POPLA draft - would appreciate any opinions

hockeyben

This is the first draft of my POPLA appeal. Pretty much all picked up from here. It's an Excel one at the Peel Centre when no ticket was purchased.

Firstly, I'm not clear which of the 4 'Why you are appealing?' boxes actually applies here, tbh. 'The parking charge exceeded the appropriate amount; seems to be the most applicable but...

Anyway, here is my draft. I'd be really grateful for any tips re any obvious errors I'm making/stuff I should include etc. Thanks in advance

"Preliminary information here

I want to appeal this charge and have it cancelled. Here are the reasons that I think you should cancel it:


1. Excel’s legal capacity to enforce/issue Parking Charge Notices.


In their correspondence with me, Excel have not produced any evidence to show that they have any proprietary interest in the Pxxx Cxxxxxx car park in Sxxxxxxxx. Nor have they provided any evidence that they are lawfully entitled to demand money from a driver or keeper. As it appears that they do not own the land, nor have any interest or assignment of title of the land in question, it is assumed that they are merely agents for the owner or legal occupier. I contend, therefore, that they do not have the necessary legal capacity to charge the driver of a vehicle for using the car park.


So, I require that Excel provide a full, up-to date, signed and dated contract or agreement with the landowner . A signed witness statement stating that someone has seen a contract is not sufficient. The contract must state that Excel are entitled to pursue these matters through the issue of PCNs and through the courts. This needs to be an actual copy and not simply a document which claims that such a contract or agreement exists.


2. Trespass


Without a contract, the most appropriate offence would be of civil trespass. If this was the case, the remedy would be to award damages to Excel. Given that there was no damage to the car park, the car park was not full when my car entered or left and Excel do not own the car park, I suggest that there was no loss to Excel at all.


3. Unlawful Penalty Charge


Excel alleges a breach of contract. However, without any demonstrable loss or damage, it can only remain a fact that this 'charge' is an attempt to dress up an unlawful penalty to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008) OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .


On this basis, this 'charge' fails to meet the standards set out in paragraph 19 of the British Parking Association’s Code of Practice. It also fails to comply with the CPUTR 2008, the UTCCR 1999, the Equality Act 2010 and basic contract law.


4. The charge is a penalty and not a genuine pre-estimate of loss


The PCN records the duration of stay at xx minutes, whilst the tariff set by the operator for a 1-2 hour stay is just £1. Excel is asking for a charge of £100. This far exceeds the cost to the landowner for the time my car was parked there. The charge cannot be construed as anything but a punitive penalty.


Following my appeal directly to Excel, they did not address this issue. They have not stated why they feel a £100 charge is an appropriate pre-estimate of loss. To justify this charge, I require that Excel supply a full breakdown of the costs they have suffered as a result of the car being parked at the car park. This breakdown must add up to £100. Normal expenditure that Excel incurs to carry on their business - their operational day-to-day running costs (e.g. provision of parking, parking enforcement, signage erection, salaries and office rent) must not be included in the breakdown; these are operational costs which Excel would suffer irrespective of the car being parked at that car park.


I refer POPLA to the case of Vehicle Control Services Ltd vs Mr R Ibbotson (16th May 2012) which found that general business costs cannot constitute a loss. This has also has been held in a number of very recent compelling, and comparable, decisions against Excel when POPLA has considered similar cases.


Therefore, this £100 charge does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have happened, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication. The amount of the “penalty” imposed is completely disproportionate to any alleged “loss” by Excel. It is, therefore, punitive and contravenes the Unfair Contract Terms Act 1997.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. As such, the charge that was levied is punitive and therefore void (i.e. unenforceable) against me.


I also refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]). This case determined the actual nature of Private Parking Charges. It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The Court ruling was "...that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice. This provides a means of payment at the point of supply, and a means to account to HMRC for the VAT element of the charge. No VAT is itemised on this PCN. It must, therefore, be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.


5. ANPR section of the BPA Code of Practice/Use of ANPR and data collection


I also contend that Excel have failed to show me any evidence that the cameras used at this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR). I require POPLA to consider that particular section of the Code in its entirety, and decide whether Excel has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.


6. No contract with the driver


The Operator refers in their correspondence to “contractually agreed Terms and Conditions”, however, I assert that there is no contract between Excel Parking Ltd and the driver.

I challenge the Operator to provide strict and robust proof that a contract existed between Excel Parking Ltd and the driver on the day in question, which meets all the legal requirements of contract formation, such as a meeting of minds, agreement, certainty of terms etc. If not all of these requirements were satisfied, any contract would be deemed “unfair” in the Unfair Terms in Consumer Contracts Regulations 1999.



7. Unfair terms


Finally, I request that POPLA consider that the charge that was levied is an “unfair term” (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of 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".


Schedule 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"

Schedule 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 substance of the term"."

I present this to POPLA and await your decision

Guys_Dad

Seems pretty good to me. Everything there except kitchen sink and well laid out.

Personally I have never fully understood the last point in this context and can't see it winning as a stand alone, so therefore see it as superfluous. But just a matter of taste and style.

On your GPEOL point, you need to demand they show to POPLA what is in their pre estimate of loss as unless they have already done this, you are only guessing at what they are claiming.

But still one of the best initial drafts and shows you did your research and put the effort in. Appreciated by the regulars you may be sure.

Oh, you are appealing under point 4 and 1, I would contend. The examples in all of the 4 points are just that - examples, as you will know that they are preceded by eg and not ie.

Coupon-mad

That will do the job! :T

hockeyben

Thanks both.

I'll do a slight rework on the GPEOL point and then send it off.

I presume if I do it online, I don't need to send/attach any documents???

Guys_Dad

I always recommend doing it on line and post as well, with a free cert of posting.

Remember to put the POPLA reference on every page you send by post.

hockeyben

Will do, thanks

I'll post the outcome as soon as I know

Thanks again for all the help from here.

hockeyben

I won my appeal! :j All thanks to this you lot on this thread and this forum in general. I really wouldn't have had a clue about how to challenge these things effectively without this site. Thanks so much.

I'll post up the decision as soon as I can. Quite strange in that the assessor seemed to just look at the points I'd made in my initial appeal to Excel- the soft appeal. The decision letter almost reads as though I didn't send a 3 page letter at all.

Umkomaas

Well done hockeyben. This has been one of the finest examples of someone doing all the initial legwork themselves via researching the threads and posts on here and then approaching the forum for final fine-tuning.

Brilliant result - well pleased for you.

kirkbyinfurnesslad_2

Well done ben and well done again on doing your own leg work!!