Popla Appeal do I have a chance of winnig it?

Notappcfan

Hey

I wrote up the following Popla appeal and I am wondering if it is likely to be successful. What do you guys think? Thank you in advance for any advise

[FONT=&quot]Dear POPLA adjudicator,

RE: Premier ParkPCN number xxxxxxxx POPLA code xxxxxxxxxx

On .. the .. August Premier Park issued a parking charge notice of £100 because the above vehicle was not displaying a valid dashboard virtual ticket. I appeal on the grounds that I am not liable for the parking charge, as I was not given an opportunity to pay for my parking due to a defective payment system, poor signage on the car park which failed to form a contract, the 'parking charge' not being a genuine pre-estimate of loss and questions over the proprietary interest of Premier Park in the land..[/FONT]
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[FONT=&quot]Payment system did not give the opportunity to register the vehicle and pay for the parking[/FONT]
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[FONT=&quot] The car park on which the ticket has been issued utilizes the cashless ‘Dash’ car parking system that requires a phone call to register a vehicle, before parking payment can be made. After the vehicle was parked, late at night (approximately 22:45) in the car park, ‘Dash’ has been contacted to register the vehicle and pay the parking fee. After two unsuccessful phone calls, it was assumed that the offices were closed given the late hour of the day. This was because the tablet displaying the payment instructions did not specify whether the offices have a 24/7 opening time. They neither provided alternative means to register the vehicle. The belief was that an opportunity would be presented to pay for the parking in the morning, the assumption being, the offices would have a standard 9am opening time. The ticket was however issued before 9am, hence there was no opportunity to pay. ‘Dash’ was contacted regarding this PCN and the problem that was encountered paying, and in their response they did not properly acknowledge the issue. Their response was to contact the ticket issuer. [/FONT]
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[FONT=&quot] Recently the BPA stated: ‘"Clearly 'putting the customer at the heart of your thinking' would suggest that any parking systems and equipment deployed to control entry, exit and payment for parking should be in operation and motorists provided with the means to comply with any requirements for payment. To undertake enforcement action of any kind when this was not the case would be unfair. It is the adjudication services, both statutory and POPLA that would deal with this unfairness should it arise." This underlines the point that the ticket has been unfairly issued, as despite the appellant’s willingness to pay the parking fee, he was not given an opportunity to do so.[/FONT]
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[FONT=&quot]Poor signage that failed to form a contract with the driver[/FONT]
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[FONT=&quot] The tablets displaying the information regarding the PCN and the terms of the contract, one faces at this car park were located in places where a driver has difficulty to see them, especially at night. This goes directly against BPA code of practice. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] The BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''[/FONT][FONT=&quot]The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead[/FONT][FONT=&quot]. The tablet ‘Premier Park’ had put in place to concur with this regulation, was obstructed by an overflowing bin, when the vehicle was being parked. It was also very badly lit, making it impossible for the driver to read. All other signage in the car park was also in badly lit areas, hidden from the most obvious places a driver would look.[/FONT]
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[FONT=&quot] Premier Park claims that there was ‘ample and substantial’ signage in the car park. It is peculiar therefore, that no signage has been placed directly next to the parking payment sign, which would make clear the terms of the contract the company was trying to establish. Premier Park also claims, that they should have been contacted regarding the problem that was experienced with the payment of the parking fee. Surely if they want to be the point of contact to solving problems, Premier Park contact details should be included in the signage dealing with the parking fee payment. At the very least they should provide signage in the close vicinity of the payment instructions, to make a driver aware that Premier Park should be contacted if payment problems are experienced. Not making this clear goes against the BPA Operational Requirements Section 18.1 and 18.2 which states: ‘’In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.’’ [/FONT]
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[FONT=&quot] [/FONT][FONT=&quot]Premier Park had a duty to make the terms of the contract so clear that they cannot be missed. To fail in this respect means that the elements of a contract have not been met. For Premier Park to suggest a breach of contract, they must prove that the appellant has read the terms of the contract and accepted them. Premier Park as the supposed car park manager had the responsibility to ensure that all signs were clearly visible and unobstructed, which they failed to do. The appellant as a result did not see the alleged terms, hence no valid contract was formed. This point is highlighted in the case below.[/FONT]
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[FONT=&quot]In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:[/FONT][FONT=&quot]
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”[/FONT]
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[FONT=&quot]The signage at the car park has been photographed, to show just how badly placed and lit it is.[/FONT]
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[FONT=&quot]'The charge is a penalty and not a genuine pre-estimate of loss'.[/FONT]
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[FONT=&quot]The fee being charged [/FONT][FONT=&quot]contravenes the Unfair Contract Terms Act 1997. Under the Unfair Terms in Consumer Contracts Regulations 1999 a list of terms is presented which may be regarded as unfair and includes 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’.
Also, Regulation 5(1) states: ‘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.’[/FONT][FONT=&quot][/FONT]
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[FONT=&quot]In this case the £100 charge asked for, far exceeds the cost to the landowner who would have charged me £3.80 for the time my car was parked there. The £97.20 difference between the parking charge and the parking charge notice cannot be construed as anything but a punitive penalty. In the appeal Premier Park did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss. For this charge to be justified a full breakdown of the costs Premier Park has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these expenses would have been suffered irrespective of the car being parked at that car park.[/FONT]
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[FONT=&quot]Proprietary Interest[/FONT]
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[FONT=&quot] The appellant does not believe that the operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Premier Park any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Premier Park 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.
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[FONT=&quot] The appellant contends that Premier Park 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 deals with this issue.

The Keeper believes 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 Premier Park. The appellant expects Premier Park to prove that they are not in breach of section 7.1 of the BPA code.

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 Premier Park and the owner/occupier, containing nothing that Premier Park can lawfully use in their own name as a mere agent, that could impact on a third party customer.[/FONT]
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[FONT=&quot]Lastly it must once again be stressed that an attempt was made my to pay the parking ticket, but due to the inability to reach ‘Dash’ via phone and register the vehicle, and the payment signage in the car park not stating alternative means of registration, which was no fault of the appellant, he was unable to do so.[/FONT]
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[FONT=&quot]Due to these reasons the ‘Parking Charge Notice’ should be dismissed.[/FONT]

HappyMJ

It's a long letter...How long did it take to compose? I'd give it to you just based on the effort you have put in. From what I've read here it should take no more than 15 minutes to dispose of PCN's by appealing to POPLA. That would have taken me at least an hour to type....and that's what would put me right off appealing like this.

Guys_Dad

You could simplify it a bit by removing reference to case law.

And biggest omission is the no genuine pre-estimate of loss section. See here https://forums.moneysavingexpert.com/discussion/4739105

Do have a look at some other appeals currently in progress here. eg https://forums.moneysavingexpert.com/discussion/4761573

How much time have you left to make your appeal?

Notappcfan

Hey, I received my rejection from the PPC on Friday so I think I should have 14-28 days. Does my [FONT=&quot]'The charge is a penalty and not a genuine pre-estimate of loss' [/FONT][FONT=&quot]not encompass what was in the link you put up Guys Dad? Any pointers on how to rephrase it, as I did have a look at the link you put up and though I hit those points.Anything else that is wrong.may be missing?
And HappyMJ it took me about 4-5hours with research to write it up. Its not so much about the money, as it seems as a lot of work to dismiss £60, but its the principal of the appeal, as I really don't want to pay a fine which is unfair.
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Coupon-mad

Looks good to me - and I like the case law, personally, but it's not everyone's style. Look at this even longer example I wrote for someone with even more case law!

https://forums.moneysavingexpert.com/discussion/4695227

You have covered the points that are likely to win this, IMHO. Just do not try to fit it in the appeal box online if submitting it on the POPLA website. Attach it as a PDF or post it (with all pages showing the 10 digit POPLA code).

kirkbyinfurnesslad_2

Far to long for my liking

Should very simple and to the point. Two or three paragraphs is plenty

A winner everytime is lack of loss/pre estimate of loss etc

Notappcfan

Thank you all so much for all the advice, it is brilliant. I was wondering, if it is not too much of a ask, if anyone would be willing to read through my pdf version of the appeal where I have photographic evidence attached of my claims, to see if I narrated them well, and if the photographs bring my point home.

Guys_Dad

I posted earlier with some comments, but somehow it has disappeared.

Basically, what I said was that too many words may obscure the real points. I missed the detail of the no pre-estimate of costs bit as my head was swimming by the time I got to it.

The adjudicator may also miss bits, and there is one appeal lost where the adjudicator seems to have missed one of our main appeal points.

I don't think the case law is necessary, except that the adjudicator sometimes quotes VCS -v- HMRC. But that's only my opinion.

I would go for shorter, sharper bullet point type appeal points with the real winner points standing out in bold.

I like your layout with numbered sections.

kirkbyinfurnesslad_2

Notappcfan wrote: »

Thank you all so much for all the advice, it is brilliant. I was wondering, if it is not too much of a ask, if anyone would be willing to read through my pdf version of the appeal where I have photographic evidence attached of my claims, to see if I narrated them well, and if the photographs bring my point home.

Right you are really wasting your time with photos. You DONT need them!!

All you need to concentrate to win at popla with this lot are raising the issue of no contract and that the charge is not a genuine pre estimate of loss

As guys dad said and ive said many times to many people short and sweet. get to the point, dont waffle. Its not needed.

I get a lot of popla appeal emails and my appeal is never any more then two concise paragraphs.

Since Oct 2012 ive only lost one Popla appeal that ive done for myself and countless other people and that loss was one of the very first (ukcps), Haswell knew who i was, so when i lost i said see you in court, but he never gave me the pleasure lol

Notappcfan

Thank you once again for the comments, your help is invaluable. I have taken the comments on board and made it a lot shorter, but it still may be too long. As you probably guessed I am not very experienced at dealing with these things hehe. What do you think of my revised appeal? I am worried if I cut more, I will not be explaining the situation. kirbyinfurnesslad so no sending of photographs? Would that not support my point about the signage?

[FONT=&quot]Dear POPLA assessor,

RE: Premier Park PCN number POPLA code

On the 10th of August Premier Park issued a parking charge notice of £100 because the above vehicle was not displaying a valid dashboard virtual ticket. I appeal on the grounds that I am not liable for the parking charge, as I was not given an opportunity to pay for my parking due to a defective payment system, poor signage on the car park which failed to form a contract, the 'parking charge' not being a genuine pre-estimate of loss and questions over the proprietary interest of Premier Park in the land..[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Payment system did not give the opportunity to register the vehicle and pay for the parking[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] Recently the BPA stated: ‘"Clearly 'putting the customer at the heart of your thinking' would suggest that any parking systems and equipment deployed to control entry, exit and payment for parking should be in operation and motorists provided with the means to comply with any requirements for payment. To undertake enforcement action of any kind when this was not the case would be unfair. It is the adjudication services, both statutory and POPLA that would deal with this unfairness should it arise." After the vehicle was parked, late at night (approximately 22:45) in the car park, ‘Dash’ has been contacted to register the vehicle and pay the parking fee via phone as required. After two unsuccessful phone calls, it was assumed that the offices were closed given the late hour of the day. The tablet displaying the payment instructions did not specify whether the Dash offices had a 24/7 opening time and no alternative means of registration were provided. The belief was that an opportunity would be presented to pay for the parking in the morning, the assumption being, the offices would have a standard 9am opening time. The ticket was however issued before 9am, hence there was no opportunity to pay. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Poor signage that failed to form a contract with the driver[/FONT][FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] The BPA Code of Practice at Appendix B which sets out strict requirements for entrance signage, including ''[/FONT][FONT=&quot]The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead[/FONT][FONT=&quot]. The tablet ‘Premier Park’ had put in place to concur with this regulation, obstructed by an overflowing bin, when the vehicle was being parked. It was also very badly lit, making it impossible for the driver to see, let alone read it. All other signage in the car park was also in badly lit areas, hidden from the most obvious places a driver would look. Not displaying their signs in obvious locations where a driver cannot miss them, goes against the BPA Operational Requirements Section 18.1 and 18.2 which states: ‘’In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are.’’ [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT][FONT=&quot]Premier Park had a duty to make the terms of the contract so clear that they cannot be missed. To fail in this respect means that the elements of a contract have not been met. For Premier Park to suggest a breach of contract, they must prove that the appellant has read the terms of the contract and accepted them. Premier Park as the supposed car park manager had the responsibility to ensure that all signs were clearly visible and unobstructed, which they failed to do. The appellant as a result did not see the alleged terms, hence no valid contract was formed. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]'The charge is a penalty and not a genuine pre-estimate of loss'.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The £100 charge asked for, far exceeds the cost to the landowner who would have charged me £3.80 for the time my car was parked there. The £97.20 difference between the parking charge and the parking charge notice cannot be construed as anything but a punitive penalty. In the appeal Premier Park did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss. For this charge to be justified a full breakdown of the costs Premier Park has suffered as a result of the car being parked at the car park is required and should add up to £100. Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these expenses would have been suffered irrespective of the car being parked at that car park.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Proprietary Interest[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] The appellant does not believe that the operator has demonstrated a proprietary interest in the land, because they have no legal possession which would give Premier Park any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Premier Park 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

The appellant believes 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 Premier Park. The appellant expects Premier Park to prove that they are not in breach of section 7.1 of the BPA code.

[/FONT]
[FONT=&quot] Lastly it must once again be stressed that an attempt was made to pay the parking ticket. Due to the inability to reach ‘Dash’ via phone and register the vehicle, and the payment signage in the car park not stating alternative means of registration, he was unable to do so.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Due to these reasons the ‘Parking Charge Notice’ should be politely dismissed.[/FONT]

Guys_Dad

I like this one better.

The unsuccessful phone calls - I assume they were not answered? If so, say so.

And I would demand that the PPC provide POPLA with a Service Level Agreement or similar that showed if Dash were, in fact, supposed to be 24/7.