PPCN don't have to reflect actual loss, they are just enforcement of contract?

Philter

I recently had a private parking charge company cancel my parking charge notice as a 'gesture of goodwill' (lol - riiiight) after I wrote them a very long letter demanding that they send me proof of their ability to offer the contract/their ability to issue court proceedings/that the charge reflects actual loss/their adherence to the DPA/that their appeal procedure is independent and has no conflict of interest etc etc, and also after I informed them that I had already offered the land owner a sum of money reflecting actual loss (which the land owner effectively refused).

I was reading the forums this morning, and in particular the sticky thread 'POPLA Decisions'. Now I know that POPLA is not binding and is pretty much a kangaroo court set up by the BPA, but they have repeatedly turned down appeals where the 'defendant' claims that the charge is not reflecting actual loss, or a pre-estimate of loss, as it must under contract law.

They uphold the parking charge company's argument that the charge (£60 for example) is not a reflection of actual loss, and doesn't have to be. They say that the driver entered into a contract when he parked, and under the terms of the contract he agreed to pay £60 if he did not comply with the conditions of the contract. See text of three different POPLA findings below, taken from the 'POPLA Decisions' thread

"A further point made by the Appellant in relation to whether the parking charge is a genuine pre-estimate of loss is that the charge is actually a penalty. The Operator submits that, a penalty has been defined in the courts as a sum that is in excess of the damage caused by non-performance of an obligation under the terms of a contract.

The Operator submits that in any case, the charge is not a genuine preestimate of loss because it is an invoice that the Appellant agreed to pay, for the use of a disabled space in which the vehicle was parked without a disabled badge.

Another statement by the Appellant is that if the parking charge amounts to a genuine pre-estimate of loss, the amount of the loss should not change from £60 for the first 14 days and rise to £100 thereafter. The Operator responded that the genuine pre-estimate of loss is £100, however that there is a discount if the charge is paid within the first 14 days.

In addition, the Appellant states that if the parking charge is a genuine preestimate of loss, the amount should vary for different breaches of the terms and conditions, for example parking over a white line or overstaying. The Operator does not respond to this point.

The legal submissions of the Appellant set out above are not accepted. The Appellant parked the vehicle in the car park, thereby agreeing to the contractual terms and conditions displayed on the signs. These included the condition that vehicles may only park in a disabled bay if a valid disabled badge was displayed.

Another term of the contract was that if the vehicle was parked without complying with the conditions of the contract, the motorist agreed to pay a parking charge of £100 (or £60 if paid within 14 days). The submissions I believe the Operator is trying to make is not that the Appellant has breached the contract giving rise to damages, as the Appellant appears to believe, but that the Operator is seeking to enforce the contract. This is because the Operator is seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle at Alma Leisure Park. The contract cannot now in effect be renegotiated."

and....

"The parking charge is therefore not classed as damages or a penalty for breach, either of which might be linked to actual loss resulting from a breach and would need the Operator to prove that the parking charge was a genuine pre-estimate of loss."
"I must find as a fact that a term of the contract was that if the vehicle parked without complying with the conditions of the contract, the Appellant agreed to pay a parking charge of £85. The Operator is seeking to enforce the contract, by seeking payment of the charge which the Appellant accepted as a term of the contract by parking his vehicle at Baltic Quay. The contract cannot now in effect be renegotiated.

The parking charge is therefore not classed as damages or a penalty for breach, either of which might be linked to actual loss resulting from a breach, and would need the Operator to prove that the parking charge was proportionate, and amounted to a genuine pre-estimate of loss. The parking charge is a contractual term."

and...

"A further point made by the Appellant in relation to whether the parking chargeis a genuine pre-estimate of loss is that the charge is actually a penalty.

Another statement by the Appellant is that if the parking charge amounts to agenuine pre-estimate of loss, the amount of the loss should not change from £60 for the first 14days and rise to £100 thereafter.

In addition, the Appellant states that if the parking charge is a genuine pre estimateof loss, the amount should vary for different breaches of the terms andconditions, for example parking over a white line or overstaying.

The legal submissions of the Appellant set out above are not accepted. The Appellant parked the vehicle in the car park, thereby agreeing to thecontractual terms and conditions displayed on the signs. These included the conditionthat only permit holders may park in an allocated area, and that permits mustbe fully displayed.

Another term of the contract was that if the vehicle was parked withoutcomplying with the conditions of the contract, the motorist agreed to pay aparking charge of £100 (or £60 if paid within 14 days). The Appellant appearsto believe that the charge has been issued for breaching the contract, but inactual fact, the Operator is seeking to enforce the contract. This is byseeking payment of the charge which the Appellant accepted as a term of thecontract by parking his vehicle at The Crescent. The contract cannot now in effect be renegotiated.

The parking charge is therefore not classed as damages or a penalty for breach,either of which might be linked to actual loss resulting from a breach andwould need the Operator to prove that the parking charge was a genuine pre-estimate of loss."

Now obviously this goes completely against what the DFT say in their guidance notes for POFA 2012 (see page 23 of 'Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges' - I would post a link, but don't have those privileges yet) and also against what some judges have found in court cases.

I remember seeing a very coherent argument against this type of POPLA finding somewhere on the internet, but I can't find it now. What is the best way to argue against this idea that the charges don't have to reflect actual loss, because they are not damages due to breach of contract, but are just part of the contract which was accepted by the driver in the first place? In effect, the PPCN are just enforcing a contract which the driver agreed to, not trying to claim losses due to breach of contract....?

The whole issue of parking charges having to reflect actual loss, or be a pre-estimate of loss, has been a key argument, it now seems that some companies have found a way around this, and POPLA supports them? I don't think that a court would view it in the same way, but that's besides the point...the fact that POPLA accept this argument is an issue.

Guys_Dad

Of course they accept this argument. The whole Private Parking Industry is built on this premise. If you look at the origins and roots of POPLA, this comes as no surprise.

From anecdotal evidence on here, courts have come down on both sides of whether or not a £100 or so charge is right. Judges are not all of one mind.

The previous vcs -v- hmrc case has been overturned upon appeal, so that particular precedent has gone for the time being.

So the smart thing as far as POPLA goes is to accept that they will always back a PPN charge as valid unless the PPC has failed to follow due process and has the contract right to make these charges.

The ironic thing is that POPLA may very well take a different and sometimes wrong stance to that of a court, but does adhere to its origins and will apply the BPA COP.

So, the smart way to win at POPLA is to get evidence that the PPC is failing in its adherence to the BPA COP or the appropriate schedule of the POFA ,n some way, to challenge their right of occupancy and turn their "contractual obligations" with both against them.

Philter

Thanks Guys Dad. I agree, that there are other 'angles of attack' which are more fruitful if you want to go down the POPLA route, but my point is that their whole argument goes entirely against even the DFT's guidance (ie the DFT say that the parking charge is a charge which reflects loss due to a breach of contract). It's not the amount of the charge that I'm calling into question, it's the fact that they are saying it is not a charge for breach of contract at all. The judges who have found for PPCs in the past, have (as I understand) upheld the PPCNs because they accept that they do reflect loss (I could be wrong here), but that is not the argument which the PPCs are putting into play here.

---

I guess one argument could be that if the charge is not a reflection of loss, but is a charge which the driver accepts to pay if he does not comply with the T&Cs of parking, then upon payment of £60, he is turning down one offer (e.g. paying £2.00 to park for an hour etc) in favour of another (e.g. paying £60 to park in a disabled space). It is in effect, an alternative offer (adhere to the T&Cs as they are stated, or pay £60 and don't adhere to them). Therefore the driver can choose to pay £60 and park across 3 bays, staying there for a month whilst he jets off on an extended holiday. Because the land owner is the only one with the right to determine the contract offers on his land, it would be worth writing to the land owner confirming with him that that is the offer he is making. Obviously, he's going to say no, and will no doubt say that the £60 charge is for breaching the contract, which will shoot the PPC in the foot.

Am I right? I may have worded the above badly, but I'm in a rush to get out!

Philter

...and actually, I guess you could just fall back to the good old Unfair Terms in Consumer Contracts Regulations 1999:

"5.—(1) 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.

(2) 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 substance of the term."

8.—(1) An unfair term in a contract concluded with a consumer by a seller or supplier shall not be binding on the consumer.

1. Terms which have the object or effect of–(e) requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation."

...in which case it doesn't matter if the driver accepted the contract and all the terms in it, if the terms are unfair, they are not binding. The PPC is back to having to explain how the £60 (£100 or £120) charge is proportionate, and a fair deal for the driver.

Guys_Dad

Arguments for any court case, guaranteed failure at POPLA.

nigelbb

Philter wrote: »

The whole issue of parking charges having to reflect actual loss, or be a pre-estimate of loss, has been a key argument, it now seems that some companies have found a way around this, and POPLA supports them? I don't think that a court would view it in the same way, but that's besides the point...the fact that POPLA accept this argument is an issue.

It's irrelevant that POPLA side with the PPCs because as we know they are biased. POPLA is not a court of law & until such things are tested in a court of law then they are merely opinion. Lots of unfair terms can be put into a contract but they have no force of law simply because they are unfair. The British Parking Association Code of Practice says that charging someone £100 for overstaying 5 minutes or having a wheel outside a marked bay is fair & reasonable but they would say that wouldn't they? The Government's own advice document "Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: recovery of unpaid parking charges" states that:-

Charges for breaking a parking contract must be reasonable and a genuine preestimate 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

Which interpretation do you think a court would follow? Hint - it won't be the trade body of those with a vested interest in maximising profits with shady practices which chooses to ignore the law.

Stroma

Guys_Dad wrote: »

Of course they accept this argument. The whole Private Parking Industry is built on this premise. If you look at the origins and roots of POPLA, this comes as no surprise.

From anecdotal evidence on here, courts have come down on both sides of whether or not a £100 or so charge is right. Judges are not all of one mind.

The previous vcs -v- hmrc case has been overturned upon appeal, so that particular precedent has gone for the time being.

So the smart thing as far as POPLA goes is to accept that they will always back a PPN charge as valid unless the PPC has failed to follow due process and has the contract right to make these charges.

The ironic thing is that POPLA may very well take a different and sometimes wrong stance to that of a court, but does adhere to its origins and will apply the BPA COP.

So, the smart way to win at POPLA is to get evidence that the PPC is failing in its adherence to the BPA COP or the appropriate schedule of the POFA ,n some way, to challenge their right of occupancy and turn their "contractual obligations" with both against them.

The hmrc v vcs points still stand, nothing of significance was changed in regards of ability to offer contracts, the only thing that changed was where there is a permit scheme in place, so a vast majority of cases it makes little difference. The guys over on pepipoo are still advising to include the ability to form contracts in the defence.

And popla is meaningless in any case, the only one that counts is the small claims, there is no way on earth that most of these demands will land up in a court. The permit one above is a case in point, if you are parked in a bay that is in your tenancy agreement, how can there be loss ?

nigelbb

In the case of pay & display car parks there is some force to the argument that you have entered into a contract as all the components of a contract have been satisfied viz offer, acceptance, consideration but that still doesn't make a £60 charge for overstaying fair. In cases of parking where there is no payment then there is a very strong argument is that there is no contract & any overstay is a trespass in which case only the landowner can sue & then must establish a genuine loss. No penalty charge can be levied for a trespass as there was no contract. Likewise if you didn't see the signs there is no contract so it must be a trespass.

Philter

I quite agree with you Nigel, indeed I referred to the DFT guidelines in my initial post. I suppose I'm just surprised (I know I shouldn't be) that POPLA would accept such an argument, when it's so obviously weak. They're trying to redefine what the PPC is, so as to side-step the 'actual loss' problem. I know that this won't stand up in court, but it seems that it's an argument which POPLA upholds every time.:mad:

bargepole

Guys_Dad wrote: »

... The previous vcs -v- hmrc case has been overturned upon appeal, so that particular precedent has gone for the time being. ...

In the appeal court ruling for VCS v HMRC, it was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

This means that they can NOT be considered contractual charges. If they were, they would be subject to VAT, and the PPC would have to: a) provide a VAT invoice; b) provide a facility for payment at the point of supply of the service; and c) account to HMRC for the VAT element of the charge. In most cases, the PPCs fail on all three of these counts.

This leaves us with damages, and therefore the PPC has to show their actual, or pre-estimated, loss, which won't be anywhere near the ticket price.

I haven't yet run these arguments past POPLA, but have included them in some defences I've done for people who've received court claims. We'll see what happens.

spacey2012

POPLA is a Kangaroo court, set up by, funded by and headed by fake parking ticket scammers.
They can say anything they like, because it is their shop, run by them.
Nothing they say or do is binding and the people who claim to be POPLA "legal eagles" working for them should be reported to the SRA for claiming to be legal representatives issuing statements that are totally contrary to English law.
Legal terms are incorrectly used to add deception to the process "appellant"
You can not be an appellant where there is no court to judge.
It is a kangaroo court, complete with Fake kangaroo judges, fake kangaroo legal terminology and run by the Club of parking scammers.
Giving it any time of day, adds to it's legitimacy and also adds to it's claim to have the decision legally enshrined .
It should be Ignored, not promoted .

Sending people it's way, makes them pay their way, if it looses money, it will be closed down.
I am 100% against sending anyone to POPLA, it needs to go the same place as the crooks who set it up.
It creates a legitimate charge for them to take losers to court and many are going to come very unstuck indeed as they will get at least the POPLA fee from a County Court case IMO.
A Judgement is a Judgement.