How to appeal parking ticket

Danny30

Hi thank you for your response, which is better? having seen the signs but not seeing a reference to any contract or not having seen the signs at all?

Also could you by any chance give me an exact link to the information I should input in para 5? preferably something that I could copy and paste. Thanks

Umkomaas wrote: »

Just a quick scan - looks fine. A couple of points:

Your para 1 re signs. Are you saying you saw no signs therefore no contract possible, or, that you saw the signs but could find no contractual detail on them? You need to be clear - if the latter, I think you might need photos to prove your point (although you could via POPLA to put PE to strict proof that they did confer a contract).

Your para 5 re genuine loss. I thnk you just need to beef that up a bit by stating that erection of signs, back office functions, membership of bodies (you can find the precise details on which PE rely probably in the POPLA sticky at the top of the forum index) are not losses, but normal busness costs. This is - to date - the POPLA silver bullet, so best to be as fully developed on this as possible.

Hold off sending (unless right up against the deadline) for 24 hours so to allow other regulars the opportunity to input.

HTH

Umkomaas

Danny30 wrote: »

Hi thank you for your response, which is better? having seen the signs but not seeing a reference to any contract or not having seen the signs at all?

From my point of view it has to be the true situation. Being flexible with the truth is a very risky strategy.

You just need to be crystal clear in your statement what it is you saw (or didn't as the case may be).

Have you checked the POPLA sticky at the top of the forum index as advised? The last half a dozen posts on there are all about the pre-estimate of losses and they refer to PE.

Alternatively do a search on the forum for PE LBAs, it will be there in many of them.

Danny30

Hi UmKomaas, I have stuck with the first part of my appeal that I saw the signs but didn't see anything regarding a contract. Below is a link to an image of the sign in question, is that fine to send to poplaa?

img690.imageshack.us/img690/791/vaa3.jpg

I have changed my last paragraph, the letter now reads as follows.



' Re: Parking Charge Notice (POPLA REF:

---

)

On ********* I was the registered keeper of vehicle registration number *********. As the registered keeper of this vehicle I dispute and deny the charge for the reasons set out below:

1. No contract

There was no contract between the driver and Parking Eye. The driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

.
2. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.


3. No Landowners Contract

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require Parking Eye Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that Parking Eye Ltd are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.


-I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Parking Eye Ltd to prove otherwise so I require that Parking Eye Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it in the light of VCS -v- HMRC 2012.

Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Parking Eye Ltd and the owner/occupier, containing nothing that Parking Eye Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.



The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.


4. Punitive/unfair/unreasonable charge

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate 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." In this case, Parking Eye has failed to provide any calculation to show how the £60 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that Parking Eye has suffered no loss whatsoever in this case. Even if there was a contract (which is denied), the following matters are relevant:

4(a). Punitive

The parking charge Parking Eye is imposing is punitive and therefore void (i.e. unenforceable). The £60 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.


4(b). Unfair

The £60 charge Parking Eye is imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘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’

And 5(2), which states:

‘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.’




4(c). Unreasonable

The £60 parking charge Parking Eye is imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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 outcome”.


5. Genuine Loss.
In the unlikely event that Parking Eye do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would ask POPLA to request a breakdown from Parking Eye of the pre-estimate of loss in connection with this alleged contravention or trespass and how it has been calculated in accordance with the necessity to make a charge for a known financial loss to the landowner.

Guys_Dad

You write
5. Genuine Loss.
In the unlikely event that Parking Eye do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would ask POPLA to request a breakdown from Parking Eye of the pre-estimate of loss in connection with this alleged contravention or trespass and how it has been calculated in accordance with the necessity to make a charge for a known financial loss to the landowner.

So they tell POPLA and include their running costs. And what next??? You haven't challenged that what they will say will include all the running costs of the business.

Here is an interesting extract from the Ibbotson case at S!!!!horpe court Cut 'v paste, so sorry about the formatting

JUDGE MciL W AINE: I will allow you to ask questions, Mr Ibbotson, in a moment, but just in
19 order that I can be clear on this, I believe that Mr Ibbotson says that £80 is not a fair reflection of your
20 pre-agreed damages; it is a penalty which he says in relation to contract law is unenforceable.
21 MISS COATES: We disagree. You can see ifyou turn to page 21 ofthe bundle ...
22 JUDGE M elL W AINE: Thank you. Yes.
23 MISS COATES: ... this is our losses.
24 JUDGE MciL W AINE: No, they are not your losses. They are the costs of your pursuance of
25 this case, is it not?
26 MISS COATES: If the driver of the vehicle is to pay up within 14 days it only costs us the £80
27 whereas if it is pursued after 14 days and they have not paid up , it costs £120.
28 JUDGE MciL W AINE: Okay. Let's have a look here. Image processing costs you £2 per item,
29 image transfer costs you 52 pence, PCN costs, costs you 62 pence, a wallet costs you 37 pence and a
30 PA uniform ... What is a P A uniform?
31 MISS COATES: The uniform ofthe parking attendant on site.
32 JUDGE MciL WAINE: What has that got to do with this gentleman's parking? That is a cost to
33 the business , is it not?
4
MISS COATES: That is the overall cost of issuing a parking charge notice.
2 JUDGE MciL W AINE: No , it is not. It is a cost to the business. Do you claim tax against the
3 uniforms provided to staff?
4 MISS COATES: I cannot answer that question.
5 JUDGE MciLWAINE: I am afraid if you are not, you need a new accountant. Let us have a
6 look a little bit further on, shall we? Office provision , rates , insurance, service charge, are they costs
7 to the business? It is your evidence. You tell me.
8 MISS COATES: These are what we believe are our costs for having to issue a parking charge
9 notice or the portion that was attributed to issuing a parking charge notice.
10 JUDGE MciL W AINE: That would depend upon how many notices are issued and at how many
11 sites, over how long and what your income and expenditure is, and I am certainly not going to go into
12 a detailed analysis of your company accounts. That is not my job. Mr Ibbotson says, if I find that
13 your case is correct, that the amount I should award should reflect the loss of the space that he took,
14 not his contribution to the running of your business. That has , I think, on any interpretation a degree
15 of force, does it not?
16 MISS COATES : Had Mr Ibbotson not parked in breach of the terms and conditions of Wickes'
17 car park we would not have had to issue the parking charge notice.
18 JUDGE MciL W AINE: I hear what you say about a contract. The point is about the amount of
19 damages. The point that Mr Ibbotson has raised is that it is a penalty. You say, "No, it is a pre-agreed
20 amount of loss". I have looked at the figures which you say are the pre-agreed amount of loss and a
21 lot of them are , frankly , the costs of the which are tax deductible or can be written off against profit, so I again come back to where is your business loss ,?

Note the point about the PPC will have already offset these costs against tax as a running cost of the business. We haven't included that bit before, but it shines the silver bullet. I can't find what items Parking Eye have claimed as costs in threads just now, but when you get their POPLA case, they will be included in the papers, so you may respond in detail then.

Danny30

Thanks for that GD, It was an interesting dialogue.
I am just confused on how to write that last paragraph, should I write

In the unlikely event that Parking Eye do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would ask POPLA to request a breakdown from Parking Eye of the pre-estimate of loss of this in connection with this alleged contravention or trespass, and how it has been calculated. This should not include general running costs of the business and should only calculate and show the pre-estimate loss incurred from this incident.

If this is wrong I would greatly appreciative if you or anyone else could help me with this paragraph as I really am not sure how to write this.

Ofcourse I appreciate that this is my responsibility so if that would take too long than any advice and feedback is very helpful.

Custard_Pie

Danny30 wrote: »

Thanks for that GD, It was an interesting dialogue.
I am just confused on how to write that last paragraph, should I write

In the unlikely event that Parking Eye do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would ask POPLA to request a breakdown from Parking Eye of the pre-estimate of loss of this in connection with this alleged contravention or trespass, and how it has been calculated. This should not include general running costs of the business and should only calculate and show the pre-estimate loss incurred from this incident.

If this is wrong I would greatly appreciative if you or anyone else could help me with this paragraph as I really am not sure how to write this.

Ofcourse I appreciate that this is my responsibility so if that would take too long than any advice and feedback is very helpful.

Danny,

Turn it around on PE and require them to produce a break-down of costs, rather then give PoPLA opportunity to find a way out of doing this. PoPLA tend to re-act upon what the appellant asks for, otherwise they tend to interpret to suit The PPC.

For example, challenge PE to produce a copy of the original contract that permits them to receive financial remedy for an alleged breach of contract, etc, etc. That will negate PoPLAs coaching to the PPC of just producing a letter saying they have it.

Check my signature and search for my post for a comprehensive defense for PoPLA. Tailor to suit.

Guys_Dad

I agree with Custard Pie in a way. At some point, you will need to challenge what Parking Eye claim as costs. You could wait till you have their submission, then raise the point that what tey claim is a cost to the business, shown in their accounts as a cost of running the business. Or you could put a gentle shot across their bows and make the point that the true estimate of loss should not contain any costs of running the business, such as wages, uniforms, rents etc.

What I wrote previously was
But the way to present it in the appeal is to draw attention to the fact that any claimed estimated loss is only to be as a result of your alleged contravention. Whereas the cost of going to the DVLA, stamps and stationery are a true cost or loss specifically incurred in relation to you, any other claimed amount is a cost attributed to running the business and would still be exactly the same if you had been elsewhere on the day in question.

The PPC business model for income to cover the cost of managing a car park is not a concern for you or POPLA and is something between the PPC and landowner.

It may be better to use that a your reply tom PE's submission - there is no right answer, but do be sure to take on board the contract point I made in my previous post.

Danny30

Is this better?


There was no parking charge levied, and the car park is “free”. On the date of the claimed loss it was only at about 10% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Parking Eye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff, wages, uniform, rents) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforce.

With that in mind I therefore request Parking Eye send a breakdown fully detailing the pre-estimate loss in connection with this alleged contravention and how it has been calculated. I also ask that Parking Eye produce a copy of the original contract that permits them to receive financial remedy for an alleged breach of contract.

Custard_Pie wrote: »

Danny,

Turn it around on PE and require them to produce a break-down of costs, rather then give PoPLA opportunity to find a way out of doing this. PoPLA tend to re-act upon what the appellant asks for, otherwise they tend to interpret to suit The PPC.

For example, challenge PE to produce a copy of the original contract that permits them to receive financial remedy for an alleged breach of contract, etc, etc. That will negate PoPLAs coaching to the PPC of just producing a letter saying they have it.

Check my signature and search for my post for a comprehensive defense for PoPLA. Tailor to suit.

Danny30

IS THIS OK FOR A FINAL LETTER :-) I've changed the last paragraph now so hopefully this one is more acceptable and to the point.

Re: Parking Charge Notice (POPLA REF:

---

)

On ********* I was the registered keeper of vehicle registration number *********. As the registered keeper of this vehicle I dispute and deny the charge for the reasons set out below:

1. No contract

There was no contract between the driver and Parking Eye. The driver did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

.
2. Trespass

If there was no contract, then at most the driver was guilty of a civil trespass (though this is neither admitted nor denied). If this were the case, the driver may be liable to damages. Given that no ‘damage’ was done to the car park and that the car park was not completely full when the driver parked or when the driver left, there was in fact no loss at all.


3. No Landowners Contract

I do not believe that the Operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Parking Eye any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Parking Eye Ltd’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require Parking Eye Ltd to demonstrate their legal ownership of the land to POPLA.

I contend that Parking Eye Ltd are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered. VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue with compelling statements of fact about this sort of business model.


-I believe there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Parking Eye Ltd to prove otherwise so I require that Parking Eye Ltd produce a copy of their contract with the owner/occupier and that the POPLA adjudicator scrutinises it in the light of VCS -v- HMRC 2012.

Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Parking Eye Ltd and the owner/occupier, containing nothing that Parking Eye Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.



The notice to keeper is not compliant with paragraph 9 (2)(h) of schedule 4 of the Protection of Freedom Act 2012 in that it does not identify the creditor . The operator is required to specifically "identify" the creditor not simply name them on it .This would require words to the effect of " The creditor is ..... " . The keeper is entitled to know the party with whom any purported contract was made. This they have failed to do and thus have have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.


4. Punitive/unfair/unreasonable charge

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate 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." In this case, Parking Eye has failed to provide any calculation to show how the £60 figure is arrived at, whether as an actual or pre-estimated loss. It is the Appellant's position that Parking Eye has suffered no loss whatsoever in this case. Even if there was a contract (which is denied), the following matters are relevant:

4(a). Punitive

The parking charge Parking Eye is imposing is punitive and therefore void (i.e. unenforceable). The £60 parking charge is arbitrary and disproportionate to any alleged breach of contract or trespass. This would also apply to any mention of any costs incurred through debt recovery unless it followed a court order.


4(b). Unfair

The £60 charge Parking Eye is imposing is an unfair term (and therefore not binding) under the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations which gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):

‘Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.’

Furthermore, Regulation 5(1) says:

‘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’

And 5(2), which states:

‘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.’




4(c). Unreasonable

The £60 parking charge Parking Eye is imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’

those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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 outcome”.


5. Genuine Loss.

In the unlikely event that Parking Eye do have full rights to make contracts with individual drivers, either on behalf of the landowner, then I would request that Parking Eye show a breakdown of the actual pre-estimate loss in connection with this alleged contravention. The amount claimed must not include the costs of running their business. it should only be the costs they incurred solely due to this contravention. This does not include any costs that they would have had to carry if they had been elsewhere or any operational day to day running costs (for example, by erecting signage and employing administration staff, wages, uniform, rents).

At the car park in question there was no parking charge levied, and the car park is “free”. On the date of the claimed loss it was only at about 10% capacity and there was no physical damage caused. There can have been no loss arising from this incident.

Guys_Dad

I think that's a good one. Good luck!