POPLA Decisions

Barry_Chuckle · 19 August 2014 at 6:02PM

Hi All,
Firstly, thanks for all the work you do on these forums. I used your advice and guidance heavily in forming my appeal and quite possibly wouldn't have had the courage to do so, had it not been for your hard work. Anyway, by way of making my own (small) contribution to the cause, below is the determination provided in my case (which allowed my appeal):

15/08/14

Reason for Determination:

"The Appellant does not admit to being the driver on the date of the contravention and therefore in order to recover charges from the registered keeper of the vehicle, the Operator is required to comply with the conditions set out in the [Protection of Freedoms Act 2012].

...

The second condition is that the creditor has given a Notice to Driver in accordance with paragraph 7 of the schedule, followed by a Notice to Keeper in accordance with paragraph 8; or alternatively has given a Notice to Keeper in accordance with paragraph 9.

In this case, a parking charge notice was issued to the vehicle and the Operator has not provided any evidence to show that a Notice to Keeper was sent to the Appellant. It is for the Operator to provide evidence of the documents relied upon and as the Appellant does not appear to have received a Notice to Keeper, I am not satisfied that the second condition has been satisfied.

The Appellant does not admit to being the driver of the vehicle on the date of the contravention and I am therefore unable to find the Appellant liable as either the driver or the registered keeper of the vehicle. As a result, I need not decide on any other issues raised by the Appellant.

Accordingly, this appeal must be allowed."

A bit of background information that may be useful in relation to the above: the PCN that was issued was by Premier Parking Solutions (PPS). As i think has been noted elsewhere in the Forums, PPS do not issue a formal Notice to Keeper. In my case, they just sent a copy of the PCN in the post, with a letter asking me to pay up. As such, it seems that a definite point of challenge when dealing with PPS should be the fact that they haven't issued a formal Notice to Keeper. Without that, it seems that they haven't adhered to the necessary regulations and POPLA will overrule their claim on that basis.

Anyway, I hope the above is of some use to others and thanks once again to all involved in running/contributing to these Forums.

Coupon-mad · 19 August 2014 at 6:07PM

willberine wrote: »

I have just had an appeal allowed on failing to show the keeper liable.

This was slightly different however as the copy of the one produced to POPLA was not the actual one they sent me, it was just the template for it.

POPLA claimed they are unable to rely upon that as evidence.

I have the copy of the POPLA decision that you sent me earlier. I can show part of it in your thread, if you are OK with that, willberine? Obviously I won't show your car registration or name! It will be very, very useful for others to quote if PPS routinely cannot show the actual NTK or PCN, newbies can use that to their advantage at POPLA and cite your win. I see you've posted part of it here as Barry Chuckle already.

Dee140157 wrote: »

That sounds odd.

However another win on POFA 12.

It was important to win this one - it was PPS at Hull Docks (where Nozir Uddin had believed their re-written GPEOL statement a couple of times so we couldn't let it lie!). Willberine's was won with a very 'stroppy' POPLA appeal I helped this poster write. Decision took ages but Chris Adamson the Senior Assessor took it on! Interesting that he side-stepped the argument about the 'new' GPEOL calculation.

Here's another version I wrote for PPS at Didcot station (so not quite the same as Willberine's but still an example of the arguments):

http://forums.moneysavingexpert.com/showthread.php?p=66077908&highlight=didcot#post66077908 (NOT WILLBERINE'S BUT FAIRLY SIMILAR)

Barry_Chuckle wrote: »

Hi All,
A bit of background information that may be useful in relation to the above: the PCN that was issued was by Premier Parking Solutions (PPS). As i think has been noted elsewhere in the Forums, PPS do not issue a formal Notice to Keeper. In my case, they just sent a copy of the PCN in the post, with a letter asking me to pay up.

As such, it seems that a definite point of challenge when dealing with PPS should be the fact that they haven't issued a formal Notice to Keeper. Without that, it seems that they haven't adhered to the necessary regulations and POPLA will overrule their claim on that basis.

Anyway, I hope the above is of some use to others and thanks once again to all involved in running/contributing to these Forums.

Agreed, a landmark one to learn from, to help other people to win PPS cases.

:T

beetlemad · 19 August 2014 at 9:24PM

Name of assessor Ricky Powell

DETAILS OF DECISION AS FOLLOWS
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 drivers from breaching the terms of parking by not paying for and displaying a ticket. Accordingly, I am not satisfied that the charge can be commercially justified.

Given that the charge is not commercially

Umkomaas · 19 August 2014 at 10:36PM

Ricky Powell - a new kid on the block? I've not noticed his name previously. If so, he's learning quickly.

Well done OP!

Dee140157 · 19 August 2014 at 10:41PM

Maybe they've had to appoint new staff to cope with all the appeals we keep sending them.

Umkomaas · 19 August 2014 at 10:59PM

Dee140157 wrote: »

Maybe they've had to appoint new staff to cope with all the appeals we keep sending them.

I'm sure that's right Dee. While POPLA only deal with a slight 'scratch' of all PCNs, more motorists are wishing up and appealing.

I'm sure that if every affected motorist appealed, POPLA would be among the largest employers in the UK! :cool:

Marine_girl · 20 August 2014 at 7:38PM

Thanks to your advice, I won my appeal. I'm really grateful - keep up the good work!

DETAILS OF DECISION AS FOLLOWS
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 drivers from breaching the terms of parking by not paying for and displaying a ticket. Accordingly, I am not satisfied that the charge can be commercially justified.

SouthYorkshireKid · 21 August 2014 at 3:43PM

The Operator issued parking charge notice number .....
arising out of a presence on private land, 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.6061694080

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

OBAone · 22 August 2014 at 11:20AM

Another win on GPEOL!!!!:beer:

The Operator issued parking charge notice number XXXXXXXX arising out of the presence at Birmingham International Airport,
on 3 June 2014, of a vehicle with registration mark XXXXXXXX.

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 their Terms and Conditions of parking are clearly displayed throughout the above named site. They submit that these clearly state that drivers may not stop to drop off or pick up outside of a valid car park or bay. They submit that the Appellant breached the Terms of parking by stopping in a red route and is therefore liable to pay the parking charge issued.

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. The estimate provided by the Operator seems to consist largely of consequential losses they would expect to incur as a result of a contravention of the Terms.

For such losses to be recoverable, the must Operator show an initial loss which needed to be pursued. This is simple where there was, for example, a failure to pay a tariff to park. However, in cases such as the present one an initial loss is not demonstrably clear and the Operator must set it out in their pre-estimate of loss. Without an initial loss, the costs incurred by the issue of the parking charge notice cannot be considered to have been caused by the driver’s contravention of the Terms of parking. This is because the Operator would have been in the same position had the parking charge not been issued.

I am not satisfied there has been an initial loss in this case. The Operator has provided no evidence which confirms that they suffered any loss as a direct result of the breach of the Terms: the losses listed would be suffered as a result of pursuing an initial loss. Therefore, I find that the parking charge is not enforceable in this case.

Accordingly, I allow the appeal.

Ricky Powell
Assessor

bartos1976 · 23 August 2014 at 4:31PM

Appeal Allowed vs Parking Eye

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

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

POPLA Decisions

Comments

Categories

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