Parking Charge - Armtrac

Hmm, I'm reading all these appeals and I'm not so sure I have a case against them. I was afterall parking (quite clearly) over 2 bays. It's just that I had no idea what the protocall was for big vans and so I just put the maximum in for my vehicle.

Really not sure whether to be fghting this or not.

[FONT=&quot]Hey guys,[/FONT]

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[FONT=&quot]Thanks for the advice so far. Thanks to all the threads, here's what I have put together.

Can you tell me if you think this will work please? Do I need to change some stuff?
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[FONT=&quot]Many Thanks!
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[FONT=&quot]Dear POPLA,[/FONT]
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[FONT=&quot]I would like to confirm that I am not the registered keeper of the vehicle XXXXX and in addition I am not liable for PCN XXXXX issues by [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac). I am appealing the PCN on behalf of all parties involved in disputing the PCN. I wish to appeal on the grounds numbered 1 - 4 as outlined below:[/FONT][FONT=&quot][/FONT]
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[FONT=&quot]1. The charge is not a genuine pre-estimate of loss.[/FONT][FONT=&quot][/FONT]
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[FONT=&quot]The amount of the charge is disproportionate to the loss incurred by [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee)[/FONT]
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[FONT=&quot]The £100 is a sum 'plucked out of the air' by the operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) [/FONT][FONT=&quot]to explain and provide evidence and a breakdown of calculations behind this pre-estimate charge.

To support my claim, in the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If [/FONT]KBT Cornwall Ltd[FONT=&quot] presents what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac)[/FONT][FONT=&quot] to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:[/FONT]
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''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) [/FONT][FONT=&quot]made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'. [/FONT]
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I contend that the figure of £100 is a penalty clause in terrorem to deter breach, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''[/FONT]
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Additionally – As you can see the from the attached photos, the day that the PCN was issued, the car park was less than half full, meaning that the land owner/[FONT=&quot]KBT Cornwall Ltd (Armtrac) would have suffered no loss due to the vehicle in question. [/FONT]
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2. No standing/authority to form contracts with motorists

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[FONT=&quot]I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) lack of title in this land means they have no standing to allege trespass or toss, if that is the basis of their charge. I put [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.[/FONT]
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[FONT=&quot]I contend that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.

I believe there is no contract with the Landowner/occupier that entitles them to LEVY these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) to prove otherwise so I require that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) produces a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it.

Even if a basic contract is produced and mentions PCN’s, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) and the owner/occupier, containing nothing that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) can lawfully use in their own name as a mere agent, that could impact on a third party customer.

3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).[/FONT]
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[FONT=&quot]The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the Creditor not simply name them on it. This would require words to the effect of " The creditor is ". The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.


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[FONT=&quot]4. The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between KBT Cornwall Ltd and the driver[/FONT][FONT=&quot][/FONT]
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A lack of clear signs and legible wording creates no contract. The sign is not prominent and not reflective. I put KBT Cornwall Ltd to strict proof otherwise; as well as a site map they must show photos. 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 BPA code of practice (October 2012) contains the following:

18.2 Entrance signs, located at the entrance to the car park must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance.

KBT Cornwall Ltd signs in this car park are unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) KBT Cornwall Ltd has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.[/FONT]
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[FONT=&quot]Evidence that the signage in this carpark is unclear can be found in the documentation sent from [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] on the XXXXX. As you can see, [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] has sent a photograph of a WARNING notice which appears to be pinned to an office wall. I wish to point out that photographing a poster on a wall is not evidence of the signage. [/FONT]
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[FONT=&quot]Furthermore, the photographic evidence that they have sent of the signage in the carpark adequetly demonstartes that the signage is written in a font so small that even a photograph taken from three meters away can not acuratly resolve the font used, meaning that a driver entering the car park would neither be able to read and understand the text, nor have the relevant information on which to base a contractual descision.[/FONT]
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[FONT=&quot]Additional information;[/FONT][FONT=&quot][/FONT]
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The reason for issueing the PCN is unclear. The reason stated on the PCN is “The vehicle was causing an obstruction”, however, as you can see from the attached photos, the vehicle in question is not causing an obstruction to traffic or pedestrians. In [/FONT][FONT=&quot]KBT Cornwall Ltd’s corrospondence on the [/FONT][FONT=&quot]XXXXX[/FONT][FONT=&quot], they have stated that the reason from the PCN was for “[/FONT][FONT=&quot]Not Parked Wholly Within Bay[/FONT]”[FONT=&quot]. I would like to draw your attention to their own signage that states “any vehicles parked outside of marked bays will be issued with a Parking Charge Notice”. Emphasis on “Bays” being plural, the vehicle is most certainly parked within the “bays”. They have also added that that the driver should have bought a second ticket whilst parked across two bays. Upon further inspection of their terms and conditions, I can find no evidence that KBT Cornwall Ltd have stipulated that a large vehicle covering two bays must purchase two tickets. Given that the carpark destination is a seaside resort and frequently visited by camper-vans, KBT Cornwall Ltd should have had the foresight to have stipulated a protocal for such an event rather than relying upon the driver to assume prootcal. [/FONT]
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[FONT=&quot]As you can see in the photos attached at the pay point, the maximum fee is £4.90. Considering that all of KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) signage consistantly refers to the “vehicle”, it would be fair to deduce that the maximum fee stipulated on the pay machine of £4.90 is “per vehicle”[/FONT][FONT=&quot]. That is the amount that was purchased for the said vehicle on the day that the PCN was issued. Furthermore, had there been a second ticket attached to the said vehicle, would that have abosolved the supposed offence of being parked outside of the marked bays? This appears to be a very deliberate bluring of the rules in order to impose an unreasonable charge.[/FONT]

Armtrac failed to respond to my initial appeal within the 35 days promised in their letter dated [FONT=&quot]XXXXX[/FONT]. They in fact took 57 days to respond and consequently, by the time their response was received, the POPLA verification code had only 1 day before expiration, meaning that there was not enough reasonable time to assemble an appeal. Having read of numerous similar cases, I believe that Armtrac are deliberately using this delay tactic in order to avoid having disputes brought against them and in doing so are making a mockery of the entire appeals process.

[FONT=&quot]l submit this purported charge is not legal [/FONT][FONT=&quot]and therefore respectfully request that my appeal is upheld and the charge is dismissed [/FONT][FONT=&quot]and that [/FONT][FONT=&quot]KBT Cornwall Ltd[/FONT][FONT=&quot] (Armtrac) should cease pursuing this forthwith. [/FONT]