POPLA appeal draft

Gouryella

Hi,
Basically driver overstayed 19 minutes in a free car park. Appeal refused and POPLA code sent. Tried to formulate one from what I've researched on here which I've put below and was wondering if anyone can improve/correct it before I send it. Thank you.

G24 PCN Number XXXX
POPLA Code XXXXX
Vehicle Registration XXXXXX

On the 10th of September 2013 G24 issued this £100 parking charge for overstaying 19 minutes in a car park with 90 minutes free parking.

The basis of appeal is as follows:

1. NO GENUINE PRE-ESTIMATE OF LOSS

The amount of the charge (£100) is disproportionate to the loss incurred by G24 Ltd and is punitive, contravening the Unfair Terms Act 1997. The Appellant also considers the charge to be a penalty because G24 have alleged a breach of terms and conditions and yet have not quantified their alleged loss which cannot include business running costs (as found in Vehicle Control Services vs Mr R Ibbotson 16th of May 2012) only the costs resulting in overstaying 19 minutes in a free car park.The £100 charge is an unfair term and therefore not binding under the Unfair Terms In Consumer Contracts Regulations 1999. Schedule 2 gives and indicative but not exhaustive list of terms which may be regarded as unfair.

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'

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'

Regulation 5 (2) says:

'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'

Private parking tickets unrelated to any genuine pre-estimate of loss are unenforceable penalties.

The Appellant requests G24 Ltd to provide POPLA a full breakdown of this specific £100 charge and that the POPLA adjudicator scrutinises it.

2. NO CONTRACT WITH THE LANDOWNER AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS

G24 Ltd do not own this car park and are acting merely as agents for the owner/occupier. G24 Ltd have not provided the Appellant with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of the title of the land in question. The Appellant does not believe G24 Ltd has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract (as evidenced in the Higher Court findings in VCS vs HMRC 2012). The Appellant puts G24 Ltd to strict proof that they have the necessary authorisation at this location. This would be in the form of a signed and dated contract with the landowner/occupier specifically evidencing the ability of G24 Ltd to pursue parking charges to the courts. The Appellant requests this to be scrutinised by the POPLA adjudicator.

3. UNCLEAR AND NON COMPLIANT SIGNAGE

The Appellant believes the signs and parking terms were unclear and requests G24 Ltd show POPLA their evidence and signage map/photos specifically showing the height of the signs and where they are at the entrance, whether a driver in a car can see and read them when deciding to drive in. The Appellant believes the sign at the entrance is too high, too small and on the right hand side of the entrance and therefore easy to miss. It does not state any terms and conditions nor the amount of free parking. The signs in the car park are also too high and too small and it’s not reasonable that any driver of any age or height can read and understand them. The Appellant believes the signs are unclear and non compliant.

Coupon-mad

Looks OK to me as you have the main winning points!

Once you have sent it off, and cost G24 money in producing evidence, then also send a complaint to their client in the car park. Works best if the client is a Supermarket where you can show you were shopping, or similar situation such as a cinema, hotel, etc. and always good to address your complaint about this fake parking ticket harassment to the CEO if a national chain was involved.

Was there any Equality Act covered reason for the 'overstay'? Disablility, elderly or pregnant passenger, or anyone with any medical condition which was longterm and would have the effect of slowing them down?

Guys_Dad

The pre-estimate of loss is the current silver bullet and as such I would always spell that point out specifically and fully in case of a new adjudicator. So, I would include a version of this which is actually composed with 90% of a recent POPLA adjudicator's own words on a winning appeal !!

"The amount claimed by G24 is liquidated damages and, as such, the Operator may only charge a genuine pre-estimate of loss that arise from the alleged contravention.

The Operator charges include a basket of costs, including the cost of erecting site signage and the cost of membership of the BPA, DVLA charges, wages and uniforms which are Operational costs of running the business.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. However, some of the costs referred to do not represent a loss resulting from the alleged breach.

For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same.

I contend, therefore, that you should allow the appeal on this ground."

Gouryella

Thanks for the reply. I do not want to give too much info as they maybe watching and I'm paranoid. Briefly what as happened is as follows.

Elderly relative overstayed in the free car park. Did not see entrance sign and could not read the others in the car park as they are only 5 feet tall and signs must be at least 2 feet higher and not having 20/20 vision just couldn't read them.

Tried a hard appeal which was rejected and popla code sent. In the meanwhile I tried to find the owners of car park which I believed was Tesco even though there's no tesco there. Fired off some emails and although received an initial reply saying they would look into it I've heared nothing.

So finally decided to draft a popla appeal based on the no genuine pre-estimate of loss. I'm pretty useless at this kind of thing so read all the appeals on here and tried to adapt it for this situation hoping that I've not missed anything or said anything incorrectly. Just wondering wether to add a few more court decisions to support the appeal or whether that wouldn't really make any difference.

Thank you also Guys Dad for that.

Guys_Dad

That should do it. POPLA have no record of using precedents, even ones from other POPLA adjudicators.

G24 will know you have had forum help and will weigh up whether or not to waste £27 as they will also be poring over POPLA decisions.

Parking Prankster has gone even more minimalist and has recommended just the following

Dear POPLA,

I wish to appeal the charge. It is a charge for breach of contract and therefore must be a true pre-estimate of loss. ParkingEye have not produced a breakdown showing that the charge is a true pre-estimate of loss. In line with many other POPLA decisions I trust that this appeal will be upheld.


Now I am not going that far, but in essence, that is about it!

kirkbyinfurnesslad_2

Guys dad i like that from PP Thats how i think it should be , simple and straight to the point with no waffle, although your previous one is nice and succinct to

Gouryella

Anybody know how to send the appeal as a pdf? I'm sure I read somewhere on here you could do it but can't find how.

Coupon-mad

Gouryella wrote: »

Thanks for the reply. I do not want to give too much info as they maybe watching and I'm paranoid. Briefly what as happened is as follows.

Elderly relative overstayed in the free car park. Did not see entrance sign and could not read the others in the car park as they are only 5 feet tall and signs must be at least 2 feet higher and not having 20/20 vision just couldn't read them.

Tried a hard appeal which was rejected and popla code sent. In the meanwhile I tried to find the owners of car park which I believed was Tesco even though there's no tesco there. Fired off some emails and although received an initial reply saying they would look into it I've heared nothing.

So finally decided to draft a popla appeal based on the no genuine pre-estimate of loss. I'm pretty useless at this kind of thing so read all the appeals on here and tried to adapt it for this situation hoping that I've not missed anything or said anything incorrectly. Just wondering wether to add a few more court decisions to support the appeal or whether that wouldn't really make any difference.

Thank you also Guys Dad for that.

This thread may help?

http://forums.pepipoo.com/index.php?showtopic=82062&st=20&start=20

Mentions two things:

- Tesco's estates are sometimes managed by Colliers, who when PUSHED, cancelled that one even though in that case PE had issued a small claim. Updated today.

- Your elderly relative is covered by the Equality Act 2010 if he would have been slower to go about his shopping than most people. Plenty of info on that thread although from that poster's point of view it was a disability issue (which would apply to anyone with any relevant long-term medical condition).

Gouryella

Thanks for that. Have already sent in the appeal now but will investigate the Tesco/landowner angle some more and badger them again.

Gouryella

Well I received an email back from London Councils after doing the online appeal with all the details of my appeal. The whole appeal was in that email so I assume that means they have received the whole appeal and nothing was cut off?

Coupon-mad

Yep, if the whole appeal showed in their reply acknowledgement then you can be sure it's safely with them.