney whilst in my possession.

 

This particular car club scheme was called Flex and allows you to park in any parking bay within the signed up participating borough. If it’s part of the other scheme,Roundtrip, the Zipcar standard scheme this has dedicated bays and these are the only authorised bays for parking then you are liable for any fine you receive.

 

The issue is that the car is registered to Avis and they receive the notice from the council directly until Zipcar transfer by email the violation notice. As such Zipcar denied the driver any option of paying the fine within the early eriod where the fine is at its lowest level, or appealing unless they transfer the violation which seems to be ad hoc. There is also a question as to the validity of the violation transfer.

 

After objecting to Zipcar about this in the past this they now gave up to 5 working days before they paid for the PCN and charging it to my account. This time I wrote back on the day they informed me of the violation, they responded and said in their judgement I did park in an unauthorised bay which is not the evidence I have, and asked in an email at 9.20am for me to set out the appeal with the evidence by 2pm or they would pay the PCN. Of course, I work and I didnt see the email until later that afternoon. However, in this case, by making a payment (and charging an operating fee of £15) the chance to appeal is lost though I have had emails suggesting a retrospective appeal is made for a refund. I did in this case and the council wrote back to say its been paid therefore the matter is closed.

 

My understanding is this is a matter of contractual terms and this is what they say bearing in mind I became a member in 2012 and these were updated in 2017, and I cannot recall seeing these amendments in an email or letter sent to me in the interim period:

 

 

 

Traffic Violations

11.1

You are responsible for any traffic violations incurred during your reservation or as a result of your use of a Zipcar vehicle. These include, but are not limited to parking, speeding, red light, photo enforcement, and toll violations. You are liable for all penalties/fees from any such violation, including fines for late payment and any processing penalties/fees added by the issuing municipality. You are liable for payment of all tolls and any fines for toll evasion. Wherever possible it is the Member's responsibility to pay the relevant authorities directly. Zipcar may impose a fee in connection with processing any such violations. See our Additional Charges Schedule. You must report such violations to a Zipcar representative as soon as possible within the prescribed deadline for the violation (for example, if the case is being taken to court).

 

11.2

You must notify Zipcar of any traffic violation notices found on a vehicle at the time of pickup of the vehicle. All unreported traffic violations will be the responsibility of a Member if they occur during the time period during which such Member is using or is responsible for the Zipcar vehicle.

 

11.3

At the end of your use of a Zipcar vehicle and/or reservation, you must not leave a vehicle in a zone which has parking restrictions or which is not within the Designated Parking Zone or a Zipcar Roundtrip vehicle anywhere which is not its Dedicated Parking Space. If you leave the vehicle in such a restricted zone, you must immediately notify Zipcar, and you will be responsible for any and all violation notices, parking charges or towing charges incurred by Zipcar.

 

11.4

Where a violation, incurred during the Member's reservation period or after it as a result of failure to adhere to parking regulations, is sent directly to Zipcar, Zipcar will either pay the penalty/fee on behalf of the Member and then add the penalty/fee to the Member's account or Zipcar may, if permitted by the authority issuing the violation, transfer liability for the penalty/fee notice to the Member and the Member will then be wholly responsible for all correspondence with the appropriate authority and any penalties/fees due. Zipcar will always inform a Member which one of these two courses of action it has taken, and will endeavour to provide notice to Members before it pays any penalties/fees attributable to them. Once paid by Zipcar, it may not be possible for the Member to challenge the penalty/fee. The right to appeal, or transfer liability, on any traffic or parking charge issued by any authority or body belongs to Zipcar and will be at Zipcar's absolute discretion. In the case of speeding notices or traffic violations, Zipcar is obliged by law to pass on the offending Member's details to the police who will then contact the Member directly.

 

This is the email trail regarding the ticket:

Email 1 : Mr X (Zipcar UK)

Jun 8, 14:37 BST

 

Hi T,

 

We recently received a PARKING violation. We checked out the violation notice, and it was the result of your recent trip with ****** on Mar 20, 2018, 2:25 PM GMT - Mar 20, 2018, 2:53 PM GMT. (ticket number QZ* ).

 

After receiving this notice, we paid the violation on your behalf, to ensure that our vehicle was free of any obligations and ready to be reserved by our fellow members.

 

Because of the violation and the associated processing fee, please note that we have added a pending charge of £ 145.00 to your account invoice.

 

If you have already paid for this violation prior to our correspondence, please send your proof of payment to [email protected] and we will gladly remove the fee.

 

If you would like a quick review on our violation policy, please visit: members.zipcar.co.uk/help

 

Thank you for being a part of the Zipcar community; we're grateful for your support in delivering a great service.

 

Regards,

 

Zipcar Member Services

 

Zipcar

Zipcar Member Services

 

Email 2; Ms D (Zipcar UK)

Jun 8, 09:36 BST

 

Dear Tedd44,

 

Thank you for your prompt response regarding Penalty Charge Notice QZ* issued to XXXXX.

 

Please be advised that you parked Zipcar Flex "paling in a Housing Estate when it is not permitted according to the Flex Parking Rules, therefore you have no valid grounds to appeal the fine and the appeal will most likely be rejected.

 

Nonetheless, if you still want to appeal it must be done through us, otherwise your appeal will not be taken into consideration.

 

Therefore, you must send us your appeal by 2pm today so we can forward it to the issuing authority on your behalf.

 

If we do not receive it by then we will pay the fine and will apply the associated cost to your account.

 

Furthermore, we always prefer to transfer liability so you can either appeal the notice or pay it directly to the issuing authority, but it is ultimately up to the issuing body's wishes how we proceed. Unfortunately, on this occasion it was simply not possible to transfer liability of this ticket to yourself hence why we must process it internally.

 

We look forward for your response as soon as possible.

 

Kind Regards,

 

Zipcar Operations Support

Zipcar

 

Zipcar Member Services

 

Email 3; Tedd4

Jun 7, 14:38 BST

 

Dear D

 

Thank you for your email but I do have the right to appeal.

 

As you said, Zipcar isn’t responsible for issuing the fines and therefore cannot be in a position to deny me the opportunity to appeal.

 

This has happened in the past and I had to retrospectively appeal and it took 12 months to get a refund once successful.

 

I believe the circumstances under which the fine was given was unfair and I will appeal. I am not authorising you to withdraw my funds for something that is not your responsibility for when ultimately you can transfer the liability to me.

 

Kind regards

 

T

 

 

On 7 Jun 2018, at 14:13, Zipcar UK wrote:

 

Email 4: D (Zipcar UK)

Jun 7, 14:13 BST

 

Dear T,

 

Thank you for getting in touch regarding Penalty Charge Notice QZ* issued to XXXX.

 

Please note that this fine has been issued as a result of Zipcar Flex "Paling" being left parked in a Housing Estate, Banister Housing Estate to be precise. Unfortunately Flex vehicles are bot permitted to be left parked in Housing Estates under any circumstances, this is stated in the prohibited parking places, please see here: Where you can't park.

 

Because the vehicle was left parked in contravention at the end of your booking and not according to the Flex Parking rules, we cannot successfully appeal this PCN and it has been correctly attributed to your account. I’m afraid we will therefore need to pay and apply the associated charge.

 

I understand that this is a frustrating situation, but we need you to remember that PCNs are not issued by Zipcar, but by the local authority. We try to accommodate our members as best we can, but we, as a company need to recover the costs of these fines from the members responsible.

 

Kind Regards,

 

Zipcar Operations Support

zipcar

Zipcar Member Services

 

Email 5: T

Jun 5, 13:57 BST

 

Dear Zipcar

 

This penalty fine was incorrectly issued and I shall be appealing the fine.

 

Please do not process payment and I will handle the ticket today.

 

Kindest regards

 

Tedd44

 

 

Sent from my iPhone

 

On 5 Jun 2018, at 11:47, Zipcar UK wrote:

 

Email 6: S (Zipcar UK)

Jun 5, 11:47 BST

 

Dear T,

 

We have received a Penalty Charge Notice QZ**** on XXXX. Unfortunately, having consulted our records I am sorry to inform you that responsibility has been attributed to your account.

 

The charge was issued after your booking for PARKING in Banister House Estate on March 20, 2018 15:59. Your trip ran from Mar 20, 2018, 2:25 PM GMT - Mar 20, 2018, 2:53 PM GMT.

 

We will pay the £ 130.00 charge in two days and will add this and a £15.00 processing charge to your bill then. The processing charge covers the cost to us of dealing with the large volume of notices that we receive.

 

If you feel this Notice was issued incorrectly and would like to appeal it, please contact us by responding to this email within this 2 day window.

 

If we do not hear from you the PCN will be paid and settled by Zipcar and the associated charge applied to your account in 2 days time. So if you are satisfied that the PCN has been issued correctly no further action is required by you.

 

If you have any queries please do not hesitate to contact us.

 

Regards,

Zipcar Member Services

 

Given that this was not paid with my authorisation, that there has been 2 different penalty fines quoted, that the time given to appeal is too short and that the date of the ticket being issued was 20 March 2018 at 15:59, and I was made aware of the PCN 5 June (and again 8 June) therefore missing the opportunity to pay the lesser of the fine, isn't Zipcar in breach of their terms and from the omission of giving timelines still liable for the fines and therefore unlawfully operating in a manner leaving the member for inappropriate liability and at a disadvantage in terms of processing violations. Infuriating that they have the nerve to charge a £15 handling fee. When I have won the appeal, they don't refund the £15 handling fee.

[dx100uk]

threads merged

please keep to one thread

 

dx

[Jamberson]

There doesn't seem much point in keeping on repeating the same thing. You are posting this on a forum about Local Authority parking, when your issue is not parking - it's a contractual dispute. You won't get any advice here - you need to ask elsewhere, to people who know about contracts.

[tedd4]

I posted it on General Legsl Issues but somebody transferred over to this thread. It does say they were merged so your finger wagging tone is misplaced. Perhaps you could vent your frustration to whoever put it here and leave it with someone who deals with contracts which is what the end of the post asks questions in relation to.

[dx100uk]

the merge kept the thread in its original forum.

 

I have now added to the title and moved it to the general legal forum.

 

dx

[Jamberson]

I posted it on General Legsl Issues but somebody transferred over to this thread. It does say they were merged so your finger wagging tone is misplaced. Perhaps you could vent your frustration to whoever put it here and leave it with someone who deals with contracts which is what the end of the post asks questions in relation to.

 

 

Are you for real? I've spent a good deal of my own time going over your posts and advising you, out of the kindness of my heart, and you reply to me like that. Learn some respect.

[tedd4]

Whilst I do appreciate the time you have spent giving me your opinion, you did tell me that I should post the question in relation to the legality within the realms of the contract. Having done what you recommended I am made to feel like I am repeating the same question to you when I did what you had said. If then when I do as instructed I am asked to keep my replies in the same place, can you not see that following your advice didn’t provide me with assistance, put me at the receiving end of your frustration with there being ‘no point on repeating myself’. I haven’t criticised your abilities but rather your tone of redress - that was disrespectful.