POPLA Decisions

stevew48

stevew48 wrote: »

I won at POPLA:j Many thanks to all who provided help and guidance.
The decision of POPLA is provided below :

29 May 2014
Reference *********
always quote in any communication with POPLA
Stevew48 (Appellant)
-v-
UKCPS Limited (Operator)
The Operator issued parking charge notice number ******* arising out of the presence at Winwick Street Warrington, 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
At ***** on the ********, the operative observed a **** with registration mark ******** parked at Winwick Street, Warrington. A parking charge notice was issued for parking without a valid permit or authority.
The operator’s case is that the terms and conditions at the site require a permit to be displayed. The signage is placed unambiguously throughout the car park and therefore as a permit was not displayed in the appellant’s vehicle, she had parked in contravention of the terms and conditions.
The appellant’s case is that there is a lack of BPA compliant signage at the site and the charge amounts to a penalty as it is not a genuine pre estimate of loss. The appellant additionally states that one of the signs on site refers to the charge as a ‘penalty,’ the notice to keeper was not properly issued and the operator has failed to show that they have a contract in place with the landowner that grants them the authority to issue parking charge notices.
Considering carefully all the evidence before me, the operator has provided photographs of a number of different signs at the site. One of the signs states permit holders only and the other sign states pay and display. The breach referred to in the operator’s evidence and the parking charge notice is parking without displaying a valid permit. Although the signage appears to indicate that an area of the car park has a pay and display requirement, it is for the operator to show that the appellant breached the condition referred to on the parking charge notice.
The charge represents liquidated damages, which is compensation agreed in advance. This means that the amount of the charge should represent the losses incurred as a result of a breach of the terms and conditions.
In order for consequential losses to arise from the breach, there has to be an initial loss incurred. Although the operator states that the initial loss is the cost of the traffic warden; I am not satisfied that this represents an initial loss, as the operator would have been in the same position had they not issued the parking charge notice. On a balance of probabilities, I am not satisfied that the operator has sufficiently shown that they incurred an initial loss as a result of the appellant’s failure to display a valid permit and consequential losses can therefore not flow from the breach. As a result, I need not decide any other issues raised by the appellant.


3 29 May 2014
Accordingly, this appeal must be allowed.



Thanks once again especially to Coupon Mad et al for templates etc keep up the excellent work

Despite winning my appeal above I got home from work on Friday to find that UKCPS had the cheek to send me a letter informing me that as I had not used my POPLA code that they sent me the appeal time has expired and I should pay the £100 penalty without delay ... Obviously I will be emailing the BPA and POPLA with a copy of the letter and I have a mind to write to UKCPS requesting payment of my time as referred to in my first letter to them.

steve w48

Umkomaas

stevew48 wrote: »

Despite winning my appeal above I got home from work on Friday to find that UKCPS had the cheek to send me a letter informing me that as I had not used my POPLA code that they sent me the appeal time has expired and I should pay the £100 penalty without delay ... Obviously I will be emailing the BPA and POPLA with a copy of the letter and I have a mind to write to UKCPS requesting payment of my time as referred to in my first letter to them.

steve w48

I would ask the BPA if this is a glowing example of how they are managing to 'drive up standards in the parking industry'.

As the venerable Jim Royle would say, 'Drive standards up my 4rse' :eek:

Coupon-mad

Just found this one on pepipoo where VCS were beaten and the Assessor mentioned commercial justification again. Post #44:

http://forums.pepipoo.com/index.php?showtopic=87028&st=40&start=40

23 June 2014
Reference xxxxxxxxxxx
always quote in any communication with POPLA
(Appellant)
-v-
Vehicle Control Services Limited (Operator)

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 beyond the bay markings’. 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 failed to respond to the Appellant’s representations
within the timescales required by the British Parking Association Code
of Practice.

The Operator submits that the charge does in fact represent a genuine pre-estimate 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 willnot 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 £166.69 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 breaching 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.

Assessor

Coupon-mad

And another VCS case won on no GPEOL:

http://forums.pepipoo.com/index.php?showtopic=89594&st=40&start=40

The OP intends to update an article that was in the local rag about it too. All publicity is good publicity if it tells people how easy it can be to win at POPLA.

HTH

notinuse

Reasons for the Assessor’s Determination
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]On x April 201x, the appellant was issued with a parking charge notice for breaching the terms and conditions of the parking site.
It is the operator’s case that there was a maximum stay of 2 hours at the parking site, which the appellant overstayed. 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 evidence from the operator’s automatic number plate recognition system which shows the appellant’s vehicle, registration number xxxxx, entered the site at 10:57 and exited at x, a total stay of 2 hours and x x minutes.
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 a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included "membership costs" and "IT systems". I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am not satisfied that the operator has discharged the burden.
In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss.
Accordingly, this appeal must be allowed.
[/FONT][/FONT]Farah Ahmad

trisontana

Name of PPC please?

Dee140157

Notinuse's PPC was CEL

abacab

A win against Highview today.
Won on no GPEOL .
A nice feeling that this has cost them around £30 ,after demanding £75 for a 16 minute overstay.
Thank you so much Coupon Mad and others on here for all your sterling advice.

mmccullion

Thanks everyone for the help!

-v-
Excel Parking Services Limited (Operator)

Reasons for the Assessor’s Determination
At 20:05, on May 7 2014, an automatic number plate recognition (ANPR) system recorded the Appellant’s vehicle entering Peel Centre (Stockport).
The Operator’s case is that the Appellant breached the car parking conditions by parking without displaying a ticket/permit.
The Appellant made representations stating his case. One of the points raised by him was that the Operator has failed to demonstrate that the charge is a genuine pre-estimate of loss.
Considering carefully all the evidence before me, the Operator has stated that the charge is a genuine pre estimate of the loss incurred and in the event that it is not a genuine pre estimate of loss, the charge is commercially justified.
The Operator has provided evidence to show that they incur costs of £166.01 but in order to meet with the requirements of the British Parking Association, the maximum charge that can be imposed is £100. Although the operator has stated the final charge, they have failed to indicate how this charge was calculated. Although the Operator has explained costs that may be incurred, a number of the items referred to amount to general operating costs and would not appear to be substantially linked to the cost incurred as a result of the breach. In the absence of an explanation as to how the amount of the charge was reached, I am not satisfied that the Operator has provided sufficient evidence to show that the charge represents a genuine pre estimate of the loss incurred.
If the charge is not found to amount to a genuine pre estimate of loss, the Operator has stated that the charge is commercially justified. The Operator has provided a number of cases in support of this submission. In cases I have seen from the higher courts and indeed the cases submitted by the Operator, it is clear that the charge cannot be commercially justified if the primary purpose of the charge is to deter a breach.
Where the charge represents damages, the amount of the charge is required to be compensatory rather than punitive; with the goal of placing the parties in the position they would have been in, had the contract been performed. In this case, the primary purpose of the charge is to prevent vehicles from parking without purchasing parking time. This is to deter a breach of the terms and conditions and I am consequently not satisfied that the charge can be commercially justified. The Operator has not demonstrated that the charge isa genuine pre estimate of loss or commercially justified and I therefore have no evidence before me to refute the Appellant’s submission that the charge does not amount to a genuine pre estimate of loss.
I need not decide any other issues.
Accordingly, the appeal must be allowed.

comp1

Thank you to this site for setting me on the right road, with templates and advice , but I was a little overwhelmed when it got to the Popla stage, so many choices of appeal, I just couldn't decide which one fitted my case.
It was getting very close the Popla appeal deadline so I followed a link on this site to http://www.parkingticketappeals.org.uk/ and asked if they could help, yes was the answer , so I sent details of letters sent so far and my popla code and the same day they lodged my appeal.
I waited and today received an e-mail with the magic words "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 .

Christopher Adamson
Assessor


Thank you again to this site and http://www.parkingticketappeals.org.uk/ (£16 well spent)for all the help and support