POPLA appeal - supporting evidence

parking_mad_4

Here is the decision from POPLA. Once again, my thanks to everyone on this site who helped me. :j

The Operator issued parking charge notice number xxxxxxx arising out of the presence at Tower Road, Newquay, of a vehicle with registration mark XXXXXXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered thee 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

At 13:11, on XXXXXXXX, a CCTV automatic number plate recognition (ANPR) system recorded the Appellant’s vehicle entering the Tower Road, Newquay car park.

The Operator’s case is that the Appellant breached the car parking conditions by either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted.

The Appellant made representations stating her case. The Appellant raised a number of points and one of the points was that there was no breach of contract and no genuine pre-estimate of loss. The Appellant states that the Operator must provide a detailed financial appraisal which evidences the genuine pre-estimate of loss or damages in this particular car park for this particular contravention. The Appellant also states that the Operator cannot include their operational day-to-day running costs.

The Appellant has submitted that the parking charge does not reflect the loss caused by the alleged breach. Clearly, it is the Appellant’s case that the parking charge is not compensatory in nature.

The signage produced states that a parking charge notice would be issued for “failure to comply”. This wording seems to indicate that the charge represents damages for a breach of the parking contract. Accordingly, the charge must be a genuine pre-estimate of loss.

The Operator submits that the charge is in fact a genuine pre-estimate of loss, and further submits that the charge is justified commercially and so need not in any case be a genuine pre-estimate of loss.

Firstly, I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the Appellant. It seems that the courts have accepted a third category of liquidated damages, a sum which is commercially justified – in cases where the sum is neither a penalty nor is it strictly a genuine e pre-estimate of loss – where the Operator has substantiated the loss incurred, or the loss that might reasonably be incurred, by the breach. However, I do not accept the Operator’s submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. The Operator has produced a statement which it submits justifies the charge as a pre-estimate of loss; however, I am not minded to accept this justification.

The Operator must show that the charge sought is a genuine estimate of the potential loss caused by the parking breach. The Operator has produced a list of costs; however, a substantial proportion of these appear to be general operational costs, and not losses consequential to the Appellant’s breach.

The aim of damages for breach of contract is to put the parties in the position they would have been in had the contract been performed. Accordingly, the Operator cannot include in its pre-estimate of loss costs which are not in fact contractual losses, but the costs of running its business and which would have been incurred irrespective of the Appellant’s conduct.

Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

I need not decide any other issues.
Accordingly, the appeal is allowed.

Sakib Chowdhury

Assessor

GAJASA3

Found out my appeal was successful. How about you?

kirkbyinfurnesslad_2

JFChils wrote: »

Found out my appeal was successful. How about you?

could you post it up please

4consumerrights

JFChils wrote: »

Found out my appeal was successful. How about you?

Read Parking Mad's post above yours! Appeal allowed.

On POPLA thread also

https://forums.moneysavingexpert.com/discussion/4488337 post #663

Well done on your appeal though JFChils - but as KIFL says can you post up decision - can add to POPLA decisions sticky if you like.