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

Guys_Dad

nigelbb wrote: »

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.

Regettably, Nigel, it's your old friend Milton Keynes again! :rotfl: Not your favourite town, I guess !

I have only this one example to quote - one familiar to many regulars I guess.

One victory posted by "the enemy" here. http://www.debtrecoveryplus.co.uk/cms/uploads/judgement.pdf

The judge ruled as follows

The other point he raises, which is an interesting one and which causes me to pause and think for longer, is whether the £80 fixed charge notice is a penalty, which would be unenforceable (by reference to the authorities) because there would be a failure on the part of the Claimant to prove loss or damage, which is the remedy for breach of contract (putting a party back into the position that they would be had the contract not been breached), as opposed to a genuine attempt by the claimant to estimate its losses as a consequence of a breach or potential breach of contract. That is an interesting point. It is interesting because there are many companies who impose significant penalties which have been found to be, and clearly are, penalties as opposed to genuine losses. Is this one of those cases?

11. I have looked at the evidence, and the conclusion that I have reached is that this is not one of those cases where the claimant is imposing a penalty, unreasonable or otherwise – a penalty which is not a genuine attempt to pre-judge or pre-estimate its losses. I have looked at the claimant’s witness statement and the evidence attached to it in that respect and the attempt to estimate in some detail the number of hours engaged in pursuing these particular issues, and how the £80 penalty is worked out. I am satisfied that we have here is a genuine pre-estimate of loss as opposed to a penalty.

I am satisfied myself that this is a fair and transparent and lawful system operated by the claimant as part of their running of this particular site. I do not criticise Mr. Yau for raising that particular issue, because they are issues which are genuine as opposed to fanciful. So for those reasons I find for the claimant and I will enter judgment accordingly for the amount of the claim, which is £80.

This shows that in at least one case, courts have determined that the ridiculous cost is a fair reflection of cost. Can't believe it was the only one, but have no proof either way.

Of course, in the Ibbotson case, Judge McIlwaine to a different view - most sensible chap!

Aaron_Aadvark

Going back to the disabled bay charge, which is supposedly not a penalty. Are the PPC not saying in charging £1.00 to park in a normal bay or £90.00 to park in a 'disabled' or bay that they are operating a two tier system ie a "first class" bay at £90 and an 'economy' bay at £1. So, by offering extra large bays near the shops to anyone willing to pay 'first' class prices, are they not depriving users who may have need to use these spaces because of circumstances defined under the Equalities Act of these spaces?

Trying to fit POPLA decisions in with my understanding of 'the law' makes my head spin. :money:

Stroma

spacey2012 wrote: »

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.

I disagree to some aspects of your post, we cannot ignore popla is there, and to advise only one thing is not going to work every time, you got to give people the whole picture not just the one you think they need to hear.

Going through the bpa code of practice only highlights failures of the parking companies practices, showing willing to use the appeal structure shows willing to get things sorted before any possible claim. Certain parking companies like parking eye appear to be making claims, they also are trying to circumvent popla.

The advice has got to adapt as things progress, whilst ignore works in a majority of cases it won't satisfy those who kick the scammers in the teeth. It is best to give advice on all options then that person makes their own decisions.

spacey2012

More people lose than win, parking scammers will go after those who lose at POPLA, make absolutely no mistake about that.

There is absolutely no legal duty to partake in out of court mediation with anyone who claims a debt, the refusal to enter the offer of mediation can not be used to change or weigh on a legal decision, legal cases are brought and judged on fact alone, you either owe it or you dont, just as the Parking company is free to refuse your offer of discussing it with you on the end of Blackpool pier in your own Kangaroo court.
POPLA will create an actual loss for parking companies to start a claim and add the rest on.
Make absolutely no mistake over that.
On Ignoring, it leads by about 4 Million to half a dozen POPLA cases so far in terms of success over the past 3 years.

All contracts have some form of acceptance, you can not pick to argue over the terms of the contract at Mediation and then claim not to have one, so IMO it can only go against you by partaking.

Nothing has changed with regards to Keeper liability and Parking scammers chancing it should be dealt with the same way they have always been.
In court when they chance it.
Hard and straight at them.

A vendetta of we can cost the parking companies the POPLA fee revenge is swamping the board.
It will come unstuck, mark these words.

Guys_Dad

Until we get the 2012 and 2013 stats sometime in the future, we will not know whether or not there is an increase in the number of court papers being sent out and the number coming to court.

There is no point in constantly referring to years gone by when PPCs had a good income generated by clamping fees. That business has gone west and they are having to resort to other ways to maintain their income.

We can all agree that in those free car parks, they would lose money except for PCNs. We can also agree that the word is spreading about these charges being unenforceable.

Your comments about the BPA and its COP being irrelevant in court - let's agree on that for a moment. But if POPLA are prepared to rule in a motorist's favour because the PPC failed to follow BPA or POPLA guidelines, then surely that has got to be a benefit?

Times have changes and we must take advantage where we can of any weapon we can use. It's no use saying only a tiny number get to court. If you are one of the tiny number, (and, of course, they can inflate the costs by saying they have had to hire debt collectors / solicitors because you didn't respond) , then you are going to kick yourself if you didn't see if you could have won using PPCs own rulebook.

bargepole

Guys_Dad wrote: »

Until we get the 2012 and 2013 stats sometime in the future, we will not know whether or not there is an increase in the number of court papers being sent out and the number coming to court. ..

I haven't yet done the FOI request to get the 2012 figures, but evidence suggests they'll be broadly in line with the numbers for 2011.

The 2013 figures are going to be a whole new ball game post-POFA, and we've already had a significantly larger number of court claims posted on this and other forums, for which I and others have been helping with defences. Anecdotal evidence suggests that the PPCs are split into two camps, those who frequently make claims and those who rarely or never do.

The (non-exhaustive) lists are as follows:

a) Litigators (to whom one should respond and use POPLA):

Aintree Hospitals NHS Trust
Civil Enforcement Ltd (most of theirs relate to old, pre-POFA tickets)
Combined Parking Solutions
De Vere
Excel / VCS
East Kent Hospitals NHS Trust
Parking Eye
TPS
UKCPS

b) Non-litigators (probably still safe to ignore)

Euro Car Parks
G24
NCP
Premier Park
UKPC

If anyone knows of good reasons to add other companies to either list, please do so.

nigelbb

In every case that I have seen the PPC has breached the BOPA CoP in some way or other whether in not offering a 40% discount for prompt payment or inadequate signage or incorrect wording on the ticket etc Given that they wrote their own rule book you would think that they could manage to stick to their own rules!

Guys_Dad

bargepole wrote: »

I haven't yet done the FOI request to get the 2012 figures, but evidence suggests they'll be broadly in line with the numbers for 2011.

The 2013 figures are going to be a whole new ball game post-POFA, and we've already had a significantly larger number of court claims posted on this and other forums, for which I and others have been helping with defences. Anecdotal evidence suggests that the PPCs are split into two camps, those who frequently make claims and those who rarely or never do.

The (non-exhaustive) lists are as follows:

a) Litigators (to whom one should respond and use POPLA):

Aintree Hospitals NHS Trust
Civil Enforcement Ltd (most of theirs relate to old, pre-POFA tickets)
Combined Parking Solutions
De Vere
Excel / VCS
East Kent Hospitals NHS Trust
Parking Eye
TPS
UKCPS

b) Non-litigators (probably still safe to ignore)

Euro Car Parks
G24
NCP
Premier Park
UKPC

If anyone knows of good reasons to add other companies to either list, please do so.

That's very helpful. And it does tend to support those who say "horses for courses". I will bookmark your post.

Philter

bargepole wrote: »

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.

Thank you, I think this is the killer argument with regards to the issue I brought up, which leaves this strand of the argument as being whether or not the parking charges reflect actual loss. So...

Guys_Dad wrote: »

Regettably, Nigel, it's your old friend Milton Keynes again! :rotfl: Not your favourite town, I guess !

I have only this one example to quote - one familiar to many regulars I guess.

One victory posted by "the enemy" here. http://www.debtrecoveryplus.co.uk/cms/uploads/judgement.pdf

The judge ruled as follows

The other point he raises, which is an interesting one and which causes me to pause and think for longer, is whether the £80 fixed charge notice is a penalty, which would be unenforceable (by reference to the authorities) because there would be a failure on the part of the Claimant to prove loss or damage, which is the remedy for breach of contract (putting a party back into the position that they would be had the contract not been breached), as opposed to a genuine attempt by the claimant to estimate its losses as a consequence of a breach or potential breach of contract. That is an interesting point. It is interesting because there are many companies who impose significant penalties which have been found to be, and clearly are, penalties as opposed to genuine losses. Is this one of those cases?

11. I have looked at the evidence, and the conclusion that I have reached is that this is not one of those cases where the claimant is imposing a penalty, unreasonable or otherwise – a penalty which is not a genuine attempt to pre-judge or pre-estimate its losses. I have looked at the claimant’s witness statement and the evidence attached to it in that respect and the attempt to estimate in some detail the number of hours engaged in pursuing these particular issues, and how the £80 penalty is worked out. I am satisfied that we have here is a genuine pre-estimate of loss as opposed to a penalty.

I am satisfied myself that this is a fair and transparent and lawful system operated by the claimant as part of their running of this particular site. I do not criticise Mr. Yau for raising that particular issue, because they are issues which are genuine as opposed to fanciful. So for those reasons I find for the claimant and I will enter judgment accordingly for the amount of the claim, which is £80.

This shows that in at least one case, courts have determined that the ridiculous cost is a fair reflection of cost. Can't believe it was the only one, but have no proof either way.

Of course, in the Ibbotson case, Judge McIlwaine to a different view - most sensible chap!

This is why it might be good, in some cases, to immediately correspond with the PPC, but not appeal. Let me explain...

If you ignore the PPCN then the PPC has to go to the trouble of finding out who you are via the DVLA, and then go to the trouble of sending out letters to you and sub-contracting debt-collecting agencies. They could put up an argument in court that the PPCN factored in these costs. If you go to appeal, they can put up an argument factoring in the costs of the appeal etc.

What I did, was to immediately and aggressively correspond with the PPC demanding amongst many other things, proof that the charge reflected actual loss. At that point in time there had been no appeal, they had no need to contact the DVLA, they had spent no time in tracking me down. There were literally no costs to them other than the actual loss of the cost of the minutes of parking I didn't pay for (due to the landowner, and I wrote to the landowner offering him that sum, and then let the PPC know that) as well as the cost of printing out the ticket and putting it on my windscreen. They couldn't even begin to argue about factoring in the cost of hiring a parking attendant, because by a peculiar quirk, the land owner had another company doing that. There would be no "hours engaged in pursuing these particular issues", as the judge in the above case gave as his reason for upholding the PPCN. They had to prove that the £60 charge reflected the actual loss as it stood at the time I infringed the T&Cs. I don't think that any judge would accept that that would be £60, when I owed them less than 1 hour's parking fees (less than £1.50).

Within 10 days of the PPC (member of BPA) receiving my letter (by recorded delivery) they sent me a letter telling me that they had cancelled the charge as a 'gesture of goodwill'.

Obviously, there are other good reasons to ignore PPCNs, but I wanted to go for the 'actual loss' angle, and felt that offering the land owner a sum equivalent to actual loss, notifying the PPC that I had done that, and demanding a breakdown of actual loss, was the way to go. Of course that doesn't negate the fact that the actual loss was never going to be the PPC's in the first place, it was always the landowner's, and that if the PPC had a contract to offer some sort of parking management service to a land owner, then they can't claim a loss when they have specifically been contracted to enforce parking charge notices as part of that service.

Half_way

lots of talk on contacts, and contractualy obliged to, but where does that leave the unfair terms in consumer contracts regualtions?
aka CPUTR or Consumer Protection from Unfair Trading Regulations

in theory a car parking compnay could issue a contract agreement under these lines

"This car park is managed by rainbow parking, by using this car park you are contractualy agreeing to the following terms, a £100 parking charge applies if...
* You park your vehicle with the front wheels positioned away from the roadway - all cars must be parked with their front wheels towards the road ( reversed in)
*Vehicles must be parked in bays and parralell to the markings, drivers parking vehicles at more than a 5 degree angle within each bay will be charged £100, billed to
*all vehicles must display a valid tax disc, with at least two months remaining
*Vehicles must not contain any hazourdous materials, such as ( but not limited to ) Bottled Gas, liquid fuels, explosives etc
*Vehicles must be parked according to their colour, as per the colours of a rainbow, for example blue cars must not park next to red cars see signage for details.

Drivers using this cazr park not complying with the above contractualy agree to pay a £100 parking charge notice made payable to Rainbow parking, reduced to £60 for early payment within 14 days.