POPLA Decisions

Just had success thanks to this wonderful forum!

Original thread: http://forums.moneysavingexpert.com/showpost.php?p=65262741&postcount=1

Result:





Text version:

Reasons for the Assessors Determination


The Operator issued a parking charge notice (¶PCN) for parkin-g in a permit
only area without displaying a valid permit. The Operator submits that a £100
parking charge is now due in accordance with the advertised conditions of
parking which required display of a valid permit. The Operator produced a
document to show the basis on which the parking charge was estimated.

The Appellant disputes that the PCN was properly issued. Amongst other
grounds, it is the Appellants case that the parking chareprgeres ent does not
a genuine pre-estimate of the economic loss caused to the landowner by the
alleged breach. The Appellant submits that no loss was caused whatsoever.

The Operator accepts that the amount of the parking charge is a genuine
pre-estimate of the damages due for breach of the parking contract. The
estimate must be based upon loss flowing from a breach of the parking terms.
This might be, for example, loss of parking revenue at a Pay & Display site.

Where there is an initial loss caused by the presence of an appellants vehicle
in breach of the conditions (e.g. loss of revenue from failure to purchase a
Pay & Display ticket) this loss will be recoverable. Consequential losses
incurred in pursuing that initial loss, such as issuing the PCN and staff costs
involved in responding to subsequent representations, may also be
recovered.

The Operator detailed its likely losses following issue of a PCN. However, there
is nothing before me to show there was any initial loss. It appears that parking
in this free car park without a permit on display did not cost
anything. Accordingly, costs incurred by issuing the PCN are not
consequential to an initial loss and fall outside of any estimate of loss.

Consequently, I do not have the evidence before me to refute the
Appellants submission that the parking charge is unenfor ceable.

I allow the appeal on this ground alone.

Received email from POLPA and Appeal Allowed

The reason was GPEOL even though VCS used their newest version of their loss statement.

Thanks to all that assisted me, especially coupon-mad and kirbyinfurnesslad, in putting together the POPLA appeal and subsequently the further challenge to the evidence pack submitted by VCS.

I will of course publish the full result document on the POPLA wins thread.

once again thank you all.

Paddy

"(Appellant)
-v-
Vehicle Control Services Limited (Operator)

POPLA Code 9061194515

The Operator issued parking charge notice number xxx arising out of the presence at xxxxx Retail Park, on xx March 2014, of a vehicle with registration mark xxxx.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out

The Operator should now cancel the parking charge notice forthwith."

Reasons for the Assessor’s Determination

It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘Parked for longer than the maximum period permitted’. The Operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.

It is the Appellant’s case that:

a) The parking charge does not represent a genuine pre-estimate of the loss which could have been caused by the alleged breach.

b) The Operator does not have sufficient authority to issue a parking charge notice in relation to the land in question.

c) The parking charge notice issued to the Appellant does not meet the relevant required criteria of the Protection of Freedoms Act 2012.

d) The Operator has not demonstrated that its Automatic Number Plate Recognition technology was correctly calibrated.

e) There was insufficient signage on site to bring the terms of parking to the attention of motorists.

The Operator submits that the charge does in fact represent a genuine pre-estimate of loss. Alternatively, the Operator submits that if the charge is not found to be a genuine pre-estimate of loss, it is nevertheless enforceable as it is commercially justified. The Operator has submitted a number of cases in support of its submissions.

Firstly, I do not accept the Operator’s submission that the charge represents a genuine pre-estimate of loss. A detailed breakdown of each head of loss will not always be required, but the Operator must provide some explanation as to how it arrives at its final sum. The Operator has not explained in any detail how the sum of £166.01 is arrived at before it is reduced to £100. The explanation provided by the Operator also appears to include general operational costs and costs which could not possibly be incurred as a direct result of the alleged breach. Accordingly, I am not satisfied that the Operator has shown the charge of £100 is arrived at by a genuine attempt to pre-estimate its loss.

Further, 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 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”.

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.

In this case, it is clear that the dominant purpose of the charge is to deter vehicles from staying beyond the 90 minute limit. Accordingly, I am not satisfied that the charge can be commercially justified.

Given that the charge is not commercially justified, nor has it been shown to be a genuine pre-estimate of loss, I accept on this occasion the Appellant’s submission that it is not enforceable.

Accordingly, I must allow the appeal.

I need not decide any other issues.

Christopher Adamson

Assessor

Coupon-mad wrote: »

That's a great decision to quote in POPLA appeals v firms who pretend they think their charges can be 'commercially justified'! Paddyathome if you don't mind, now you've won and it's over, would you let us have your POPLA code so we can actually quote it as a factual decision that POPLA can look at when we mention it in future, months down the line? If you are happy to do so (and you are safe now!) please add it to the post above. THANKS!

Hi I have added POPLA Code 9061194515 as requested.

We'll done on above success. Any chance you might give us a clue as to who the 'operator' was, please?