JAS PCN - POPLA Appeal

Hello all,

I would like to start by saying a huge thanks to those who have contributed so usefully to these threads and set out the appeals procedure so clearly.

I received a PCN from JAS Parking Solutions earlier this year for leaving the premises (Staples) and also being parked outside of a marked bay (oops).

I've read a number of posts on here regarding the contents of the POPLA appeal, and have modified a template which has been successful in the past (many thanks to the users who have posted the templates in question).

I was wondering whether I have put myself in a weaker position by parking a matter of millimetres outside of a marked bay in a near empty car park, and how I should address this in my appeal?

I've also noticed that a lot of recent successful appeals have been based on 'absence of authorisation from the landowner to issue parking charge notices'. I was wondering if anybody has a neat way to incorporate this into my appeal - I couldn't find the original letters which led to successful appeals based on this.

I have highlighted the sections that I have edited from the (possibly well known?) template letter.

Thanks in advance for help.



Re: JAS Parking Solutions PCN, reference code xxxxxxx
xx/02/2015
POPLA Code: xxxxxxxxxx
VRN: xxxx xxx

Dear Sir/Madam,

I am the registered keeper of vehicle reg xxxx xxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

1. The charge is not a genuine pre-estimate of loss
2. Lack of legitimate contract with driver
3. JAS has no standing to claim on behalf of the landowner
4. JAS made no attempt to mitigate its loss
5. The terms of the (disputed) contract and unfair and unreasonable.

I detail each of those points below, but must first note that the rejection letter gives next to no detail which could lead to better understanding as to how JAS arrive at their claim. As a result, JAS seem to be attempting to “game” the independent appeals process by a display of bad faith.

Appeal Details

1. The charge is not a genuine pre-estimate of loss

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction to other vehicles entering the car park and therefore no loss arose from this incident. While JAS Parking Solutions claim that the vehicle was ‘parked outside of a marked bay’, I challenge them to provide evidence that any loss was incurred as a result of this, as from subsequent visits to the car park in question I have noticed that the majority of spaces are untaken.

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.

JAS, when rejecting my appeal, has refused to provide any breakdown of cost issuing from the alleged breach. Thus, by failing to substantively provide a breakdown of costs despite the assertion in my initial appeal that the fee was unjust, JAS is improperly limiting my ability to examine the legitimacy of these claimed losses, and thus this appeal should be allowed on that basis alone.

In the past, JAS have submitted general business costs to POPLA and presented them as attendant losses. These are not losses at all. Staff whose wages are paid in any case do not count as losses stemming from breach. To establish those as losses, JAS would need to show that the staff were “significantly diverted from their usual activities” or that there was “significant disruption to their business”. Since the staff in this case are engaged in their usual activities, it follows that such costs can not constitute loss. IT systems (unless they are reinstalled after every breach - which would be ridiculous) do not count as losses. Professional advice sought from the BPA or external legal sources, unless that advice was specific to a particular case, do not count as part of a genuine pre-estimate of loss. I specifically call the Assessor to note that merely adding the boilerplate text “in this case” to a general business cost does not magically transform it into a loss derived from any alleged breach.

I furthermore stress that the costs of the POPLA appeal cannot be included in any pre-estimation of loss (if such a claim is made - again, absent of any responsive text from JAS, I am at significant disadvantage in knowing how its statement of loss is constituted). Patrick Troy of the BPA states specifically:
“What you cannot do though is add the per appeal fee to your Parking Charge Notice amount calculations - only 1.1% of tickets issued go to POPLA and as such could not form part of a Genuine Pre-estimate of Loss".

Similarly, inflating costs by adding in layers of management wages to check the validity of normal ticket processing staff are artificial, and should be rejected out of hand as pre-estimations of loss. The idea that any company would hire staff who were so incompetent as to require (for instance) two or three additional levels of supervisory checks to perform their basic duties is simply implausible.

The signs displayed at the car park also cast doubt upon the veracity of any losses. An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions? This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.

The charge that was imposed is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £94 can be reduced to £56.40 by early payment the charge is unreasonable to begin with.

2. Lack of legitimate contract with driver

The JAS appeal refusal states that the claim in question is based in contract law (allegedly violating the terms of the contract by “[the driver having] left the premises and went out which is not authorised” and “you contractually agreed to abide by the terms and conditions”).

As the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. From the road via which you enter the car park, there are no signs visible until you are inside the Staples car park, while there are also no signs visible from where the driver of the vehicle informs me they were parked (see attached photos). Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. 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 JAS and not expecting to read a contract when they park. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.

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 sign makes reference to transfer and acceptance of tickets: No tickets are issued at all in this car park, leading to more confusion on a driver’s part. Since some of these undated conditions are void in this car park, how is a driver to know which conditions are to be adhered to, and which to be ignored?

The sign also says that JAS Parking will request DVLA keeper information, but in this case, an application was made by its debt recovery arm, Parking Debt Collectors, trading as Dara Debt Recovery, resulting in considerable confusion as to the proper appeal path. Again, I contend that by engaging in such confusing displays, JAS forfeits its right to any contract with any motorist.

3. Lack of standing/authority from landowner

J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question. Therefore JAS have 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 JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS 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 licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that JAS are entitled to pursue these charges in their own right.

I require JAS 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. 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.
Statements like “we would assume that [an Operator] would issue legal proceedings” absolutely do not constitute transfer of authority.

4. No proof of claim or attempt to mitigate loss

JAS state that the driver was “seen leaving the car park” - omitting to say who saw this and when. JAS has failed to provide any evidence to prove that the driver left the car park and therefore the charge should be void if they are unable to do so. In a more general sense, I assume that JAS are referring to a parking attendant in their employ seeing the driver leave the car park. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.

I state the above suggestions for mitigation while noting that JAS have provided no evidence whatsoever in their rejection letter that the vehicle was left in the car park while the driver went elsewhere. They have also not stated how long this alleged absence was (10 seconds? 1 hour? 5 days?). In general, this goes to the general non-responsiveness of the rejection letter. If the Operator wishes to pursue a claim for monies, recourse to unsupported and vague accusations scarcely create the impression of someone seeking redress in good faith.

5. 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.
A small print sign which cannot be read until you leave your vehicle 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.

I contend it is wholly unreasonable to rely on signs with such small print and unclear conditions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

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

Yours Faithfully,
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