POPLA Decisions

Dee140157 · 10 September 2014 at 9:04PM

Can you put the decision in more detail on here, even if it is the fact that they didn't produce and evidence . I guess this was the APCOA one?

cofe · 11 September 2014 at 10:05PM

Won the POPLA appeal. Thank you so much for all your help.

I have pasted some of the details from the letter from POPLA.

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.

It is the Operator’s case that the Appellant parked their vehicle with an expired ticket on display and this was a breach of the terms and conditions of parking as set out on signage at the site.
The Appellant has made a number of submissions which I do not intend to deal with and will only elaborate on the reason why I am allowing this appeal, namely that the Operator does not have the authority from the landowner to issue parking charge notices.
The Appellant has asked to see proof that the Operator has the authority to issue parking charges. The Operator has failed to provide a copy of the contract between themselves and the landowner to show that they have the authority to issue parking charge notices and therefore I have no evidence before me to refute the Appellant’s submission. The onus is on the Operator to prove their case against the Appellant and on this occasion they have not done so.

Accordingly, this appeal must be allowed.

bondyy · 12 September 2014 at 11:35AM

Thanks very much to everyone who helped me personally with my appeal or contributed to very useful stickies. I have won my appeal, details are below.

***** (Appellant)
-v-
P4 Parking also t/as Nighthawk Parking (Operator)

The Operator issued parking charge notice number ******** arising out of the presence at Royal Arsenal Roadways, on ******, of a vehicle with registration mark ******.

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

On ******** the operator’s employee issued a parking charge notice to a vehicle with registration mark ********. The operator’s employee recorded that the vehicle was parked with an expired permit on display.

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.

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.

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 did represent a genuine pre-estimate of loss. However, no break down of how they quantified the pre-estimate of loss was provided.

Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

Nadesh Karunairetnam
Assessor

Skinarelli · 12 September 2014 at 11:57PM

I won my appeal with POPLA.

My car overstayed it's welcome in a free for 2 hours car park run by Parking Eye in Leyland, Lancs. I used a template letter from one of your regular helpers to fight my ticket on the following basis:

A) Not a genuine pre-estimate of loss.

Not the landowner - therefore no contract made
C) Poorly worded / prominent signage.

They were prompted to supply various pieces of evidence including a breakdown of their alleged loss, contract with the landowner etc etc.

Parking Eye didn't bother to submit ANY evidence whatsoever and their speculative invoice was dismissed by POPLA.

Thank you MSE!! :T

athensgeorgia · 14 September 2014 at 4:33PM

Excel Parking Services Limited (Operator)

The Operator issued parking charge notice number ******* arising out of the presence at Peel Centre in Stockport, on 24 June 2014, of a vehicle with registration mark *******.

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 without displaying a valid ticket/ permit’. 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 Operator has not demonstrated that its Automatic Number Plate Recognition technology was correctly calibrated.

The Operator submits that the charge does in fact represent a genuine preestimate 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. Without any explanation as to how the sum is arrived at it is not clear whether these unrelated costs are significant or not. 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. There have been contradictory decisions from the County Court presented to POPLA, but 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 breaches of the terms of parking. 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

MaxBob · 16 September 2014 at 9:25PM

I won my appeal. The letter from POPLA is copied below to highlight the result of the appeal.

Many thanks to everyone for their help with this! :beer:

Reasons for the Assessor’s Determination

It is not in dispute that the appellant’s vehicle was stopped in a no stopping

zone in John Lennon Airport, that this was detected by the operator’s ANPR

system, and that a charge notice was issued.

The appellant made representations, stating that: the charge was not a

genuine pre-estimate of loss, the camera system was an ANPR system which

did not comply with requirements, there was no contract with the driver, the

signage was misleading and unclear, the alleged breach is not one which

keeper liability applies to, and the land is not land in respect of which keeper

liability for parking charges is possible.

The operator rejected the representations. In regard to the genuine pre-
estimate of loss issue, the operator stated that the charge represented a

genuine pre-estimate of loss, and provided supporting statements.

Considering the evidence before me, I find that the operator has not

provided evidence of an initial loss, which is a loss incurred prior to

enforcement action being taken, such as the loss of the parking fee in the

case of a pay and display car park where no ticket was purchased. Once

such a loss is shown, losses flowing from it may be claimed, but without such a

loss that is not the case. Whilst the losses stated by the operator may well flow

from a breach, an initial loss must be shown in order to claim costs in respect

of them. As an initial loss must be shown in order for a charge to constitute a

genuine pre-estimate of loss, the operator has failed to show that the charge

is a genuine pre-estimate of loss. Therefore the charge notice is invalid.

Having found this, I am not required to consider any further issues raised by

the appellant.

Accordingly, this appeal must be allowed.

lazydaizy · 17 September 2014 at 10:40AM

VCS appeal was upheld this morning.

As the registered keeper, I would like to appeal this notice on the following grounds:

York City Centre, Stonebow House

1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Notice to Appellant
4. Unlawful Penalty Charge
5. Signage not compliant with the BPA Code of Practice/No valid contract formed between VCS and the driver.
6. No standing to bring a claim.
7. Unfair Terms
8. Summary

This is my link to my appeal and rebuttal

http://forums.moneysavingexpert.com/showthread.php?p=66525038&highlight=#post66525038

This is the POPLA reply

Here's what they said:-
The Operators's case is that the site's terms of parking state that the area in question is a restricted zone and no parking/waiting on paved areas is permitted at any time. The Operator says that the Appellant's vehicle was observed to be parked on double yellow line on the paved area adjacent to a warning sign.They have provided photographic images to demonstrate this point and a genuine pre-estimate report to support their case.

The Appellant has made a number of submissions, however, I will only
elaborate on the one submission that I am allowing this appeal on, namely that the parking charge notice is not a genuine pre-estimate of loss.

The Operator rejected the Appellant's representations because they state that by parking in a restricted area of the car park, the Appellant has breached the terms and conditions of the parking contract.They advise that the onus is on the motorist to provide supportive proof as to why the charge is not appropriate.They state that they have calculated this sum a genuine pre- estimate of loss as they incur significant costs in ensuring compliance to the stated terms and conditions and to follow up any breaches of these identified and these costs must be interpreted as a predicted charge or estimate prior to the breach. They submit that some of these costs include parking charge creation and issue, POPLA case management, costs of maintenance and the full costs incurred can be estimated in advance of any case to be a total of £166.69.

The Operator also cited case law judgments to support their case. They state that their liquidated damages clause is based on a genuine pre-estimate of loss which include losses that could conceivably follow a breach, not necessarily losses which are 'actual' or even likely to follow a breach. I find that the Operator has not adequately shown how they have come to these costs and they have not included figures representing such cots.

The parking charge must be an estimate of reasonable losses in order to be enforceable. Accordingly, any consequential loss must be based on an initial loss, and any heads claimed for must be in the reasonable contemplation of the parties at the time of issue of the parking charge notice.

Although the Operator has sought to justify the amount of the parking charge notice as being a genuine pre-estimate of loss, I am not satisfied that theperator has sufficiently shown an initial loss or has proved that this parking charge notice is a genuine pre-estimate of loss.

Accordingly, I allow this appeal

Aurela Qerimi
Assessor

Skunkontoast · 17 September 2014 at 2:04PM

Well finally got my appeal result. Turns out I won!

I had overstayed the 3 hours free parking at the local swimming pool and was invoiced for the usual 100 quid by the lovely people at Civil Enforcement Ltd.

Here is my POPLA advisors decision.

The operator issued parking charge notice number ********** arising out of the presence at Willow Way Maidstone, on 29 June 2014, of a vehicle with registration mark AWESOME. The operator recorded that the vehicle exceeded the maximum stay.

The appellant has made various representations; I have not dealt with all of them 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 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.

Considering carefully, all the evidence before me, after objectively assessing the signage displayed at the site, I find that the signage does not mean that motorists may overstay the stipulated time limit of 3hours provided that they pay £100, which would make the amount of the charge consideration. However, I do find that the signage means that overstaying the stipulated time limit of 3 hours is not permitted and that a parking charge of £100 will be issued to vehicles. Therefore, I find that the amount of the charge does not represent damages for a breach of contact.

Accordingly, this appeal must be allowed.

Amber Ahmed
Assessor

Thanks again for everyone's help, now I'm off to write some complaint letters to the DVLA and BPA.
Cheers.

JAMEZ1080 · 19 September 2014 at 10:24AM

Hi all,
I received my email from POPLA today and my appeal has been accepted! The letter is copied below, thanks to MSE for all your help!

The Operator issued parking charge notice number 091248/670002 arising out of a presence on private land, of a vehicle with registration mark AF56ZVS.

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 Appellant’s case that the parking charge notice was issued

incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any

evidence to show a breach of the conditions of parking occurred, nor any

evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

Shehla Pirwany

Assessor

GB79 · 19 September 2014 at 10:46AM

Thanks to everyone for their help with my APCOA and POPLA appeals, especially Redx and Bazster.

02-Dropping/Picking up outside of a designated parking area on 5th-July-2014 at Birmingham Airport.

"Reasons for the Assessor’s Determination

On 18 July 2014, the appellant was issued a parking charge notice for being
in breach of the parking terms and conditions.

It is the operator’s case that the appellant parked their vehicle outside of a
designated parking area despite signage erected at the site to prohibit this.
There is photographic evidence to support that there was adequate signage
at the site to inform motorists of the parking terms and conditions. There is also
photographic evidence which shows the appellant’s vehicle parked outside
of a designated parking area.

The appellant has made a number of submissions, however, I will only
elaborate on the one submission that I am allowing this appeal on, namely
that the parking charge amount is not 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 the operator has produced a breakdown of
costs incurred, I find that duplicate costs have been included, for example,
“appeal writing” costs have been listed twice. On this occasion, I am not
satisfied that these substantially amount to a genuine pre-estimate of loss and
I am not satisfied that the operator has discharged the burden.
Accordingly, this appeal must be allowed.

Farah Ahmad
Assessor"

POPLA Decisions

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