POPLA appeal (thanks to everyone who can help to check)

PPC says one thing about Beavis. We say something else (and our interpretation is correct.)

My bet is the average adjudicator and even DJ is not conversant with the full content of Beavis.

I wish I had bookmarked the relevant sections from an earlier thread that made the points that supported appellants and drew the difference between the Beavis circumstances and other cases such as this one so that OP could incorporate them in their appeal.

If anyone has the relevant paragraphs and can post them up here, would they please do so?

In addition to salmosalaris' words which I've included at the end, below for the rebuttal I would say this:



I wish to rebut UKPC's evidence in its entirety and am not liable to pay £90.

UKPC say 'Please find attached a copy of the contract.' I contend this is not with the actual landowner and does not show that the signatory is an authorised agent of the landowner either. It is an alleged 'agreement' between two agents but fails the strict requirements of the BPA Code of Practice for landowner contracts and does not show that any authority flows from the party with title in this land.

UKPC seem unsure as to the rationale behind their disproportionate charge and can't have it both ways. On the one hand when talking about the UTCCRs, they say ''We reject the notion that our charges require consumers ‘to pay a disproportionately high sum in compensation’ in its entirety and assert that our charges are a genuine pre-estimate of loss.''

Yet when hanging on the coat-tails of the non-comparable decision in ParkingEye v Beavis they assert the opposite: ''the POPLA Appeal mentions Genuine Pre-Estimate Of Loss, however this charge does not represent this at all.''

So which is it? I assert that they have failed to show that this charge is not merely a penalty, bearing in mind that the Beavis case confirmed that the 'penaly rule' is certainly engaged in parking charge cases and it is up to the operator to show enough consistent information - bearing in mind the facts of each case - to disengage it.

The facts here differ significantly from the Beavis case. UKPC have admitted that they would have been happy to have accepted £15 because the car does have a permit. This £15 was not paid, purely because UKPC were wrong to assert the permit was not displayed and their pursuit of money was unfair and based upon skewed 'evidence'. It was displayed and as has been the case with UKPC in recent months, their photo evidence is often misleading as was certainly the case regarding this permit:

http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

This sum of £15 sets this case apart from the Beavis case because that is the sum that UKPC admit they would have accepted to resolve the dispute after the event. There is no such comparator in the Beavis case. Unlike in Beavis, here we have a quantified 'loss'. Unlike in the Beavis case where there was free parking offered under licence first and no quantified sum under £85.

A sum of £15 which would have been accepted for settlement after the event cannot suddenly escalate to £90. At no point did the driver consent to pay £90 at the point of parking, in any case, because they did not contravene any terms and the signs are pale and illegible. UKPC's own evidence shows the sum of the parking charge cannot be read, is not transparently displayed and is not in the 'large lettering' which convinced the Judges in the Beavis case.

It is not enough to just 'have some signs up'. The actual sum of £90 MUST be very clear, transparent and 'very prominent in large lettering' (words from the Beavis case - also the long established 'red hand rule' of Lord Denning applies to such an onerous term). Yet here, £90 was not displayed in that manner, you have to squint at the UKPC sign picture to make out anything at all and that was deliberately taken close up by their employee on the day. Even the operator themselves cannot show a clear picture.

So the elements of a contract to pay £90 were missing; no consideration flowed from the driver and none from the operator either (unlike in the Beavis case). The elements of a contract are fundamental, as is evidence of breach, and neither exist here (unlike in Beavis).

This is an unfair 'price escalation clause which is an unenforceable penalty an unfair under the UTCCRs (now incorporated within the Consumer Rights Act 2015). UKPC have quoted the regulations themselves which state:

''the unfairness of a contractual term shall be assessed, taking into account the nature of the goods or services for which the contract was concluded and by referring, at the time of conclusion of the contract, to all the circumstances attending the conclusion of the contract and to all the other terms of the contract or of another contract on which it is dependent.''

So the Regulations say the same as the Beavis Judges were at pains to make clear; everything depends on 'all the circumstances' of each case. And the circumstances of an operator being prepared to accept £15, as here, set this apart from Beavis and UKPC have quantified the only loss that could feasibly/fairly be pursued in this case. Yet this firm with previous 'form' recently (in the same months as this parking event) for doctoring evidence photos, are relying upon an unfair set of photographs taken at a skewed angle! The permit can be seen from the photos taken by UKPC. Their photo did not show the permit number, however this is caused by the photo not being taken at an appropriate angle. Through other angles, the permit number can certainly be seen from outside which complies with the rules absolutely.

Considering all the facts of this case, this charge is unconsionable, not contractually agreed, disproportionate when compared to £15 and blatantly unfair in the circumstances of skewed photo angles and pale illegible signage. UKPC are not saved by the Beavis case at all where it was stated that charges cannot be set in order to punish.

UKPC seem to be under the misapprehension that the Supreme Court judgment was a green light legitimising all frivolous parking charges.

It is in fact quite the reverse and makes plain that in each individual circumstance the operator must have a legitimate interest in enforcing the charge and that charge must be proportionate to that interest to avoid the charge being an unenforceable penalty. In this case they do not, it is not and it does not.

There is no legitimate interest in enforcing a charge against a motorist who had every right to park simply because they allegedly failed to display the operator's permit (which is both denied and not required anyway despite what the operator's signage may state). The charge is simply being enforced in an attempt to punish the motorist for an alleged inadvertent mistake solely for the operator's profit, that is not a legitimate interest.

Even if a permit had not been displayed (which is denied) the charge is extravagant, unconscionable and disproportionate with reference to such a mistake when nobody else is inconvenienced or affected in any way as the vehicle had every right to park as it did.

None of the reasons that gave Parking Eye a legitimate interest that disengaged the penalty rule in their case against Mr Beavis are present in this case in which the penalty rule remains firmly engaged.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment.

Even if there is a legitimate interest in issuing a ticket because it was believed the vehicle had no right to be there, that is simply not enough. There must be a legitimate interest in enforcing the charge and as the appellant has demonstrated they had every right to park and there was no contravention and no contract agreed to pay £90, there is no legitimate interest in enforcing it in this case. Indeed the operator has failed to reveal any legitimate interest they may have in enforcing a £90 charge in this case and has tried desperately to argue two diametrically opposed rationales for this sum.

I believe the facts of this unfair parking charge are such that POPLA should uphold my appeal, considering all the circumstances.

I would also work in the essential difference between Beavis and your admin slip up for parking in your own space.

It is best summed up in the words of the Supreme Court who allowed the Beavis charge to stand because in their judgement

286. ParkingEye had a legitimate interest to protect. It provided a service to its clients, the owners of the retail park which leased units to retailers. It undertook to manage the car park in a way which benefitted the owners and the retailers and also the public seeking to visit units within the retail park by encouraging the public to remain in the car park for no longer than two hours. ParkingEye imposed the parking charge in order to encourage the prompt turnover of car parking spaces and also to fund its own business activities and make a profit.

In your case, the nearest parallel to the client whose interests were being protected was you yourself!