ParkingEye still will not send POPLA code

John_Fletcher

Finally got my POPLA code!!

Is there a template type document for me to appeal with?

What is my best defence do you think?

The driver entered the car park (it was a busy August day) didn't actually park the car was just waiting / driving round the car park hoping someone would leave. (I bet alot of people got these letters that day because everyone was doing the same) then I left after not getting a space. Total time was around the half an hour mark.

zzzLazyDaisy

Well done for persisting and getting the magic bullet that will kill this case.

There is no template as you must write your appeal in relation to your own case. However - as strange as it may sound - what happened on the day and mitigating circumstances are generally irrelevant.

Have a look at the POPLA decisions thread start here and work backwards (but don't go back more than three or four months - you will soon see a pattern and the points that win at POPLA (hint - look for 'genuine pre-estimate of loss' 'no contract' and 'signage').

Prepare your draft appeal and post it here for checking. PLEASE DO NOT go it alone - the regulars here have 100% success rate at POPLA, so it makes sense to make use of their expertise!

ALSO - Do you have any proof of purchase in the cafe or surf shop, or any of the retail outlets (receipts, or card statement maybe?) that might show you were a genuine customer?

Daisy

Guys_Dad

Try modifying this recent one (post #70)
https://forums.moneysavingexpert.com/discussion/4717353

But please make it sufficiently different and tailored to put your own slant on it.

Also, make more of the pre-estimate of loss point. State that you require the PPC to specify what is in their pre-estimate and state that the figure must be those costs that are directly attributable to your car being present at the time and place rather than at home and these can not include operational costs such as salaries, signs, uniforms, office costs etc.

John_Fletcher

Does this look any good??

It's pretty much copied but my own bits have been put in red.

Also any ideas on ending this letter?

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:
On arrival at the Fistral beach car park the driver states that they could see it was a pay and display car park although the detail on the signs was simply not visible / readable from the car whilst driving in. They believe that the signage at that car park is too high, not clearly visible or fully readable to the driver at the entrance.
The driver also states that the car park was extremely busy that day and that a lot of cars were looking for spaces. The driver never actually parked the car as they we driving around looking for an available space.
• No Contract

I believe there was no contract made 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.

• 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 is 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.


• 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”.

• 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.

ParkingEye have already stated in to me in previous correspondence that there “parking charge amount is fair and reasonable” and that they have “calculated this sum as a genuine pre estimate of Loss” these charges include
• Erection and maintenance of site signage.
• Installation, monitoring and maintenance of AMPR systems.
• Employment of office based administrative staff
• Membership and other fees required to manage the business effectively including those paid to the BPA, DVLA & ICO
• General costs including stationary, postage etc
I believe that these charges are operational costs and should not be used as a pre-estimate of loss for this case.

halibut2209

Not much red there

John_Fletcher

Halibut2209 - I know I'm finding it hard :-(

John_Fletcher

halibut2209 wrote: »

Not much red there

I've just twigged :rotfl:

John_Fletcher

Ive just come across a POPLA Appeal generator do you think it is worth taking anything from this and adapting it??

http://pepipoo.3owl.com/pagan/index.html

Coupon-mad

It's useful, a clever idea and pepipoo is a great forum - but with that generated POPLA appeal you'd still have to check all the wording & remove bits that don't relate to your case.

Either version would do as long as you 'make it your own' as Louis Walsh would say! I also think in your case you should tell POPLA the delaying tactics used by the Operator in not sending you a POPLA code in a timely manner.

John_Fletcher

Appeal submitted to POPLA

Response recieved - Your appeal will be considered on or soon after 5 December 2013.

Fingers crossed