Ott?

Coupon-mad

Yep that will do the job...except that you need to say 'I am the registered keeper' and to clarify that the Badge was displayed that day.

I am guessing it's short & sweet as it's designed deliberately to elicit some details from Napier about their clouded view of disability law in the rejection letter!

Styoupid

WELL, I've got my rejection letter. No mention of their view on disability law. Just that it's 'unacceptable'. I've been given a POPLA code, so now to tackle the appeal.

I have noticed that the signs at this car park aren't at the entrance but are some 100 foot further in. Is this important?

Also, the rejection letter states that the notice was 'right in front of the car'. It was'nt. It was to the left and facing the other way.

What should the main point be on the appeal? GPEOL will be one I think.

Coupon-mad

I have already pm'd you about this mentioning LowEndTheory's case on pepipoo I think? So no, it is NOT that simple unless you want to lose.

GPEOL won't be your main point of appeal as such unless you can find somewhere on the signage or the website about this car park, or on the ticket itself, or on the rejection letter, where Napier say the charge is for 'breach' or 'failure to comply with terms'. Do some real digging, read the parking terms for this car park which are probably available online; find the flaws and discrepancies.

The only one I have helped win against Napier at POPLA was LowEndTheory on pepipoo so read this one:

http://forums.pepipoo.com/index.php?showtopic=77378

He didn't post his decision in the end nor his POPLA appeal so you may wish to send him a pm on pepipoo and ask. He said ''The verdict was made basically on the whole 'unfair penalty' angle, which I admit did surprise me as my other angles were strong, but the assessor said she didn't need to consider those.''

As they do not own the car park, what happened when you contacted the landowner about this disability discrimination by their agent?

You need to write a paragraph too, saying clearly that Napier should have made a 'reasonable adjustment' under the Equality Act 2010 as the car was displaying a Blue Badge, rather than only allow a certain number of Badge holders to have a concession (= patently unfair against other disabled people which is discrimination).

Also Napier read these forums so be careful what detail you post here.

And please look at the 'POPLA decisions' thread and read the recent Napier case where I implored the poster in October to word their POPLA appeal VERY carefully as it's Napier. They didn't ask for further advice at all and just sent a standard template POPLA appeal which majored on 'no GPEOL' and they lost (as I had warned them they might).

Styoupid

I have your PM and I'm working on my appeal. Thank you.

I am waiting for a reply from the landowner regarding the disability discrimination.

kirkbyinfurnesslad_2

Styoupid wrote: »

I have your PM and I'm working on my appeal. Thank you.

I am waiting for a reply from the landowner regarding the disability discrimination.

Dont loose sight of your time scales

Styoupid

Here is first draf of my POPLA appeal. I've tried to do as much reading as I can and hopefully it makes sense. Feel free to rip it to bits.

1. Xxxxxxxxxxx legal ability to enforce/issue Parking Charge Notices.


In their correspondence with me, Napier Parking have not produced any evidence to show that they have any proprietary interest in the Beaufort Park car park in London. 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 Napier Parking 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 Napier Parking 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. The charge is a penalty and not a genuine pre-estimate of loss


The xxxxxxxxxxxx terms and conditions for the xxxxxxxxxxxxxxxxx car park, states:

8 'Parking Contraventions':

(b) If you fail to comply with these requirements, then we may charge you a £95 Fixed Charge Notice.

(c) The £95 Fixed Charge Notice represents liquidated and ascertained damages. We are entitled to this sum because we will incur a loss...''

(e) If you breach these Terms and Conditions,

(g) ...breach of contract...'

The PCN records the duration of stay at 15 minutes, whilst the tariff set by the operator for a 1-2 hour stay is just £2. xxxxxxxxxxx is asking for a charge of £95. 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.

xxxxxxxxxxxx have not stated why they feel a £95 charge is an appropriate pre-estimate of loss. To justify this charge, I require that xxxxxxxxxxx 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 £95. Normal expenditure that xxxxxxxxxxx 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 xxxxxxxxxx would suffer irrespective of the car being parked at that car park.

There was no parking charge levied, the car park is charged at £xxx per hour. On the date of the claimed loss it was only at 50% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can xxxxxxxx lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjuration.

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.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £xx.xx for all day parking. This is all the more so for the additional charges which operator states accrues 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 40% by early payment that it is unreasonable to begin with. The 40% discount was again offered after the 28 day of non-payment.

No attempt by xxxxxxxxx to mitigate loss. As it seems that xxxxxxxxx are claiming this is a 'pre-estimate of loss' then as cited in VCS -v- Ibbotson, it is their duty to mitigate that loss. As the driver had only just left the car, then the ticket issuer MUST have been nearby and watched the driver. That being the case, why was there no attempt to mitigate their loss as they watched the driver (they could have said 'you can only park for free if you are in a disabled bay)'.

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 £95 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 xxxxxxxxxxx . 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.

3. Disabled motorists

The BPA Code of Practice states:
16.5 If your landowner provides a concession that allows parking for disabled people, if a vehicle displays a valid Blue Badge you must not issue it with parking charge notices.
The vehicle was parked correctly in a parking space in the car park with a ‘blue badge’ clearly displayed in the windscreen. Demanding money from the driver or registered keeper is a breach of the Equality Act 2010.
EQUALITY ACT 2010
142 Unenforceable terms
(1) A term of a contract is unenforceable against a person in so far as it constitutes, promotes or provides for treatment of that or another person that is of a description prohibited by this Act.

144(1) A term of a contract is unenforceable by a person in whose favour it would operate in so far as it purports to exclude or limit a provision of or made under this Act.

29 Provision of services
(1) A person (a “service-provider”) concerned with the provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.

(2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
(a)as to the terms on which A provides the service to B;
(b)by terminating the provision of the service to B;
©by subjecting B to any other detriment.

(3) A service-provider must not, in relation to the provision of the service, harass—
(a)a person requiring the service, or
(b)a person to whom the service-provider provides the service.

(4) A service-provider must not victimise a person requiring the service by not providing the person with the service.

(5) A service-provider (A) must not, in providing the service, victimise a person (B)—
(a)as to the terms on which A provides the service to B;

4. Signage
The sign at the entrance to the car park is positioned on a pole on the passenger side of a standard right-hand drive vehicle. This makes the sign difficult for a driver to see from inside the car, regardless of which side of the road the entrance of the car park is approached from. It is also difficult to view this sign without impeding the flow of traffic and pedestrians behind. I enclose photos that demonstrate the entrance signage. The BPA Code of Practice at Appendix B sets out strict requirements for entrance signage, including ''The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead'' and ''There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background.
5. No contract with the driver

There is no contract between xxxxxxxxxx and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.
6. Unfair terms

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." 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."

Coupon-mad

Styoupid wrote: »

I have your PM and I'm working on my appeal. Thank you.

I am waiting for a reply from the landowner regarding the disability discrimination.

Send me a pm and I will have a look at this a bit further for you by the weekend if you have time before you must submit the POPLA appeal (and do it online not by post of course, this month).

What date was the rejection letter? Can you pm me a link to a scan or photo of the windscreen ticket and any postal Notice please, both sides, all wording.

Guys_Dad

Liquidated damages. Does their sign actually say that?

If so, search the POPLA DECISIONS sticky thread for these words as POPLA adjudicators have actually used the fact that because charges were specifically Liquidated damages the PPC must justify their GPEOL.

You might do well to quote a few previous POPLA adjudication dates and adjudicator names from the POPLA DECISIONS thread as well.

Styoupid

This has been cancelled by the landowner.

Thanks for all your help!!!