Met parking services - advice please

bod1467

Just send it 1st class and get (free) proof of posting. It is deemed received 2 days after posting. (Interpretations Act 1978).

p5x

It's POPLA time

I see they've tried to bat off some of the issues I raised in their letters. Should this change my POPLA appeal at all?

POPLA appeal re MET Parking ticket number ???

Alleged infringement

I am the Registered Keeper of the vehicle related to the parking charge notice number ????.

I have researched the matter, taken legal advice and would like to point out the following points as my appeal against said charge:

A) Genuine pre-estimate of loss
Punitive charges and unfair terms
C) No contractual authority to levy charges
D) Unclear, inadequate and non-compliant signage
E) Non-compliant “Notice to Keeper” & lack of evidence provided of alleged infringement
F) Misleading Liability Notice

A) Genuine pre-estimate of loss
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."

There was no parking charge levied. On the date of the claimed loss it was not at full capacity. There can have been no loss arising from this incident. Neither can MET Parking lawfully include their operational day-to-day running costs in any 'loss' claimed. 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. In this case, MET Parking has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss. Again, it is the Appellant's position that MET Parking has suffered no loss for the duration that the car was parked.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £50 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


Punitive charges and unfair terms

The charges are unfair terms (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."

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”.

I believe that the presented charge is disproportionate to the loss incurred, contravening the Unfair Contract Terms Act 1997.

C) No contractual authority to levy charges

MET Parking 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, MET Parking have not provided 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, I do not believe that the Operator 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.

I would request that POPLA please check whether MET Parking 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 check that it specifically enables this Operator to pursue parking charges in their own name and through the court system and whether that contract is compliant with the requirements set out in the BPA Code of Practice

D) Unclear, inadequate and non-compliant signage

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance to the shop.

I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

E) Non-compliant “Notice to Keeper” & lack of evidence provided of alleged infringement

Schedule 4 paragraphs 8 and 9 of the Protection of Freedoms Act 2012 stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

Failing to include specific identification as to who ‘the Creditor’ is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to MET Parking, there is no specific identification of the Creditor who may, in law, be MET Parking or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.
In addition, the Notice to Keeper does not make clear what the alleged contravention was, how this was determined and furthermore it fails to provide sufficient evidence to decide whether the alleged contravention is valid.

In a previous ruling, POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.

F) Misleading Liability Notice

It should also be noted that the registered keeper received an erroneous Liability Notice only 12 days after the Notice to Keeper, claiming that the period for submitting a formal appeal had expired, despite it being well within the 28 days to appeal the Notice to Keeper.

[FONT=&quot]On the basis of the above points I have raised, I respectfully request that this appeal be allowed. In the event that POPLA is minded not to grant the appeal then, because the Respondent failed to provide any evidence of its entitlement to recover parking charges, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum.[/FONT]

Any amendments I should make?

Coupon-mad

If that sheet in image 3 was included with the NTK then they have identified the creditor so you would need to reduce the points in your point E.

I think you should make something of what Guys Dad said earlier:

I would appeal to the PPC saying that the driver disputes leaving the site
and requires a map of the site and evidence of him doing so. Furthermore, if one of their operatives suspected that a driver was going to leave site, thereby causing the PPC to incur losses, then under English law it was his duty to inform the driver in order to mitigate these losses.

So you need a point about that, maybe:

No clear map of the site boundary - no contract with driver formed
It seems that MET are alleging the driver went off-site but have supplied no evidence of this, nor explained what constitutes 'off-site' and what their 'site survey' involved. And it has not been established whether they checked if, perhaps, a passenger was on site all along, and how this observation was made, by whom and how it was recorded as evidence. I put MET to strict proof of this 'site survey' and photographic evidence of neither a driver nor passenger of this car being on site; such evidence to include photographs of the contravention and a site map and a picture of the signage that would have communicated to the driver the defined boundary of the site they are alleged to have left. If no such sign nor evidence exists then I contend that the driver could not have known where the car park site boundary began and ended and in the absence of evidence I deny that there was any contravention. I say there was no contract formed with the driver to pay a charge in 'exchange' for going off site; there was no consideration, offer nor acceptance and no site boundary defined.

The burden of proof shifts to MET to prove otherwise and to explain why their attendant (presumably) watched a driver walk towards the edge of an undefined boundary, yet made no attempt to stop/warn the driver nor even ascertain if a passenger had already been dropped at the door of the premises. MET have not shown how their 'site survey' established where the occupants of the car were. The attendant also had a legal duty under contract law, to mitigate any loss. In VCS v Ibbotson, Case No 1SE09849 16.5.2012:

http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231)

District Judge McIlwaine stated 'you say he left the premises...where does the premises start and where does the premises finish?...there is a duty to mitigate the loss.' In this case now under POPLA appeal, I contend that MET have neither demonstrated any evidence that there was a breach nor shown that their operative took any steps to mitigate any loss.

p5x

thanks, i've added that bit in as well now. I think i'm going to leave the bit about failing to identify the creditor on the NTK because that sheet didn't arrive with the original NTK (only with the rejected appeal letter they sent later).

Coupon-mad

I agree then, as it was NOT in the NTK, the NTK was not complaint.

p5x

How accurate are POPLA with the hearing date they give?

My case should have been heard about 3 weeks ago but I've not heard anything back from POPLA.

Should I email them or is this normal?

Redx

p5x wrote: »

How accurate are POPLA with the hearing date they give?

My case should have been heard about 3 weeks ago but I've not heard anything back from POPLA.

Should I email them or is this normal?

my relative didnt hear about their appeal so I advised them to email popla and found out it had been upheld weeks before the due date !!

so I would email them

Coupon-mad

p5x wrote: »

How accurate are POPLA with the hearing date they give?

My case should have been heard about 3 weeks ago but I've not heard anything back from POPLA.

Should I email them or is this normal?

If you have not been sent the PPC's evidence yet then email POPLA and say so, and ask if they've got their copy because you want to have the chance to look at it, as you are entitled to. Do not phone them. Email them.

p5x

By sheer coincidence (I think they must be reading this), I received the POPLA decision today:

It is the Appellant’s case that the parking charge notice was issued incorrectly.

The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.

Accordingly I have no option but to allow the appeal.

:j

Thanks again to everyone for their help with this.