POPLA Decisions

Umkomaas

Knock-Off_Nigel wrote: »

I received a "fake" PCN from Excel Parking at the Peel Centre, Stockport on 29/06/13.

After gratefully receiving advice from a number of members on here I have just received confirmation from POPLA that my appeal has been ALLOWED! The reason.....GPEOL.

Thank you so much to Coupon-Mad and Umkomaas who helped with the appeal wording.

Really pleased for you Nigel, and glad to have been of some help. And thank you so much for feeding this back to us, it really does help to know how our advice is working and if it is still current. :T

Coupon-mad

CP PLUS X 2 wins!! - husband & wife submitted identical appeals, both won but with slightly different decision reasons from 2 different Assessors!

http://forums.pepipoo.com/index.php?showtopic=81245&st=20&start=20

JoJo99:
''Whoo Hoo!!! Submitted identical appeals to POPLA - one for me and one for my husband as we overstayed in a Motorway service station. Both appeals allowed which is great news so thanks to everyone who input to my post, and also shares their knowledge with others so freely.

Decisions were different though, from two different assessors.


Sakib Chowdhury allowed on the fact that the operator (CP Plus) mentioned operational costs so have not proved genuine pre-estimate of loss and also that membership of the approved operator scheme requires clear authorisation from the landowner for parking enforcement and the operator did not produce any evidence to demonstrate it is the landowner or has authority of the landowner to issue parking chare notices.


Jane Slattery allowed on the landowner/authorisation point and no others. The wording on the landowner point was identical in both judgements. She only went on the landowner point, no others.


:T

Computersaysno

Mr/Ms Chowdhury will be getting a slap from their supervisor for wasting time looking for GPEOL once he/she saw there was no 'landowner authorisation' in the PPC pack.

Coupon-mad

BikerPaul on pepipoo tried hard to get a decision on 'not relevant land' citing Quay bylaws, but the adjudicator had a good rummage through the case and found on no GPEOL as he's mentioned that in his first appeal. We had this the other day didn't we, they go looking for no GPEOL like pigs rooting out truffles!

Of course it was Parking Eye:

http://forums.pepipoo.com/index.php?showtopic=83433&st=40&start=40

Longest appeal decision I have ever seen, from Marina Kapour.

GermanKeeper

This seems to be the first GPEOL decision, which refers to the long letters of PE where they try to justify their "losses". I think it should be reproduced here because it contains a lot of new aspects about GPEOL:

The Appellant has submitted that the parking charge does not reflect the loss caused by the alleged breach. Clearly, it is the Appellant's case that the parking charge is not compensatory in nature.

The signage produced states that a parking charge notice would be issued for a “Failure to comply” with the terms and conditions of parking displayed. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.

The Operator submits that the charge is in fact a genuine pre-estimate of loss, and further submits that the charge is justified commercially and so need not in any case be a genuine pre-estimate of loss.

It seems that the courts have accepted a third category of liquidated
damages, a sum which is commercially justified – in cases where the sum is neither a penalty nor is it strictly a genuine pre-estimate of loss – where the Operator has substantiated the loss incurred, or the loss that might reasonably be incurred, by the breach. However, I do not accept the Operator's submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the Appellant.

The Operator has produced a list of costs which it submits justifies the charge as a pre-estimate of loss, however, a substantial proportion of these appear to be general operational costs, and not losses consequential to the Appellant's breach and so I am not minded to accept this justification.

The Operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach, in this case, the Appellant's failure to purchase parking covering the stay of 2 hours 45 minutes. The aim of damages for breach of contract is to put the parties in the position they would have been in had the contract been performed. Accordingly, the Operator cannot include in its pre-estimate of loss costs which are not in fact contractual losses, but the costs of running its business and which would have been incurred irrespective of the Appellant's conduct.

The Operator has referred to the well-known case on whether a sum is a
genuine pre-estimate of loss or a penalty, Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The Operator has also cited a number of more recent cases, including a
reference in county court matter called ParkingEye Limited v Shelley (2013), there is no other citation, in which District Judge Dodd apparently adhered to the finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach […] deduced by comparing the amount that would be payable
on breach with the loss that might be sustained if breach occurred”.

However, in that same case Coleman J made reference to “a dichotomy
between a genuine pre-estimate of damages and a penalty does not
necessarily cover all the possibilities. There are clauses which may operate on breach, but which fall into neither category, and they may be commercially perfectly justifiable”

This was referred to by Manse LJ, as he then was, in Cine Bes Filmcilik Ve Yapimcilik and Another -v- United International Pictures and Others [2003] EWCA Civ 1669, which case the Operator has also cited. The matter involved was the licencing of cinema films and the agreement provided that in the event of certain failures, one party could accelerate the payment of licence fees that would fall due. However, in neither this case nor the Lordsvale case did the total sum of money payable under the disputed provision, effectively amount to the whole basis of the business of one party to the contract.

Decisions in the High Court and above may well offer some specific guidance as to the general issues arising in parking tickets cases but those higher decisions are generally from matters that involve sums and issues so far removed from parking appeals as to be of perhaps only limited assistance to the Assessor. Decisions in the county courts, as already noted, do appear to vary widely as to what a genuine pre-estimate of loss might be in these situations.

The Operator refers to another their cases in the county court, that of
ParkingEye Limited -v- Julie Lee (2013). I was not provided with the full judgment but the Operator states that in that case they had submitted that that the charge was a genuine pre-estimate of loss but also that there was a need for the turnover of cars and shoppers and a need to „deter overstays". They also said they submitted that it is more fair for the charge to vary where there is early payment, as it reflects the lesser amount of work undertaken and the lesser costs thereby incurred. They state that the Judge ruled in their favour. The reduced payment for early settlement may be correct but it is not clear how far, if at all, the charge amounting to deterrence, even in part, was approved.

The Operator submits that Judge Dodd in 2013 Shelley case, again I do not have the full judgment, found the key issue was not whether or not the charge was a pre-estimate of loss but rather whether the purpose of the parking charge is to deter breach, or if the dominant purpose is commercially justified.
Further, they submit that he found on a balance of probabilities that the
dominant purpose was regulation of the car park area, that it was not common for the courts to find a penalty within a contract and that a breakdown of the costs was not required, as the contract was formed on its own terms.

It is not particularly clear as to how "regulation" and "deter" actually differ in the scenario of a car park operation. Again in any event, the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification

Consequently I must find that the Operator has not produced sufficient
evidence to demonstrate that this parking charge is a genuine pre-estimate of loss caused by this breach.

I think one should distinguish two sorts of car park regulation

1) pay car parks, where the main duty of the motorist is to pay for parking. Here a GPEOL would consist of the costs which the PPC has to get the money, if the motorist does not pay or does not pay the full amount. These losses (pay 2,50 to get the keeper data from the DVLA, costs to write and send a PCN...) are the usual losses. Here the well known older considerations of the POPLA assessors still apply.
In these cases I think it would be fair that the charge consists of the original fee (which the motorist did not pay) plus an amount of 4 - 5 GBP (so this should be the GPEOL) for writing the first PCN.

2) "leave" car parks, where the motorist has to leave after the free period. Here it is difficult to say what a GPEOL is: if only one motorist breaks the contract and the car park is half full, the landowner (store/retailer) will have no loss at all. But if the car park is full of cars of people which are no customers at all, the land owner will have an essential loss. So here the GPEOL needs some "commercial justification". But this has nothing to do with the business of the PPC: the PPC has no commercial interest, that the motorists fulfill their contracts in leaving the car park. They only have an interest in motorists who overstay their time and breach the contract.

But the motorists, who breach the contract, should not be responsible for the profit (or non profit) of the PPC. I think this is what this POPLA decision says.
The business costs of the PPC have nothing to do with GPEOL.

The GPEOL should measure the potential loss of the landowner. But this potential loss obviously depends on the time of overstay. If the parking charge does not distinguish between a short overstay of a customer and the whole day parking of a non customer, the charge is unfair and not a GPEOL (in my opinion).

I think one should mention the UTCCR 1999 here and some case law of the ECJ with respect to the directive 93/13 EEC.

Guys_Dad

I would not normally comment on this thread as it is for actual results of POPLA decisions, but if PE are quoting from other PE cases in their paperwork, then we should advise including the Jenkins judgement and the subsequent one that accepted the Judge Jenkins opinion as well.

Computersaysno

Coupon-mad wrote: »

.., but the adjudicator had a good rummage through the case and found on no GPEOL as he's mentioned that in his first appeal. We had this the other day didn't we, they go looking for no GPEOL like pigs rooting out truffles!

Yes, POPLA's MO atm seems to be....

Look in appellant's pack for 'lack of authority'. If found...

Look in operators pack for 'proof of authority'. If not found, uphold appeal. If found, ....

Look in appellant's pack for GPEOL. If found, uphold appeal.

Coupon-mad

PARKINGEYE lose at POPLA again...guess what?

No GPEOL!


https://forums.moneysavingexpert.com/discussion/comment/63852764#Comment_63852764


ParkingEye Ltd (Operator) v 'unamused me'
The Operator issued parking charge notice number xxxxxxx arising out of the presence at Pontypridd Retail Park, on xxxx 2013, ofa vehicle with registration mark xxx xxx. 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: ‘By remaining at the car park for longer than the stay authorised or without authorisation, in accordance with the terms and conditions set out in the signage, the Parking Charge is now payable’. 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) There was no contract formed between the Appellant and the Operator as there was insufficient signage on site; and, there was no
consideration provided by the Appellant as the car park was free.
b) The parking charge is not a genuine pre-estimate of the Operator’s loss.
c) The parking charge is unreasonable and unfair.
d) The Operator does not have sufficient authority to issue parking charge notices in relation to the land as it is not the landowner and does not have permission from the landowner to enter contracts in its own right.
e) The Operator has breached the Equality Act 2010 as it has harassed the driver of the vehicle.

The Appellant has submitted that the parking charge does not represent a genuine pre-estimate of the Operator’s loss, and so is not enforceable. The signage produced states that a parking charge notice would be issued for a “failure to comply” with the terms of parking. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss. The Operator has submitted that its charges have been held to be enforceable in previous cases; however, the Operator has not produced any evidence to justify this parking charge. The losses suffered by breaches of a parking contract may vary depending on the nature of the car park, and the nature of the breach. That a parking charge at a certain level is held not to be a penalty in one car park, does not mean that the same sum is a preestimate of the loss caused in every car park. The Operator has produced a statement which it submits justifies the charge as a pre-estimate of loss; however, I am not minded to accept this justification. The Operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach - in this case the Appellant’s overstay. The Operator has produced a list of costs; however, these appear to be general operational costs, and not losses consequential to the Appellant’s breach.

The onus is on the Operator to prove its case on the balance of probabilities. Accordingly, once an Appellant submits that the parking charge is not a genuine pre-estimate of loss, the onus is on the Operator to produce some explanation or evidence in order to tip the balance in its favour. In this case the Operator has not provided any evidence as to why this charge in a genuine pre-estimate of loss. I am not minded to accept that it is sufficient to simply list the names of previous cases without applying them to this case.
Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

Coupon-mad

The system is corrupt isn't it? The first person in ages who has lost v ParkingEye, because he mistakenly thought a normal mitigating circumstances appeal would work:



http://forums.pepipoo.com/index.php?showtopic=85587&st=0&gopid=896730&#entry896730

Reasons for the Assessor’s Determination
At 17:23 on the 3rd August 2013, a ***** with registration mark *****
was recorded exiting the Snowdon Mountain Railway after a stay of 5 hours and 23 minutes. The car park is a 30 minute free stay car park, after which point tariffs apply and therefore as the appellant had only purchased 4 hours parking time, he had overstayed the time paid for and was therefore parked in breach of the terms and conditions.

The appellant’s case is that he did buy a valid ticket but states that he was unable to return to the car as he had suffered a fall and cut his knee.
He states that he was helped by other walkers and had to determine whether he needed to go to the hospital or not.

Considering carefully all the evidence before me, the appellant does not dispute being aware of the signage or the requirement to purchase parking
time and therefore I am satisfied that the terms and conditions were sufficiently brought to the attention of the appellant. Whilst I sympathise with the appellant and appreciate that he cut his leg and was unable to return to his vehicle, I am unable to consider mitigating circumstances as grounds in which to allow the appeal. As a result of parking in excess of the parking time purchased, the appellant was parked in breach of the terms and conditions.
Accordingly, this appeal must be refused.
Shehla Pirwany
Assessor


Hmmmmmmm...why was this one not referred back to the PPC to suggest they revisit the mitigating circumstances?! Maybe they daren't because PE are so pppp'd off with POPLA.

Computersaysno

Hopefully this person will take it to court.

Would love to see the headlines ...Snowden Railways sues someone that was injured on their mountain!!!