Met parking ticket issued, appeal denied!

thanks again for taking the time to advise on this issue!

OK second draft:

[FONT=&quot]POPLA appeal re MET Parking ticket number ???[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Alleged infringement[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I am the Registered Keeper of the vehicle related to the parking charge notice number ????.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I have researched the matter, and would like to bring your attention to the following points as my appeal against said charge:[/FONT]
[FONT=&quot]A) Evidence of visit for food at the time of the PCN[/FONT]
[FONT=&quot]B) Genuine pre-estimate of loss[/FONT]
[FONT=&quot]C) Punitive charges and unfair terms[/FONT]
[FONT=&quot]D) No contractual authority to make contracts with drivers nor locus standi to pursue charges in the courts.[/FONT]
[FONT=&quot]E) No clear map of the site boundary - no contract with driver formed[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]A) Evidence of visit for food at the time of the PCN[/FONT]
[FONT=&quot]The purpose for visiting the site was in purchase food and drink. The proof of this is attached. As you can see the food is shown to have been purchased a few minutes after the PCN was issued.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]B) Genuine pre-estimate of loss[/FONT]
[FONT=&quot]The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:[/FONT]
[FONT=&quot]"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." [/FONT]
[FONT=&quot]There was no parking charge levied. On the date of the claimed loss it was not at full capacity. There can have been no loss arising from this incident mainly as food and drink were purchased during the visit. Neither can MET Parking lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. In this case, MET Parking has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. Again, it is the Appellant's position that MET Parking has suffered no loss for the duration that the car was parked.[/FONT]
[FONT=&quot]In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £50 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.[/FONT]
[FONT=&quot]POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]C) Punitive charges and unfair terms[/FONT]
[FONT=&quot]The charges are unfair terms (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations (1999). In particular, 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." [/FONT]
[FONT=&quot]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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the outcome”.[/FONT]
[FONT=&quot]I believe that the presented charge is disproportionate to the loss incurred, contravening the Unfair Contract Terms Act 1997. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]D) No contractual authority to make contracts with drivers nor locus standi to pursue charges in the courts [/FONT]
[FONT=&quot]MET Parking 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, MET Parking have not provided 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, I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. [/FONT]
[FONT=&quot]I would request that POPLA please check whether MET Parking has provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system and whether that contract is compliant with the requirements set out in the BPA Code of Practice[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]E) No clear map of the site boundary - no contract with driver formed[/FONT]
[FONT=&quot]It seems that MET are alleging the driver went off-site but have supplied no evidence of this, nor explained what constitutes 'off-site' and what their 'site survey' involved. And it has not been established whether they checked if, perhaps, a passenger was on site all along, and how this observation was made, by whom and how it was recorded as evidence. I put MET to strict proof of this 'site survey' and photographic evidence of neither a driver nor passenger of this car being on site; such evidence to include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left. If no such sign nor evidence exists then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of evidence I deny that there was any contravention. I say there was no contract formed with the driver to pay a charge in 'exchange' for going off site; there was no consideration, offer nor acceptance and no site boundary defined. [/FONT]
[FONT=&quot]The burden of proof shifts to MET to prove otherwise and to explain why their attendant (presumably) watched a driver walk towards the edge of an undefined boundary, yet made no attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises. MET have not shown how their 'site survey' established where the occupants of the car were. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012:[/FONT]
[FONT=&quot]http://forums.pepipoo.com/index.php?...=post&id=16231)[/FONT]
[FONT=&quot]District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?...there is a duty to mitigate the loss.' In this case now under POPLA appeal, I contend that MET have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]On the basis of the above points I have raised, I respectfully request that this appeal be allowed. In the event that POPLA is minded not to grant the appeal then, because the Respondent failed to provide any evidence of its entitlement to recover parking charges, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum.[/FONT]