POPLA Decisions

Tinker3385 wrote: »

The document
states that the operator may cease to have authority prior to when the parking charge was issued, and while it states that the operator did have authority at that time, the document is dated over a month before the parking event. Thus, the document does not prove on balance that the
operator had authority at the time of the parking event.

Yep C-m - the contract says that at the time of its writing, the operator is given authority. But it also has a clause that says that they could cease to have that authority at some future point. The PCN was issued at a future point, and there is nothing to confirm that - at the time of the PCN being issued - the operator still had authority, as it could have ceased at some point between the contract's writing and the time of the PCN.

I guess it's something like "the landowner can cancel with one month's notice", and the PCN was issued more than a month after the contract.

This could be a useful new appeal point. If RKs are appealing on the basis of 'lack of authority', then they should say something along the lines of "if the landowner contract shows a termination clause or notice period that could allow the contract to be terminated prior to the date of the alleged incident, I put the PPC to strict proof that the contract was in force on the relevant date".

OPC PCN in own parking space:

It is the Operator’s case that their Terms and Conditions of parking (“the Terms”) are clearly displayed throughout the above named site. They submit that the Appellant breached the Terms by failing to display a valid permit and therefore is liable to pay the parking charge.
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. However, one must be provided.
The Operator has not provided any evidence which establishes the charge reflects a genuine pre-estimate of loss. They have not discharged their burden and so I cannot find that the charge is justified in this case. Therefore, I find that the charge is unenforceable and the Appellant is not liable to pay it.
Accordingly, I allow the appeal.

Appeal won. Thanks to everyone for their help.

Almost unbelievably, some joker from MET issued a windscreen ticket on my car at High Wycombe station. I sent a challenge letter to MET, who rejected that, so this was my appeal to POPLA:


1. On the material date, the driver parked the vehicle at High Wycombe train station, and caught a train to London. The driver attempted to make payment using the Ringo system by mobile phone, but the system would not accept the location code. After making several attempts, the mobile signal was lost as the train entered tunnels. The Operator states, in their rejection letter, that motorists should use other methods of payment at the station, but that was not feasible in this instance as the driver was already on the train.

2. The location in question is not 'relevant land' as defined by the Protection of Freedoms Act 2012, as it is owned by Chiltern Railways and is subject to the Railway Byelaws. This means that the Operator cannot pursue the Registered Keeper under the Act, and can only pursue the driver. The Operator has not provided any evidence of the driver's identity, and there are no formal admissions from the registered keeper.

3. The Operator is not the owner of the land in question, and therefore does not provide any consideration which may form a contract with motorists. Any consideration, in the form of a parking space, is provided by the landowner, in this case Chiltern Railways, and any liquidated damages for breach of contract would be owed to the landowner, not to the Operator.

4. The Operator's charges do not constitute a genuine pre-estimate of loss. The sum of £100 is clearly an arbitrary figure designed to deter breach of contract, and is therefore a penalty charge, unenforceable in any civil action. Other operators have attempted, in previous submissions to POPLA, to justify their charges by citing items such as staff wages, uniforms, trade association memberships and so on, but all of these are normal business running expenses which do not arise as a direct consequence of this incident. Furthermore, costs incurred such as those involved in dealing with appeals, and subsequent submissions to POPLA, should not be considered as they are ex post facto costs which had not been incurred at the material time.

The assessor is therefore invited to allow this appeal.


Today I received the POPLA decision as follows:





Mr Bargepole (Appellant)


-v-


MET Parking Services Ltd (Operator)


The Operator issued parking charge notice number XXXXXXXXXX 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 [FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]allowed. [/FONT][/FONT]
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]
[/FONT][/FONT]
The Assessor’s reasons are as set out.


The Operator should now cancel the parking charge notice forthwith.


[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Reasons for the Assessor’s Determination


[/FONT][/FONT]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.


[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Shehla Pirwany

[/FONT][/FONT]Assessor

Thanks to everyone on this forum for all their help!! My late appeal to POPLA was accepted as below;


The Operator issued parking charge notice number xxxxxx arising
out of the presence at the Car Park at Iceland, xxx, of a vehicle with registration mark xxxxxx.
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 xxx the operator issued a parking charge notice to a vehicle with
registration mark xxx. The operator recorded that the vehicle was
parked without displaying a valid pay and display ticket or permit.
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 is not a genuine pre-estimate of loss. The
implication of this submission is that the parking charge is in fact punitive.
Appellants are not to be expected to use legal terminology. In this case, it
appears to be the appellant’s case that the parking charge is in fact a sum
for specified damages, in other words compensation agreed in advance and
so should be proportionate to the loss suffered. Accordingly, the charge must
be shown not to be punitive. This is illustrated by the operator providing a
genuine pre-estimate of loss, which reflects the parking charge.
In order to justify that the amount is a genuine pre-estimate of loss, the
operator submitted a breakdown of the losses they incurred as a result of the
appellant’s breach. Amongst other things, the operator has included costs
such as the debt recovery process and final reminder process costs which
cannot be taken into account as the operator has not incurred this loss as a
result of the appellant’s breach. I am not minded to accept the debt
recovery process as part of the justification as not all parking charge notices
will go to the debt recovery process stage. I also find that the operator
cannot claim the “2nd Stage Process” to be a separate heading of losses
incurred as a result of the appellant’s breach. This is because the procedure
for dealing with an appeal is not structured in a way so that the appellant
can re-appeal to the operator. Therefore I find that it is not reasonable for the
operator to pre-estimate this as a loss. I find that the list submitted by the
operator does not substantially reflect the loss suffered as a result of the
appellant’s breach. This is because it appears that a substantial portion of the
costs refer to the debt recovery process and the “2nd Stage Process”.
Considering carefully all the evidence before me, I find that the damages
sought on this particular occasion do not amount to a genuine pre-estimate
of loss.
Accordingly, the appeal is allowed.
Nadesh Karunairetnam
Assessor