As you know Mr Mustard helps people with their Barnet Council parking woes and the appeal process. When friends get a private parking ticket he simply tells them to throw it in the bin. Here in this guest blog by Nutsville, visit their website for this particular post here (on Mr Mustard's visit to the home page all of the youtube clips played at once which is an assault on ones ears and he will mention it to the anonymous author of Nutsville) and then why not look back through their other very interesting and accurate blog posts.
Solicitor (S): Good morning Mr Weasel. What can I do for you today?
Parking Weasel Ltd’s Chairman (PWC): I would like to get my hands on the money Nutsville owes me for overstaying in a private car park where me and my company run the parking enforcement.
S: Ok. Just a couple of questions. Are you or your company the land owner?
S: Do you have permission from the land owner to enforce on their land?
S: Do you have a contract with the land owner that establishes their loss?
PWC: It’s not their loss I’m worried about, it’s mine. That Nutsville bloke took me through the whole of that poxy Popla procedure, which incidentally cost me £27 + VAT that I will never see again, and even though his appeal was disallowed by Popla and he was ordered to pay me, he is now ignoring me and telling me that I should sue him in the courts to recover my money.
I’ve sent him loads of letters with BIG, RED SCARY WRITING on, and he still insists that I need to sue him. What I want to know is, now I’ve got my Popla judgment, why can’t I just register it with the court like the local authorities do with their Patas and TPT judgments, and then send my bailiff mates round to threaten him with menaces and make him cough up?
S: Unfortunately for you, Mr Nutsville is right. I will explain. You see, the ADJUDICATORS at Patas and the TPT draw their powers to make judgments on parking issues fom the Traffic Management Act 2004. Under that Act they can effectively make the equivalent of a judgment that a county court judge might make in civil proceedings. It is these equivalent county court judgments that are then registered with the county court (the TEC in Northampton) and which makes them enforceable, normally by way of sending the bailiffs round.
However, no such powers devolve from any Act of Parliament when it comes to Popla. Therefore the Popla ASSESSORS, (who incidentally the No To Mob have found out are actually 4 law students doing a bit of moonlighting) cannot order you to do anything. If someone like Mr Nutsville loses an appeal to Popla there will be a decision that says something like “In order to avoid any further action by the operator, payment of the £80 parking charge SHOULD be made within 14 days.
PWC: That’s right! That’s exactly the decision we got from Popla in the Nuts case, but he won’t pay up and insists I take him to court. So what exactly did I pay all that money to Popla for then?
S: Well nothing really. You see any Popla decision in the operator’s favour isn’t worth the paper it’s written on because it cannot be enforced in a court of law, either against Mr Nutsville, or anyone else come to that. However, if Popla had allowed Mr Nutsville’s appeal then you, like every other BPA Ltd operator in the Approved Operator Scheme, have no other right of appeal and you are bound by the decision of the law student that gave it.
PWC: So basically, what you’re saying is that Popla is just a smoke screen put up by the BPA Ltd in the hope that we can bully people into paying up, and that it has no real power?
S: That about sums it up.
PWC: So what did I pay £27 + VAT for then?
S: Perhaps you should ask the BPA Ltd about that. But anyway, all is not lost. You can still sue Mr Nutsville in the county court provided you can prove you have incurred a loss.
PWC: Now you’re talking! How do I do that then?
S: Well since you are not the land owner, you have to have a contract in place that proves that the land owner has lost money as a result of breaching the contract Mr Nutsville entered into with the land owner when he agreed to pay a Parking Charge for overstaying in the land owner’s car park.
PWC: And for those of us who speak English?
S: (Sigh). Right. Let’s break this down. Who is the landowner?
S: Do you have a contract with them to enforce parking on their land?
S: In short, what are the terms of that contract?
PWC: They let my company dish out as many tickets as we want, then we get to keep most of the profits, and give them the rest.
S: In that case you can’t sue Mr Nutsville.
PWC: Why not?
S: Because you have no loss.
PWC: There you go with that bloody “loss” thing again! I’ve told you, I’VE LOST EIGHTY BLOODY QUID!!!
S: Who did you lose it to?
PWC: I keep telling you. Nutsville!
S: And how did you lose it to him?
PWC: Right! Well he came to the car park and arrived at 11.00am. He admits he read our signs which say that there is free parking for one hour and that if he stays longer he will contract with my company to pay an £80 Parking Charge. Nutsville stayed until 12.30pm and we are now enforcing that contract.
S: So far, so good. Now, if you want to sue Mr Nutsville for recovery in the county court you have to prove in your claim that you have actually lost something. You can’t have lost anything because you are not the landowner. Only the land owner can say they have lost something. You have lost nothing so you can’t sue Mr Nutsville. QED.
PWC: What about if I take him to court anyway, cos I still reckon Nutsville owes me under the contract terms?
S: (Sigh). Ok. Where’s your “genuine pre estimate of loss”.
PWC: There you go with all that legal mumbo jumbo again. What are you on about now?
S: Have you read the BPA Ltd’s code of practice?
PWC: Course I have! I had to sign up to it before I could get access to the DVLA database, which is where I get all those lovely vehicle keeper’s details which allow me to send my scary debt collection agency and solicitor’s letters with BIG, RED SCARY WRITING on.
S: Then because you have read it, you will know that at rule 19.5 of the code of practice it says “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.” Obviously the BPA Ltd are aware of this issue or they wouldn’t have put it in their code of practice and then make you sign up to it. So I repeat, where’s your “genuine pre estimate of loss”?
PWC: I dunno. Maybe we ain’t got one.
S: Oh dear! It would seem that YOU are the one in trouble then. I have just proved to you that you cannot prove that you have suffered a loss, and yet the BPA Ltd have made you sign up to the BPA Ltd code that says you have genuinely estimated a figure of £80 as your provable loss. If the DVLA find out about this you will be struck off immediately.
PWC: What! Do the BPA Ltd know about this!?!?
S: Well obviously they do, otherwise they wouldn’t have covered their backs by putting it in their code of conduct. Wait a minute though! There is something the BPA Ltd and you could do to remedy this.
PWC: Please, please tell me what it is. I can’t lose my livelihood.
S: Well I can’t say that it will save your livelihood, but it might help save other BPA Ltd members from making the same mistakes as you.
PWC: Well I do have a load of mates in the industry, so if there is anything I can do to help them, I’m sure it would be much appreciated.
S: In that case, this is what you do. You fess up to the BPA Ltd that you have made a mistake, and tell them that you are trying to rectify it. I hear the No To Mob have a few good ideas about this and that they are already advising some other BPA Ltd members about setting up an alternative to the BPA Ltd. You will have to take your medicine, and hope that because you have owned up, the DVLA will allow you to access the database again once you have cleaned up your act.
PWC: Ok. What then?
S: Then you lobby the BPA Ltd and ask them to invoke their powers to audit each of its members in order to establish whether they have a proper and genuine pre estimate of loss. They could do this by invoking rule 19.8 of their code of practice which states: “If you are asked, you must be able to justify the level of parking charges to the AOS Board, a member of our compliance team or to their specified agent.”
PWC: But what if the auditors find out that none of the BPA Ltd’s members can prove a loss? What happens then?
S: Well then the BPA Ltd would have to report this to the DVLA, and they would have no choice but to suspend any offenders from using their database.
PWC: But why didn’t the BPA Ltd warn me about this? What am I paying them for?
S: Those are questions for the BPA Ltd Mr Weasel, not for me.
PWC: Well how about I let Nutsville off, but continue to send out tickets to others in the full knowledge that some of them won’t be as smart as Nutsville and will pay up under threat of issuing court proceedings, even though I know that I can’t ever bring a successful prosecution in a court of law?
S: My professional opinion is that if someone were to find out, then such behaviour could very possibly be classified as committing a fraud and that you and others could end up going to prison, or at the very least paying a hefty fine.
PWC: Yeh, but you can’t tell them what advice you’ve given to me because of solicitor client privilege, so I can have plausible deniability for a while at least.
S: That’s true, but you have forgotten one thing. What if the BPA Ltd do a proper audit of your books and discover that you don’t have a genuine pre estimate of loss?
PWC: Are you ‘avin a laugh pal!?!? Why would they ever do that when they know that what they might find could result in the vast majority of its members being suspended, possibly permanently, both from the BPA Ltd and from using the DVLA database. Nah mate. Just send me your bill and keep your mouth shut. We just have to hope that Nutsville doesn’t get wind of this, or we’re all up a shit creek without a paddle.
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Three cheers for Nutsville and their fab work.