POPLA Decisions

ampersand · 19 September 2014 at 11:40AM

Well done:-)

I especially liked this: ' I find that duplicate costs have been included, for example,
“appeal writing” costs have been listed twice.'

QueasyRider · 19 September 2014 at 11:42AM

I won my POPLA case today. Hooray! Thanks to all on the forum for help and advice, it definitely worked for me.

Here's my original submission to the parking company:

To: CP Plus
PO Box 3573
Barnet
EN5 9QA

From: XXXXXX

Dear Sir or Madam

Notice Ref No: XXXXXXX

Vehicle Reg: XXXXXXX

I am in receipt of your “Charge Notice” dated 17/07/2014 relating to the above vehicle parking at MOTO motorway services Knutsford South on 11/07/2014.

Having taken legal advice I believe this ticket to be unfairly issued and I will not be complying with your demand for payment.

According to the Unfair Terms in Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case, the £50 or £100 charge you are asking for far exceeds the cost to the landowner. According to the Moto website as at 28/07/2014, the parking charge for staying between 2 and 24 hours is £16.00.

Whilst I do not accept that the driver of the vehicle entered into a fair contract with Moto or CP Plus in failing to pay this amount at the time of the parking event, I am prepared to settle the matter by paying the £16.00 parking charge that the driver would have paid, had the full details of the contract been made clear at the time. Please therefore re-submit your invoice for this amount.

Yours sincerely XXXXXX

The above was rejected by the parking company; I appealed to POPLA on the grounds that the charge is not a genuine pre-estimate of loss.

The evidence pack from the parking company included a break-down of costs (unfortunately it was sent to me as an image file which I can't copy and paste into here); the costs mostly related to the cost of administering the appeal! I sent this additional email to POPLA:

Dear Sirs

Verification Code: xxxxxx

(xxxxxx v CP Plus Limited)

With reference to the above case I note that that parking operator, CP Plus Limited, has now submitted an evidence pack. Within the pack they have itemised their losses in order to show that the parking charge (£100) is proportionate to their costs (£103.13).

I would like to point out that a significant proportion of these costs relate directly to defending the POPLA appeal itself (see table of costs on page 3 of the evidence pack – items marked as “Responding to Appeal” and “Responding to POPLA Appeal” amounting to a total of £82.81).

In my original representation to CP Plus Limited (please see section E of the evidence pack) I quite clearly offered to pay the £16 fee that I would have paid had I realised there was a 2 hour free-parking limit.

Had CP Plus Limited accepted this offer, I would not have needed to make an appeal to POPLA and CP PLus Limited would not have incurred the costs they claim are associated with the appeal.

I do not think it is fair and reasonable for CP Plus Limited to refuse my offer to pay which would, by their own admission, have substantially reduced their costs and then claim from me the costs they have incurred in defending an appeal that they themselves forced upon me!

Your sincerely
XXXXXX

The POPLA decision is as follows:

Reasons for the Assessor’s Determination

[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Operator issued parking charge notice number XXXXX arising out of the presence at MOTO Knutsford South, on 11 July 2014, of a vehicle with registration mark XXXXXX. [/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Operator recorded that the vehicle remained at the site for longer than 2 hours without purchasing a valid parking tariff. [/FONT][/FONT]

[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Appellant has made various representations; I have not dealt with them all as I am allowing this appeal on the following ground.

It is the Appellant’s case that the amount of the parking charge notice does not represent a genuine pre-estimate of loss.

The Operator has submitted a breakdown of the losses incurred as a result of the breach. I find that a percentage of the amount comes from overhead costs.

Considering carefully, all the evidence before me, I find that overhead costs are a general operating costs which would have been incurred whether or not the breach occurred and can consequently not fall within a genuine pre- estimate of loss, in this case, the Operator is claiming their overhead costs to be a loss. I find that this is not a loss incurred as a result of the Appellant’s breach. Therefore, on a balance of probabilities, I am not satisfied that the Operator has sufficiently shown that the items referred to are substantially linked to the loss incurred by the Appellant’s breach.

Accordingly, this appeal must be allowed.

[/FONT][/FONT]Amber Ahmed

[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Assessor
[/FONT][/FONT]

[/FONT]

Thanks again to this great forum for all the help! Good luck to those about to appeal!

Cheers.

Computersaysno · 19 September 2014 at 11:49AM

Skunkontoast wrote: »

The operator has responded by stating that the amount of the parking charge is a term of the contract and not an amount representing damages for a breach of contact. The operator has also provided a breakdown of the losses incurred by them if the amount of the parking charge notice is held to be an amount representing damages for a breach of contract. I find that it is not permissible for the operator to do this.
This is because when a contract is formed the intention of the parties is fundamental.
It is clear that the operator has intended the amount of the parking charge notice to be consideration and not damages.

This is really interesting in that the assessor has stopped the scumsters having two bites of the same apple.

Scumsters are trying to say 'the £100 is a contractual charge, but just in case you find it's not a contractual charge we'll also say it's damages'.

Assessor says 'Dream on, it's one or t'other'

Well done to the assessor.

zhjt109 · 20 September 2014 at 11:48AM

I won my popla appeal thanks to a lot of help from forumites!

Here's my submission -

Car Reg : xxxx xxx
Location: : Mill Road Car Park, Arundel Castle, Arundel
Date of PCN issue : xxxxx
PCN Number : xxxxxxx

POPLA Verification Code: xxxxxxxxx

Dear POPLA,

I am the registered keeper & my appeal is on the following grounds:

1) The Charge is not a genuine pre-estimate of loss
2) Misleading Signs
3) Lack of standing/authority from landowner
4) Unreasonable/Unfair Terms

1) The Charge is not a genuine pre-estimate of loss
The Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event. The reason for issue is recorded as “no valid parking ticket”. I had paid the £5 parking fee for the day when I arrived, but the ticket fell off the dashboard. I have the ticket as evidence and I include a copy of the ticket in question.

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, but does not apply in this case. 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.

The British Parking Association Code of Practice uses the word 'MUST':
"19.5 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.''

Neither is this charge 'commercially justified'. In answer to that proposition from PPC in relation to the decision made in ParkingEye v Beavis (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...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 Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine 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”. Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he 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."

2) Misleading Signs
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading, with wording that dresses up the charge as a 'contractual' fee. It is not; see point 1 a).

There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UK Parking Patrol Office and not expecting to read a contract when they park in a field. It would be necessary for any signs in the field to be so prominent that the terms must have been seen/accepted by the driver. That is not the case; the sign was high up and in very small font.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

The signs there are certainly not 'startling'. Nor was there any lighting at night to illuminate the terms. The signs there now are few and far between. The restrictions were not obvious and nor were the terms drawn to the driver's attention - and certainly not the risk of any hefty 'charge'.

I don’t even recall seeing any notices - without that, there is no contract at all.

3) Lack of standing/authority from landowner
UK Parking Patrol Office has no title in this land and has 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 UK Parking Patrol Office to strict proof of the contract terms with the actual landowner (not a lessee or agent). UK Parking Patrol Office 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 car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UK Parking Patrol Office are entitled to pursue these charges in their own right.

I require UK Parking Patrol Office 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 in this car park. 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.

The BPA Code of Practice reads "If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. " If the contract is with a management company rather than the landowner, then I seek written proof that the agent has that authority.

4) Unreasonable/Unfair Terms
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.

An unlit sign of terms placed too high to read, 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 fulfill 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.”

I contend it is wholly unreasonable to rely on unlit signs in small font in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a car park. I put this Operator to strict proof to justify that their charge, under the circumstances described.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

The assessor’s decision

"The onus is on the operator to sufficiently address the appellant's points and to prove its case on balance of probabilities. The operator has provided a copy of the customer license agreement to show that they can process and enforce parking charge notices, however, the licence contains only an address for the customer and does not have the name of the customer and appears to be invalid. A valid contract shall contain valid names for both parties of the agreement and this one does not comply with this requirement. The operator has not discharged the burden of proof. Accordingly, I allow this appeal".

The assessor was Aurela Qerimi

flickaoflife · 20 September 2014 at 6:58PM

I won mine !!

Here is the letter explaining why I won:-

1771884003 2 17 September 2014
Reasons for the Assessor’s Determination
On 12 June 2014, the Appellant was issued with a parking charge notice for breaching the terms and conditions of the parking site.
The Operator recorded that the vehicle remained at the site in excess of the 2 hour free parking period.
The Appellant has made various representations; I have not dealt with them all as I am allowing this appeal on the following ground. It is the Appellant’s case that the amount of the parking charge notice does not represent a genuine pre-estimate of loss.
The Operator has submitted a breakdown of the losses incurred as a result of the breach. I find that a percentage of the amount comes from overhead costs.
Considering carefully, all the evidence before me, I find that overhead costs are a general operating costs which would have been incurred whether or not the breach occurred and can consequently not fall within a genuine pre- estimate of loss, in this case, the Operator is claiming their overhead costs to be a loss. I find that this is not a loss incurred as a result of the Appellant’s breach. Therefore, on a balance of probabilities, I am not satisfied that the Operator has sufficiently shown that the items referred to are substantially linked to the loss incurred by the Appellant’s breach.
Accordingly, this appeal must be allowed.
Farah Ahmad
Assessor

Coupon-mad · 21 September 2014 at 1:29PM

Care Parking didn't care enough to bother to show up for the POPLA party:

http://forums.moneysavingexpert.com/showthread.php?t=4985782&page=2

so lozzabeth won, as we always do.

Coupon-mad · 21 September 2014 at 7:22PM

Also Parking Ticketing Ltd couldn't be bothered to show any GPEOL or even to include all the usual paperwork POPLA expect:

http://forums.moneysavingexpert.com/showthread.php?t=5036237

...so bpascua won, despite using a slightly wrong template appeal!

Reasons for the Assessor’s Determination
It is the Operator’s case that their Terms and Conditions of parking are clearly displayed throughout the above named site. They submit that these state that drivers were required to display a valid blue badge to park in a disabled bay. They submit that the Appellant breached the Terms of parking by failing to display a valid blue badge and therefore is liable to pay the parking charge.
The Appellant raises several grounds of appeal but it is only necessary for the purposes of this appeal to deal with one. This is the submission that the parking charge does not reflect a genuine pre-estimate of loss.
Where such a submission is made, there is a burden on the Operator, and not the driver, to provide a genuine pre-estimate of loss which details how they calculated the parking charge amount. It does not need to be particularly detailed or amount to exactly the charge amount because it is simply an estimate. However, one must be provided.
The Operator has not provided any evidence which establishes the charge reflects a genuine pre-estimate of loss. They have stated that they sent a GPEOL letter to the Appellant but this was not provided to me. Also, I have not received a copy of the rejection of the Appellant’s original representations. The Operator has not provided sufficient evidence to discharge its burden and therefore I cannot find that the charge is justified in this case. Therefore, I find that the charge is unenforceable and the Appellant is not liable to pay it.
Accordingly, I allow the appeal.

cjy4726 · 21 September 2014 at 7:23PM

I won at POPLA over ParkingEye

The circs were a 15 min overstay in a 2 hour free retail park car park.

I used the template on here to produce my appeal. Parking Eye produced no evidence at all and my appeal was allowed. I have now had the email from Parking Eye cancelling the charge. Nice!

Thanks to all who offer help on here. Very much appreciated!!

Redmikee · 22 September 2014 at 11:56AM

Hi all,
I got an email today saying I had won my appeal against the ticket I received at Peel Centre, Stockport due to GPEOL.
Thanks to all who offer advice on here.:T
My advice for anyone wondering if its worth appealing or just paying up to 'get it over with' is DON'T PAY! there is some great advice on this forum and it may seem daunting at first but you will win in the end.
The decision for anyone interested is pasted below:-

Reasons for the Assessor’s Determination
At 13:44 on 22 May 2014, a vehicle with registration mark XXXXXXX was
recorded by an ANPR system entering the car park at Peel Centre
(Stockport). The car was recorded leaving at 14:25, without having displayed
a valid ticket/permit. A parking charge notice was therefore issued.
The appellant made many representations; however, I shall only deal with the
ground upon which the appeal is being allowed. Specifically, the appellant
submitted that the charge did not represent a genuine pre-estimate of loss.
The implication of this submission is that the parking charge is in fact punitive.
The operator rejected the representations made by the appellant. With
regard to the issue of genuine pre-estimate of loss, the operator argued that
the parking charge was liquidated damages. However, the operator stated
that the onus was on the appellant to produce evidence as to why it did not
reflect a genuine pre-estimate of loss. Further, the operator stated that if the
evidence provided by them was insufficient they should be contacted before
the appeal was decided. No break down of how they quantified the preestimate of loss was provided.
In order to show that the parking charge is not punitive, the parking charge
should be shown to reflect a pre-estimate of the loss suffered by the operator
as a result of that breach. The onus is on the operator to show this, in
particular by providing a cost break down of the genuine pre-estimate of loss.
Contrary to the operator’s assertion, it is unnecessary for the appellant to
explain why they believe the charge is not a genuine pre-estimate. All the
appellant needs to do is raise the issue. It is then for the operator to prove that
the charge reflects the loss. The operator must demonstrate this with an
itemised cost break down of the loss. Moreover, it is for the operator to
provide all relevant evidence to POPLA for this appeal to be decided, rather
than for POPLA to contact the operator if their evidence is insufficient.
Consequently, I must decide this appeal on the evidence provided to me. As
stated, the onus is on the operator to provide a break down of the genuine
pre-estimate of loss. As they have failed to do so, on this occasion the appeal
must be decided in favour of the appellant.
Accordingly, the appeal is allowed.
Nadesh Karunairetnam
Assessor

MIke

jamex · 22 September 2014 at 2:26PM

Another successful appeal!

Thanks for all your help.

The operator issued parking charge notice number XXXXXXXXX arising out of
the presence at Eastbank, Ancoats, on 26 April 2014, of a vehicle with
registration mark XXXXXX. The operator recorded that the vehicle was parked
after the expiry of time in a pay and display car park.

The appellant has made a number of submissions; I have not dealt with them
all as I am allowing this appeal on the following ground.

It is the appellant’s case that the amount of the parking charge does not
represent a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine
pre-estimate of loss. Although a detailed breakdown may not necessarily be
required to prove this, as the appellant has questioned the level of the
charge in this case, it is necessary for the operator to provide an explanation
as to how this sum was arrived at as an estimate of the damage which could
be caused by the appellant’s alleged breach. However, the operator has not
provided a breakdown of costs under each head of claim. I am unable to
see how the parking charge amount has been calculated. In addition, the
operator has included “Central Payments Office (CPO) – Indirect
Overheads”. I do not accept that these costs have been incurred as a direct
result of the appellant’s breach. As the operator has not produced a
breakdown of costs, I am unable to determine the proportion of these costs in
relation to other heads of claim listed by the operator. On this occasion, I am
not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find that the operator has
failed to prove that the parking charge amount represents a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

Amber Ahmed

Assessor

POPLA Decisions

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