Popla

Coupon-mad

He does not need to write again, he needs to use the POPLA code in time!

I can pay up or appeal to POPLA. A form was enclosed.

NJH1 stop worrying about what happened up till now, and read the link already given which shows you how to win at POPLA.

What date was on the rejection letter with that POPLA form? It runs out after day 28! Please read the linked examples, write a draft POPLA appeal and show it to us.

NJH1

I have 28 days from 21.October which was date of letter. I will construct POPLA appeal thanks.

NJH1

Notice of Grounds of Appeal

Grounds for my appeal are:

1. The Vehicle was not improperly parked

1.1. Appropriate payment was made for the duration of the stay. The machine accepted my fee but failed to issue a ticket. Accordingly, a note confirming the amount paid and the time of payment was left on the vehicle windscreen.

1.2. As advised in my letter to Premier Parking Solutions Ltd (“PPS Ltd”) dated 3 October 2013, PPS would be able to verify payment when accounting the cash machine against the tickets issued. PPS Ltd has failed to acknowledge or respond to this suggestion and POPLA is invited to make the appropriate inferences ad findings from this.

2. The parking charge exceeded the appropriate amount

Unreasonableness

2.1. The sum requested by PPS Ltd is “£60 to reach us by 04/11/2013 or £100 to reach us by 18/11/2013”. The reason provided for this is to avoid incurring additional debt recovery costs.

2.2. The charge 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."

2.3. 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 substance of the term."

2.4. The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

2.5. Accordingly, the sum being claimed is unreasonable.

3. I am not liable for the parking charge

No breach of contract and no genuine pre-estimate of loss

3.1. There is no loss arising from this incident. My fee was accepted by one of the machines at the site. The charge that is levied is punitive and therefore void (i.e. unenforceable) against me.

3.2. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is all the more so for the additional charges which operator states accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by £40by early payment that it is unreasonable to begin with.

Unlawful penalty charge

3.3. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for parking in a car park where the fee was paid, this 'charge' is an attempt at procuring an unlawful charge 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); OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

3.4. PPS submitted that the charge is based upon the cost of enforcing parking restrictions at the site (for example, by erecting signage and employing administrative staff) and the charge was agreed by the landowner and specified on site signage.

3.5. However, this does not represent a loss resulting from any breach of the parking contract. The loss specified by PPS Ltd is the cost of providing parking enforcement at the site. In other words, were no breach to have occurred the cost of parking enforcement would still have been the same.

3.6. PPS do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, PPS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

3.7. I would also request that POPLA check whether PPS has provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and confirm that it specifically enables PPS to pursue parking charges in their own name and through the court system. I contend that any contract is not compliant with the requirements set out in the BPA Code of Practice.

3.8. It is submitted that PPS does not have the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Court of Appeal decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]): The principal issue in this case was to determine 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 ruling of the Court was that "I would hold, therefore, 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."

3.9. In other words, they are not, as the PPS asserts, a contractual term. If they were a contractual term, PPS would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. It is asserted that these requirements have not been met.

3.10. PPS could state the letter as an invoice or request for monies, but chooses to use the wording “PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to notices issued by the Police and Council Wardens.

3.11. On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

3.12. It must therefore be concluded that PPS’ charges are in fact damages, or penalties, for which the PPS must demonstrate actual, or pre-estimated, losses, as set out above.

Coupon-mad

Looks good to me as it has the usual winners in 'no loss' and 'no standing to make contracts with drivers' and 'no contract with landowner shown'.

Nice to see the points written in your own words in the main and grouped under the POPLA headings.

NJH1

"Do NOT respond to a private windscreen ticket (unless you are not the registered keeper and won't get the first letter yourself). ALWAYS wait for the first letter as you have actually lost some appeal grounds by outing yourself as the driver".

I am interested in this helpful point (for reference and to assist others who indicate how susceptible many of us are to this feeling that such scams have to be paid). Why is it an issue to identify oneself as the driver? What appeal grounds have been lost?

Coupon-mad

You will probably be OK relying on 'no loss'* at POPLA anyway (or if not then 'no contract with landowner/no title in the land') but you have lost any point that you could otherwise have used to show 'no keeper liability'. There would have been likely 'non-compliance with POFA 2012' in terms of the Notice to Keeper which you didn't wait to receive. With a small-fry PPC like PPS I would have put money on them sending a late and/or non-complaint Notice to Keeper if you had bided your time.

Next time!




*if the signs suggest 'breach of terms' or 'failure to comply' (rather than a contractually agreed fee to park on those terms).

NJH1

Thanks for advice to date. "Next time", certainly hope not but I have learned a lot!

NJH1

Have received notification of POPLA appeal "on or soon after 10th December".

NJH1

Have now received the operators "evidence" which is a response to my appeal. Is this how it is done, as it feels like they get a right of reply and I don't? They have implied I am making the fact up that their machine took my money and failed to issue a ticket. They reiterate the reasons why machines reject coins which does not imply they are faulty. They ignore the fact they had my money. Can I legitimately make this point to Popla ( my appeal is scheduled for around 10.12)?

Hovite_2

Hold firm - your appeal above will win.