POPLA Appeal & Ethical Parking!

spoooky · 24 August 2014 at 10:31PM

Hiya,

After a bit of help, we got a parking fine whilst on holiday for not displaying a permit in the car. I have appealed to Ethical but surprise it was upheld so I have drafted my popla appeal, just wondering if you could cast your eyes over a see if its okay.

Dear POPLA,

I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for 'not fully complying with theconditions' so this Operator must prove the charge to be a genuine pre-estimateof loss. There is no loss flowing from this parking event because the parkingspace was outside the rental property we were vacating at, which was confirmedby the house/land owner as the parking space allowed for the property so therewas no loss of potential income in an off road parking space.

This Operator cannot demonstrate any initial quantifiable loss. Theparking charge must be an estimate of likely losses flowing from the allegedbreach in order to be potentially enforceable. Where there is an initial lossdirectly caused by the presence of a vehicle in breach of the conditions (e.g.loss of revenue from failure to pay a tariff) this loss will be obvious. Aninitial loss is fundamental to a parking charge and, without it, costs incurredby issuing the parking charge notice cannot be said to have been caused by thedriver's alleged breach. Heads of cost such as normal operational costs andtax-deductible back office functions, debt collection, etc. cannot possiblyflow as a direct consequence of this parking event. The Operator would havebeen in the same position had the parking charge notice not been issued, andwould have had many of the same business overheads even if no vehicles breachedany terms at all.

2) Lack of signage - no contract with driver

I see that the sign is placed on a post on a gate which is on a crossroadjunction which has double yellow lines, making it unsafe to stop and read, dueto other various signs stating car clamping, private road, security guards etc...Madeit confusing for the driver and time consuming reading the various signs. Also there were numerous other cars parkedwith no permits and parked under signs that stipulated no parking.

A Notice is not imported into the contract unless brought home soprominently that the party 'must' have known of it and agreedterms. The driver did not see any sign; there was no consideration/acceptanceand no contract agreed between the parties.

3) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliantlandowner contract assigning rights to charge and enforce in the courts intheir own right.

BPA CoP paragraphs 7.1 & 7.2 dictatesome of the required contract wording. I put Ethical Parking to strict proof ofthe contract terms with the actual landowner (not a lessee or agent). EthicalParking have no legal status to enforce this charge because there is noassignment of rights to pursue PCNs in the courts in their own name norstanding to form contracts with drivers themselves. They do not own this roadand appear (at best) to have a bare licence to put signs up and 'ticket'vehicles on site, merely acting as agents. No evidence has been suppliedlawfully showing that Ethical Parking are entitled to pursue these charges intheir own right.

I require Ethical Parking to provide a full copy of the contemporaneous, signed& dated (unredacted) contract with the landowner. I say that any contractis not compliant with the requirements set out in the BPA Code of Practice anddoes not allow them to charge and issue proceedings for this sum for thisalleged contravention on this road. In order to refute this it will notbe sufficient for the Operator merely to supply a site agreement or witnessstatement, as these do not show sufficient detail (such as the restrictions,charges and revenue sharing arrangements agreed with a landowner) and may wellbe signed by a non-landholder such as another agent. In order to comply withparagraph 7 of the BPA Code of Practice, a non-landowner private parkingcompany must have a specifically-worded contract with the landowner - notmerely an 'agreement' with a non-landholder managing agent - otherwisethere is no authority.

4) Non-compliant Notice to Keeper - no keeper liability established underPOFA2 2012

On the NTK, the 'period of parking' is shown between 16:28:58 To:16:39:24 and the time of breach as 16:40, so the time of issue of an allegedPCN, which was less than 11 minutes, due to the numerous contradicting signageand determining which signs are relevant would in fact take more than 11minutes including parking your car in a safe area away from the cross roadjunction and double yellow lines does not provide ample time to walk, read anddecide if you meet the supposedly terms of their contractual agreement.

5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore notbinding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999.The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens,states:
'18.1.3 Objections are less likely...if a term is specific and transparentas to what must be paid and in what circumstances.

A sign placed on a cross road junction with double yellow lines, is far from'transparent'.

Schedule 2 of those Regulations gives an indicative (andnon-exhaustive) list of terms which may be regarded as unfair and includes atSchedule 2(1)(e) "Terms which have the object or effect of requiring anyconsumer who fails to fulfil his obligation to pay a disproportionately highsum in compensation." Furthermore, Regulation 5(1) states that: "Acontractual term which has not been individually negotiated shall be regardedas unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant tosection 4(1) of the Unfair Contract Terms Act 1977 which provides that: "Aperson cannot by reference to any contract term be made to indemnify anotherperson (whether a party to the contract or not) in respect of liability thatmay be incurred by the other for negligence or breach of contract, except in sofar as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on signs placed on junctions in anattempt to profit by charging a disproportionate sum where no loss has beencaused by a car in a designated parking space for the holiday home. I put thisOperator to strict proof to justify that their charge, under the circumstancesdescribed that payment must now be made and if not paid by a certain date it willescalate in extra debt recovery costs, does not cause a significant imbalanceto my detriment and to justify that the charge does not breach the UTCCRs andUCT Act.

I have also been in contact with the landowner of the property we were vacatingat (who’s details I can provide) my disdain who also contacted Ethical Parkingregarding the cancellation of the contractual breach charge, so I thereforerespectfully request that my appeal is upheld and the charge is dismissed.

Thanks in advance.

Dee140157 · 24 August 2014 at 10:49PM

Your paragraph 4 keeper liability is totally wrong. You haven't understood what keeper liability is. Did you await an NTK or did you appeal a windscreen ticket? If the latter then keeper liability does not apply. If the former, the it depends on whether the. NTK fulfilled the requirements for keeper liability.

Look up some examples that appeal on this to see if applies to you.

Your paragraph on No. GPEOL needs more in it including Beavis rebuttal , although it is a good start. Look at some more examples linked to in post 3 of newbie thread.

There are many occasions where there are typos with words being joined so needs some more proof reading.

I think you need to sort of go back to the drawing board and stick a bit closer to examples in post 3 of newbie thread. But do include the paragraph about initial loss.

Coupon-mad · 24 August 2014 at 10:51PM

That's a good start as a draft. The weird formatting is because you've copied it from a Word document, and the same thing will happen in the POPLA webpage for submitting appeals unless you 'attach' it instead, and use Notepad instead of Word (I think).

Dee beat me to it but I agree with her post. The only point I take issue with is this:

4) Non-compliant Notice to Keeper - no keeper liability established underPOFA2 2012

which doesn't do what it says on the tin! It doesn't show why the NTK isn't compliant. If you are looking to say a NTK isn't compliant (which an Ethical one probably is NOT, so you are right to consider this angle), you need to compare the wording on the NTK with paragraph 8 of the POFA (where it was a windscreen ticket at first, like yours). There's a link to the Act in the first post of the Newbies thread under the example appeal.

Did you wait for a NTK? If so can we see it (change the http to hxxp to 'break' any link as you can't post them yet).

Have you never said who was driving at all?

spoooky · 24 August 2014 at 11:04PM

Thanks for the comments. No I didnt wait for the Notice to Keeper, I appealed a parking ticket on the windscreen so I see where I have gone wrong with that paragraph.

I have never admitted to who the driver was either.

Right back to the drawing board.

Coupon-mad · 24 August 2014 at 11:43PM

Aha - so you appealed as keeper without saying who was driving and they NEVER sent a NTK at all?! That's shed another chink of light you can exploit in a re-worded point #4!

OK so was the parking event more than 57 days ago (sends spooky off to count!).

spoooky · 25 August 2014 at 9:40AM

Yes I appealed as the keeper of the vehicle and they never sent a NTK at all just that there internal appeals department said they parking charge was valid and basically to pay up or I can appeal via popla

The date of the alleged parking event was the 2nd July so less than 57 days.

Coupon-mad · 25 August 2014 at 7:20PM

OK that is great news. So...how long do you have before your POPLA code expires as you are close to the 57 days! You can check on the Parking Cowboysl POPLA code checker (which I link in post #3 of the Newbies thread).

OK, so if you then submit your POPLA appeal AFTER day 57...and as registered keeper, you must add a paragraph 'No keeper liability since no Notice to Keeper was served'. And explain why...

This is amusing - I do like doing things this way as the PPC is stuffed. This is rarely explored as an option on this forum but it's there for the taking! You have appealed as keeper so they DON'T know who the driver is. Ethical aren't smart enough to realise that if the appeal is from the keeper they still have to send a NTK!

It's not rocket science - it's rather like the rules about a Council PCN where the Council HAS to send a NTO even if they get an appeal. Same in the POFA, if a PPC wants to invoke keeper liability they have to serve a NTK, notwithstanding an appeal outcome.

How do I know that have to send a NTK? Well look at the deadlines in paragraph 8 of Schedule 4 of the POFA (linked in post #1 of the Newbies thread if you want to read the very simple bullet points of the Act). It says in black and white, that following a PCN on the windscreen, a NTK has to follow not later than 56 days starting with the day after the PCN (so by day 57 it has to arrive with you).

There are no excuses. There is no get out where an appeal has been lodged. They have no 'wriggle room' where the appeal came from the keeper and the driver has never been identified! So...PPCs will say 'but there was an appeal so we couldn't pursue it'. Hmmm - tough then, that the Act doesn't cover that scenario!

Hope that makes sense. You win. I hope you are REALLY DARING as we'd like someone to do a POPLA appeal on this point alone some time!

spoooky · 25 August 2014 at 10:10PM

My deadline is the 8th September for POPLA. So counting 57 days is the 27th August (I have counted the day the fine was issued)

Here is my letter again I have took a few parts from other letters so I hope it makes sense. I have also tried to brush up on the links in the Newbies post.

I have copied/pasted but the formatting is a bit weird I have gone though it and checked that spaces should be where they are meant to be so apologies if I have missed any.

Dear POPLA,

I am the registered keeper and this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for 'not fully complying with the conditions' so this operator must prove the charge to be a genuine pre-estimateof loss. There is no loss flowing from this parking event because the parking space was outside the rental property we were vacating at the time of the incident, which was confirmed by the house/land owner as the parking space allowed for the property so there was no loss of potential income in an offroad parking space.

This operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach inorder to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs andt ax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage/clear signage - no contract with driver

I see that the sign was placed on a post on a gate which is on a cross road junction which has double yellow lines, making it unsafe to stop and read, due to other various signs stating car clamping, private road, security guards etc...Made it confusing for the driver and time consuming reading the various signs. Also there were numerous other cars parked with no permits and parked under signs that stipulated no parking.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

4) Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

The contractual breach charge was dated the 02/07/2014 and as the registered keeper of the vehicle the No Keeper was non-compliant due to the fact this was never served. A letter was sent to both Ethical Parking and the landowner requesting this contractual breach charge to be revoked once I was made aware by the driver that a supposed contractual breach charge had been served as the driver was under no impression that any infringement had occurred as the vehicle was parked in the designated space forthe property. Ethical Parking replied toadvise they had received the letter and then another letter dated the 11th August was received stating their internal appeals department had reviewed the contractual breach charge and advised to make payment.

On the contractual breach charge that was attached to the vehicle they express they are in accordance with the Protection of Freedoms Act 2012 stating that failure to make full payment within the specified time will result in the registered keeper details being requested from the DVLA to enforce this charge.

Under the Protection of Freedoms Act 2012 Paragraph 4, schedule 8 states: A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6 (1) (A) is given in accordance with this paragraph if the following requirements are met.

(2)The notice must—

Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
As this was never received they have not adhered to this act.

3) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their ownright.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking have no legal status to enforce this charge becausethere is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this road and appear (at best) to have a bare licence to put signs up and 'ticket'vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges intheir own right.

I require Ethical Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contractis not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention on this road. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions,charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply withparagraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - notmerely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Unreasonable/Unfair Terms

On the Contractual Breach Charge that was issued the 'period of parking' is shown between 16:28:58 To: 16:39:24 and the time of breach as 16:40, so the time of issue of an alleged PCN, which was less than 11 minutes,due to the numerous contradicting signage and determining which signs are relevant would in fact take more than 11 minutes including parking your car ina safe area away from the cross road junction and double yellow lines does not provideample time to walk, read and decide if you meet the supposedly terms of their contractual agreement.
The charge that was levied is an unfair term (and therefore not binding)pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are lesslikely...if a term is specific and transparent as to what must be paid andin what circumstances.

A sign placed on a cross road junction with double yellow lines, is far from'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who failsto fulfil his obligation to pay a disproportionately high sum incompensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regardedas 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".

The charge that was levied is an unreasonable indemnity clause pursuant tosection 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability thatmay be incurred by the other for negligence or breach of contract, except in sofar as the contract term satisfies the requirement of reasonableness.”

In the case of DunlopPneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The finding of Colman J in LordsvaleFinance Plc. -v- Bank of Zambia [1996] QB 752 was that “whether aprovision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...]deduced by comparing the amount that would be payable on breach with the lossthat might be sustained if breach occurred”.

Nor is the charge 'commercially justified'. If Ethical Parking cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking thatflawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.

I contend it is wholly unreasonable to rely on signs placed on junctions in anattempt to profit by charging a disproportionate sum where no loss has been caused by a car in a designated parking space for the holiday home. I put this Operator to strict proof to justify that their charge, under the circumstances described that payment must now be made and if not paid by a certain date it will escalate in extra debt recovery costs, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I have also been in contact with the landowner of the property we were vacatingat (who’s details I can provide) my disdain who also contacted Ethical Parking regarding the cancellation of the contractual breach charge, so I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad · 25 August 2014 at 10:46PM

Your numbering is 'out' as it reads 1, 2, 4, 3, 4.

This heading (whatever number it ends up being!):

4) Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

should be like this and with the wording I have shown instead of yours, I would suggest:

The second and third conditions required for keeper liability under the POFA 2012 have been missed, so there can be no keeper liability in this case.
I am the registered keeper and was not the driver, although I was an occupant of the car on this occasion. The fact that I was alerted to the PCN on the windscreen and appealed early on, does not make me liable because the Operator then failed to serve any Notice to Keeper whatsoever. That document is fundamental to keeper liability and the POFA 2012 makes no provision for its omission in any circumstances (even when the keeper happens to have appealed). Nor has this Operator made any application to the DVLA for my details as keeper.

So, the second and third conditions required for keeper liability have been missed by this Operator. A PCN (Notice to Driver) alone, followed by an exchange of communications about an appeal cannot meet the strict conditions of the Act. More than 57 days have passed since the date of the alleged parking event so these omissions cannot be addressed retrospectively and there can be no keeper liability.

Schedule 4 of the POFA states:
Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met;
6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8;
11(1)The third condition is that—
(a)the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;
(b)the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);
(c)the information sought by the application is provided by the Secretary of State to the applicant.

Final thought:
I would remove the 4 words in bold as you don't need to say again that you were in the car - the above is enough:

landowner of the property we were vacating at

We really must get someone to try the above as a single POPLA appeal point - and a single IAS appeal point!!

spoooky · 26 August 2014 at 8:32PM

Thanks I have hopefully sorted out all the line spacing and have got rid of my part for NTK yours sounds so much better!

So fingers crossed for Wednesday/Thursday that Mr Postie does not deliver a NTK. For the safe bet I will submit my appeal on Thursday as not sure if they count the day of the speeding ticket as 1 day.

Okay hopefully my final draft!

Dear POPLA,

I am the registered keeper and this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for 'not fully complying with the conditions' so this operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the parking space was outside the rental property we were vacating at the time of the incident, which was confirmed by the house/land owner as the parking space allowed for the property so there was no loss of potential income in an off road parking space.

This operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Lack of signage/clear signage - no contract with driver

I see that the sign was placed on a post on a gate which is on a cross road junction which has double yellow lines, making it unsafe to stop and read, due to other various signs stating car clamping, private road, security guards etc...Made it confusing for the driver and time consuming reading the various signs. Also there were numerous other cars parked with no permits and parked under signs that stipulated no parking.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

3) Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

The second and third conditions required for keeper liability under the POFA 2012 have been missed, so there can be no keeper liability in this case.

I am the registered keeper and was not the driver, although I was an occupant of the car on this occasion. The fact that I was alerted to the PCN on the windscreen and appealed early on, does not make me liable because the Operator then failed to serve any Notice to Keeper whatsoever. That document is fundamental to keeper liability and the POFA 2012 makes no provision for its omission in any circumstances (even when the keeper happens to have appealed). Nor has this Operator made any application to the DVLA for my details as keeper.

So, the second and third conditions required for keeper liability have been missed by this Operator. A PCN (Notice to Driver) alone, followed by an exchange of communications about an appeal cannot meet the strict conditions of the Act. More than 57 days have passed since the date of the alleged parking event so these omissions cannot be addressed retrospectively and there can be no keeper liability.

Schedule 4 of the POFA states:

Right to claim unpaid parking charges from keeper of vehicle

4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6,
11 and 12 (so far as applicable) are met;
6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8;
11(1)The third condition is that—
(a)the creditor (or a person acting for or on behalf of the creditor) has made an application for the keeper’s details in relation to the period of parking to which the unpaid parking charges relate;
(b)the application was made during the relevant period for the purposes of paragraph 8(4) (where a notice to driver has been given) or 9(4) (where no notice to driver has been given);
(c)the information sought by the application is provided by the Secretary of State to the applicant.

　

4) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this road and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges in their own right.

I require Ethical Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention on this road. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

5) Unreasonable/Unfair Terms

On the Contractual Breach Charge that was issued the 'period of parking' is shown between 16:28:58 To: 16:39:24 and the time of breach as 16:40, so the time of issue of an alleged PCN, which was less than 11 minutes, due to the numerous contradicting signage and determining which signs are relevant would in fact take more than 11 minutes including parking your car in a safe area away from the cross road junction and double yellow lines does not provide ample time to walk, read and decide if you meet the supposedly terms of their contractual agreement.
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A sign placed on a cross road junction with double yellow lines, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness."

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: "… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach".

The finding of Colman J in Lords vale Finance Plc. -v- Bank of Zambia [1996] QB 752 was that "whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...]deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred".

Nor is the charge 'commercially justified'. If Ethical Parking cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.

I contend it is wholly unreasonable to rely on signs placed on junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a designated parking space for the holiday home. I put this Operator to strict proof to justify that their charge, under the circumstances described that payment must now be made and if not paid by a certain date it will escalate in extra debt recovery costs, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I have also been in contact with the landowner of the property (who’s details I can provide) my disdain who also contacted Ethical Parking regarding the cancellation of the contractual breach charge, so I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad · 27 August 2014 at 3:08PM

Yep you will win...!

POPLA Appeal & Ethical Parking!

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