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POPLA appeal final draft
loulix45
Posts: 55 Forumite
Hello all, well after much brain ache yesterday and with more than a little help from emserobbo, I've finally come up with this hopefully final draft. If any of you good people think it needs tweaking before I send it I would be more than happy to take on board your advice! Thank you in advance for taking a look.
I would like to appeal this notice on the following grounds
1 No breach of contract and no genuine pre-estimate of loss
2 Lack of contract
3 Unlawful Penalty Charge
4 Failure to comply with the Protection of Freedoms Act 2012, Schedule 4, paragraph 9.4
5 Entering, Parking and Exiting with ANPR
1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF COST
The parking charge of £85.00 is punitive and unreasonable. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge.
The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. ParkingEye Ltd claims that its charges are in line with the BPA Ltd Code of Practice (CoP). Whilst the BPA Ltd CoP states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.
19.6 If you’re parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by the Office of Fair Trading.”
The respondent, ParkingEye Ltd, also claims that its charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park. I require the Respondent to provide a detailed breakdown of how the amount of the charge was calculated. It is not sufficient to simply list the names of previous cases without applying them to this case. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.
2. CONTRACT WITH LANDOWNER – NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCEMENT CHARGES
The Respondent may have the necessary contractual authority from the landowner to pursue this parking charge.
The Respondent has not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver.
Accordingly, I put the Respondent to strict proof (to both POPLA and myself) that they provide a full copy of the actual contemporaneous, signed & dated contract with the landowner of the car park.
3. UNLAWFUL PENALTY CHARGE.
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting 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), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty.
4. FAILURE TO COMPLY WITH THE PROTECTION OF FREEDOMS ACT 2012, SCHEDULE 4, PARAGRAPH 9.5
The Respondent is in breach of Schedule 4 paragraphs 8(5) or 9(5), Protection of Freedoms Act 2012 which specify the time limits for serving a Notice to Keeper.
The Respondent alleges that, on xx-xx-2013, the driver of a vehicle registration number xxxx xxx, of which I am the Registered Keeper, was parked in breach of the terms and conditions and as such a Parking Charge is due. A Notice to Keeper (NTK) with the identity xxxxxx/xxxxxx was received by the Keeper on xx/xx/2013 some 17 days after the event. Schedule 4, paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.
A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used) Not later than 14 days after the vehicle was parked
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
As the NtK is not compliant with POFA 2012, the operator cannot charge the keeper, only the driver. As the keeper of the vehicle, I decline, as is my right, to name the driver(s). As the operator has not named the driver or provided any proof who the driver is, they cannot pursue this charge.
5. ENTERING, PARKING AND EXITING WITH ANPR.
The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions.
The Respondent uses ANPR camera’s at the entrance/exit of the retail park. The cameras only record the time that a vehicle enters the car park and when it leaves, they do not record the actual parking event or the point at which the contract to park is entered into. There are five separate actions involved here that relate to the parking event.
Driving into the car park. (Entry time recorded on ANPR).
2. Parking the car in an empty parking space.
3. Reading the terms and conditions of parking offered at the car park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the car park. (Exit time recorded on ANPR).
The BPA Ltd Code of Practice requires that parking operators can only rely on ANPR evidence if it does so in a reasonable, consistent and transparent manner. Thus the Respondent has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then eventually to leave.
The Respondent’s claim for a parking charge for an alleged overstay based solely of the entry and exit times recorded by ANPR cameras is therefore fatally flawed and cannot be relied upon, on a balance of probabilities, to prove its case.
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.
I respectfully request that this appeal be allowed.
Not sure if I've worded the paragraph underlined in section 2 right either!
I would like to appeal this notice on the following grounds
1 No breach of contract and no genuine pre-estimate of loss
2 Lack of contract
3 Unlawful Penalty Charge
4 Failure to comply with the Protection of Freedoms Act 2012, Schedule 4, paragraph 9.4
5 Entering, Parking and Exiting with ANPR
1. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF COST
The parking charge of £85.00 is punitive and unreasonable. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge.
The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. ParkingEye Ltd claims that its charges are in line with the BPA Ltd Code of Practice (CoP). Whilst the BPA Ltd CoP states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.
19.6 If you’re parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by the Office of Fair Trading.”
The respondent, ParkingEye Ltd, also claims that its charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park. I require the Respondent to provide a detailed breakdown of how the amount of the charge was calculated. It is not sufficient to simply list the names of previous cases without applying them to this case. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.
2. CONTRACT WITH LANDOWNER – NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCEMENT CHARGES
The Respondent may have the necessary contractual authority from the landowner to pursue this parking charge.
The Respondent has not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver.
Accordingly, I put the Respondent to strict proof (to both POPLA and myself) that they provide a full copy of the actual contemporaneous, signed & dated contract with the landowner of the car park.
3. UNLAWFUL PENALTY CHARGE.
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting 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), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty.
4. FAILURE TO COMPLY WITH THE PROTECTION OF FREEDOMS ACT 2012, SCHEDULE 4, PARAGRAPH 9.5
The Respondent is in breach of Schedule 4 paragraphs 8(5) or 9(5), Protection of Freedoms Act 2012 which specify the time limits for serving a Notice to Keeper.
The Respondent alleges that, on xx-xx-2013, the driver of a vehicle registration number xxxx xxx, of which I am the Registered Keeper, was parked in breach of the terms and conditions and as such a Parking Charge is due. A Notice to Keeper (NTK) with the identity xxxxxx/xxxxxx was received by the Keeper on xx/xx/2013 some 17 days after the event. Schedule 4, paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. Schedule 4 paragraphs 8(5) or 9(5) specify the time limits for serving a Notice to Keeper. If this is not complied with then the registered keeper cannot be held to account for the alleged debt of the driver.
A Notice to Keeper can be served by ordinary post and the Protection of Freedoms Act requires that the Notice, to be valid, must be delivered either
1. (Where a notice to driver (parking ticket) has been served) Not earlier than 28 days after, nor more than 56 days after, the service of that notice to driver; or
2. (Where no notice to driver has been served (e.g ANPR is used) Not later than 14 days after the vehicle was parked
A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.
As the NtK is not compliant with POFA 2012, the operator cannot charge the keeper, only the driver. As the keeper of the vehicle, I decline, as is my right, to name the driver(s). As the operator has not named the driver or provided any proof who the driver is, they cannot pursue this charge.
5. ENTERING, PARKING AND EXITING WITH ANPR.
The Respondent has produced insufficient evidence that my car was parked in breach of the stated terms and conditions.
The Respondent uses ANPR camera’s at the entrance/exit of the retail park. The cameras only record the time that a vehicle enters the car park and when it leaves, they do not record the actual parking event or the point at which the contract to park is entered into. There are five separate actions involved here that relate to the parking event.
Driving into the car park. (Entry time recorded on ANPR).
2. Parking the car in an empty parking space.
3. Reading the terms and conditions of parking offered at the car park.
4. Acceptance of those terms and conditions by remaining at the car park.
5. Driving out of the parking space.
6. Driving out of the car park. (Exit time recorded on ANPR).
The BPA Ltd Code of Practice requires that parking operators can only rely on ANPR evidence if it does so in a reasonable, consistent and transparent manner. Thus the Respondent has failed to recognise that it takes time to get in, find a space, consider the terms and conditions and then eventually to leave.
The Respondent’s claim for a parking charge for an alleged overstay based solely of the entry and exit times recorded by ANPR cameras is therefore fatally flawed and cannot be relied upon, on a balance of probabilities, to prove its case.
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.
I respectfully request that this appeal be allowed.
Not sure if I've worded the paragraph underlined in section 2 right either!
0
Comments
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https://forums.moneysavingexpert.com/discussion/4790724
Original thread - which is what you should have stuck to!0 -
On your out of time point, was the date of the NtK within 12 days (excluding weekends etc)? Remember that POFA deems delivery within 2 working days and the date you received it could have been affected by post.0
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. Whilst the BPA Ltd CoP states:
19.6 If you’re parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. If it is more than the recommended amount in 19.5 and is not justified in advance, it could lead to an investigation by the Office of Fair Trading.”
Sorry, slightly off-topic, but does the BPA CoP really contain such a horrendous spelling mistake?0 -
https://forums.moneysavingexpert.com/discussion/4790724
Original thread - which is what you should have stuck to!
Sorry, didn't know the best way to get it seen.0 -
On your out of time point, was the date of the NtK within 12 days (excluding weekends etc)? Remember that POFA deems delivery within 2 working days and the date you received it could have been affected by post.
The date was well within the time limit but I didn't receive it until 17 days later. I have kept the envelope but it was only delivered by Royal Mail not processed by them. The company that does that is UkMail. When I phoned them to question their delivery times they said it would've been the previous day as they guarantee next day delivery.0 -
The date was well within the time limit but I didn't receive it until 17 days later. I have kept the envelope but it was only delivered by Royal Mail not processed by them. The company that does that is UkMail. When I phoned them to question their delivery times they said it would've been the previous day as they guarantee next day delivery.
Your POPLA appeal looks fine then! :T
Only this bit looks like you missed out the word NOT!
'The Respondent may have the necessary contractual authority from the landowner to pursue this parking charge.'PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you Coupon-mad, word inserted! Well that's it - printed and ready for posting. One last question, should I send it recorded or just by ordinary mail?0
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Ordinary is fine (get free proof of posting from the PO). To be certain, do this twice from different POs.
A letter/notice that is correctly addressed and sent 1st class is deemed "served" two working days after posting. (Interpretations Act 1978). Proof of posting means you can, well, prove it was posted. It would then fall on the PPC to prove it wasn't received.
0 -
Will do, thanks bod1467! I am going to submit it online too but can I just clarify that I've ticked the right box - it is the one saying I am not liable for the parking charge isn't it??0
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