Ethical Parking Ticket

davidso · 29 August 2014 at 12:17PM

I have (also) received a ticket from Ethical Parking while parked outside our holiday let.

Today is the 14 day deadline for the fine reduction period.

I (stupidly) filled in their online appeals form before reading this forum. I accidentally ticked 'keeper' and 'driver' and wrote about what I thought were mitigating circumstances and supplied a couple of photos which I now realise was a complete waste of time.

What should I do? Fill out their online appeal form again but with your template?

Or should I wait for their "appeal denied" letter and start from there?

Have I ruined my chances and should I pay up today so the fine doesn't go up by 100%?

bazster · 29 August 2014 at 12:41PM

God no, don't pay up! It's preferable not to reveal the driver but it's hardly fatal. Just wait for the "appeal denied" letter and take it from there.

Dee140157 · 29 August 2014 at 5:20PM

Start reading the newbie thread in preparation of the POPLA appeal you will need to put on. Put draft here when you have your POPLA code so that we can check your appeal.

Coupon-mad · 30 August 2014 at 12:30AM

Today is the 14 day deadline for the fine reduction period.

Who cares about the amount or a made up 'deadline' - you will pay nothing at all and it is NOT a fine!

bazster wrote: »

God no, don't pay up! It's preferable not to reveal the driver but it's hardly fatal. Just wait for the "appeal denied" letter and take it from there.

Seconded.

And while waiting why not read the other two current Ethical threads on here. Search for the keyword Ethical (not a word often used on a Parking forum of course!).

davidso · 16 September 2014 at 10:59AM

Ethical Parking have emailed me a letter rejecting my appeal and have supplied a POPLA code. I've used the code checker and it's still valid. I've looked through the Newbie thread and this post...

http://forums.moneysavingexpert.com/showthread.php?p=62180281&posted=1

...but I can't see a template specific to Ethical Parking.

Should I just copy and paste this poster's letter? Or can somebody point me in the direction of a template?

ampersand · 16 September 2014 at 11:11AM

Look for rsweb and spoooky[n.b. 3 'o's in spoooky]Threads.

davidso · 16 September 2014 at 11:53AM

Thanks ampersand. The poster's letter I linked to is spoooky's final draft of his POPLA letter. I've looked at the rsweb thread but after one draft - which gets criticised - he doesn't post again.

Below is spoooky's POPLA appeal, should I - considering what I initially posted up thread - send to POPLA swapping dates etc specific to my case along with my code?

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 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 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 vacating at (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.

ampersand · 16 September 2014 at 12:14PM

Yes, I saw that rsw hadn't returned, but reading all that's available gives you Don'ts as well as Do's.
#
I didn't ccp it all here as it needs much tweaking and tidying and grammar grooming. Use 3rd person, avoiding I/me/my.

Some sentences are ill-phrased or nonsense: alterations must make sense.
e.g. 'I have also been in contact with the landowner of the property we were vacating at (who’s details I can provide) my disdain'

Lose this and supply pics, if poss. Re-write:
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.

Just take each para. and turn it to yourself, as RK.

Be v. careful in checking what you do use when you ccp as there are misplaced spaces, mispunctuation, mis-spelling e.g.
- 'who's' for 'whose',
- ' 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. This decision is cited for the Court of Appeal as 'full of caveats and full of holes and a distinct lack of case law.'
#
That's a start. Once you begin, you'll find it easier.

Coupon-mad · 17 September 2014 at 12:13AM

''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.''

Needs to read 'the Notice to Keeper'.

You will win. A keeper can't be held liable in law without a NTK being served in time, with compliant wording. You never were sent one and the fact you appealed doesn't save them from this omission because there's nothing in the POFA 2012 Schedule 4 which allows a NTK to be omitted.

davidso · 17 September 2014 at 10:19PM

OK, well here we go...

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 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
(These words I have conjured up myself, no idea if they are relevant but I'm replacing what spoooky wrote with my own version)
The sign was placed on a post on at junction making it unsafe to stop and read. It was one of many signs in the immediate vicinity and did not have prominence nor was it presented in such a way as to appear relevant to parking restrictions.

(Is this section 3? Spoooky seems to have a number missing and the heading title.)
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 15/08/2014 and as the registered keeper of the vehicle the Notice to Keeper was non-compliant due to the fact this was never served. (Has it not been served? The only things I have received from EP are a ticket on my windscreen and a reply to my 'soft appeal'.) A letter was sent to both Ethical Parking [STRIKE]and the landowner [/STRIKE] (I haven't sent anything to a 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 for the property. Ethical Parking replied to advise they had received the letter and then another letter dated the 15th September 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's 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 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.

4) Unreasonable/Unfair Terms
(I don't know what I can put in place of this bit. Sounds specific to Spoooky)
[STRIKE]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.[/STRIKE]

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 Lordsvale 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 'Parking Eye 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.

(so get rid of this bit, right?)
[STRIKE]I have also been in contact with the landowner of the property we were vacating at (who’s details I can provide) my disdain who also contacted Ethical Parking regarding the cancellation of the contractual breach charge, so[/STRIKE]

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

Coupon-mad · 17 September 2014 at 11:46PM

That's looking good and yep I agree with your suggestions about sentences to cross out. This bit isn't section 3, it's part of section 2 about dodgy signs:

(Is this section 3? Spoooky seems to have a number missing and the heading title.)
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.

I think Spoooky just missed a number out!

And no, you have NEVER had a NTK if you've appealed fairly early as keeper and got a rejection letter. Many PPCs muck this up. No NTK = no keeper liability.

Ethical Parking Ticket

Comments

Categories

Get our FREE Weekly email full of deals & guides - and it’s spam-free