UKCPS Parking Charge Notice

Coupon-mad

Circus4 wrote: »

Thanks. Yes, I have that under Punitive a. above.

I really like it and have added this thread to my 'examples of strong POPLA appeals' link for newbies; should help others to see it doesn't have to be the same old template.

Umkomaas

OP - you mention in a couple of paragraphs that 'The Keeper did not see the notice' also '..... The Keeper was guilty of a civil trespass' (see below).

This identifies the RK as the driver. I think it better you amend The Keeper (in these instances) to 'the driver'.

Otherwise a very good appeal. The pre-estimate of losses really is, at the moment, THE killer blow.

There was no contract between The Keeper and either UKCPS Ltd or The Newland Health Centre. The Keeper did not see the notices when they parked and at that time had no idea any charge whatsoever was required. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc were not satisfied. Only on returning to the vehicle did we notice your PCN affixed to the windscreen. At that time we looked around and saw your sign.

4. Trespass
If there was no contract, then at most The Keeper was guilty of a civil trespass (though this is neither admitted nor denied). If this was the case, The Keeper would be liable to damages. Given that they did no damage to the car park and furthermore that the car park was not full when they parked and they believe, also when they left (Newland Health Centre operates during normal office hours on a Monday to Friday basis), It is suggested that there was therefore no loss at all, particularly as when the car park is in use during the week by patients visiting the centre, they are not charged for the privilege of parking their vehicles in it during their medical appointments.

Circus4

Thanks for your comments. I'll make the amendments as suggested and will let you know how it goes.

Circus4

All,

We won!! Thanks to all for your advice. It was very much appreciated and very interesting.

Please find below the adjudication:
The Operator issued parking charge notice number ****** arising out of the presence at Newland Health Centre, on 26 May 2013, 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
A parking charge notice was applied to a vehicle with registration mark **** ***, for parking without displaying a valid parking permit.
The operator’ s case is that the terms and conditions for parking in the car park are clearly displayed on sign age throughout the site. The signage says: “Permit Holders Only” “Valid Permits must be displayed inside the front windscreen in full view.”” The operator has produced photographs of the vehicle which show that no parking permit was visibly//clearly displayed in the windscreen of the vehicle on the date of the parking charge.
Thee appellant’s case is that the vehicle was not parked improperly and he is not liable for the parking charge. He states that the parking charge is punitive, unfair and unreasonable and it is not proportionate to any alleged breach of contract.
The operator rejected the appellant’s representations, as set out in the correspondence they sent because, they state that a breach of the car park conditions had occurred by parking without displaying a valid permit on the windscreen of the vehicle. They say that the charge is not a penalty and is payable upon a specified eventuality and is agreed too when a vehicle is parked on the land. They refer to the case of Bernstein where Lord Diplock LJ described the principles defining a penalty: “In the ordinary way a penalty is a sum which, by the terms of contract, a promisor agrees to pay to the promise in thee event of non-performance by the promisor of one or more of the obligations and which is excess of the damage caused by such non!-performance .” Lord Diplock says that sums payable upon a “specified eventuality” had not been held in any case to be a penalty and he was not prepared to extend the definition of ‘penalty’.
The operator does respond to the appellant’s submission that the charge is punitive and not a genuine pre-estimate of loss and I appreciate their submissions, nevertheless, their submissions do not sufficiently address such issue.
Having considered all the evidence before me, I must find that on this particular occasion, the operator has insufficiently dealt with the issue of genuine pre-estimate off loss raised by the appelant. As the appellant raised this point, the burden of proof has shifted to the operator to prove that they do. The operator has not discharged the burden.
Accordingly, this appeal must be allowed.
04 November 2013

Aurrela Qerimi
Assessor

bod1467

GPEOL wins again.

Well done.

Coupon-mad

Well done Circus4! I have added your success to the permanent 'POPLA decisions' thread at the top.