KPS parking charge help.

Wood_duck

Hello.
I am a newbie, I have read the newbies thread and can see I have already made a few mistakes! I really should have come here before writing my appeal to a private parking company based in Cornwall by the name of Kernow Parking Solutions.

I am from Australia and my wife and I recently hired a motorhome to explore Devon and Cornwall. We parked the vehicle all over the North and south coast with no hassles, always asking parking attendants whether or not the motorhome was too long. Every time the answer was simple. "It's low season, no one is around, just be sensible". We always parked out of the way not obstructing anything.

At a little place named mouse hole there was no attendant around and we parked side on rather than front ways in. At the top corner of the car park. Out of everyone's way (everyone being the other 10 cars in the near empty car park). The van took up one marked bay and the nose of the vehicle was in an unmarked, but unused section of the car park. By unused I mean the area comes to a triangular point and it's fenced so unless someone wants to walk into a fence, it doesn't get used. We paid and displayed, and there was no signage saying "no campers". We only stayed for 40 mins of the hour we paid for.
We didn't read the sign that said "park within marked bays" and because of our previous experience in the week prior, we just took the common sense approach to stay out of the way.

Ok, so before reading this and other forums I stupidly wrote to them saying I was the driver and explained why I was parked in that manner as I have above. I also gave our address. Today I got a letter through registered post saying the charge stands and that I should pay £60 with the 14 days or £100 after that time. They also gave me a POPLA number if that helps.

My wife and I have been working in the UK for the past 6 months at a fixed address, that is how they were able to contact us. It might be worth noting that we are leaving the UK early January next year.

Any help would be much appreciated

Redx

well , as it was a hire vehicle the thing about the driver admittance is probably correct as you would not be wanting the hire company to pay the charge and then take it from your credit card or whatever

you have up to 28 days to appeal to popla , so you should probably send this in based on a decent template from here with the usual technicalities within it

if it fails at popla then they would possibly pursue you for the debt , but you would not be here then anyway

if it is successful then no further issues anyway

if you use an email address then you will or should get the popla outcome by email , so you would know the outcome

common sense never works in this industry because they are maximising their profits by finding any excuse to charge motorists for any and all infringements

you certainly wont get a hearing before disappearing back to oz

once back in oz I wouldnt think you will hear any more about it even if you lost at popla

with the help of templates from here you should win at popla, but NOT on mitigation, so the reasons why are irrelevant , nobody cares about them, certainly not popla

so you plead your case on technicalities, not mitigation

Wood_duck

That is the exact reason I told them who I was, so they couldn't try and recover the money through the hire company.

Do you think the would try and get my information from the hire company and persue the charge by contacting me in Australia? And if so would this have any ramifications for later visits to the UK? I'm not a busy traveller but at some time in the future I'd like to be able to come back.

Could you by any chance point me I the direction of templates containing arguments against parking outside marked area or anything else that may help.

Redx

I cannot answer as to what any company may do to pursue court claims , and would not want to either

but if you win at popla then that is the end of it , period

its a civil matter anyway, not a criminal matter

the templates to look at are clearly signposted in the newbies thread as shown in my signature, the one by guys-dad being a good one to amend according to your own circumstances

ps:- there are no arguments for parking outside marked bays , which is why I said mitigation wont work, forget the what happened part, wise up to the technicalities and use those to your advantage

basically , no loss to the landowner as the parking ticket was paid, the punishment does not fit the crime (the parking charge notice is not a genuine pre-estimate of loss) , no contract to pursue you , no legal right as not the landowner , blah blah

so as I said, forget what happened and the whys and wherefores, treat it on the legal basis of prove you are justified in charging this stupid amount for little or no reason !!

read this , it will help you make sense off it

https://forums.moneysavingexpert.com/discussion/4835943

Wood_duck

Thanks so much
Much appreciated

Coupon-mad

Wood_duck wrote: »

They also gave me a POPLA number if that helps.

It does; you have about 3 weeks now, if the rejection letter was dated last week. The code runs out after 28 days.

How to win at POPLA:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

Use a friend's address for service of the decision in due course if you will be back in Australia, or submit your POPLA appeal online. It will not be about 'what happened' nor 'why you parked there' as you will see from the winning wording examples & info threads. It's about rebutting their charge under contract law.

We win every time. Do show us your draft appeal once you have read the examples and info threads linked there.

But as Kernow are such a small fish and we hardly hear about them, could you show us the PCN (both sides)? As you are a newbie you can't post full links yet so if you can host a photo or scan on tinypic, just post here the URL but MINUS the http://

By the way there are no repercussions for you with a private ticket, it isn't a criminal thing and they cannot re-approach the hire firm once they have the driver's details (that would be illegal and you could bounce back/dispute any payment made on that basis by a daft hire firm if they did get a letter). But we'd love to help you win at POPLA stage as it's just one appeal, worded to make it win - and that costs the operator £27 in fees, plus man hours, only to be told to cancel their fake parking ticket!

Wood_duck

Dear Sir/Madam,


After an unsuccessful attempt to reasonably mitigate my responsibility regarding a 'breach of parking conditions'. I must now appeal against the decision of Kernow Parking Solutions because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.

I would firstly like to call into question the operators right to issue tickets at this site as the site is noted as a private parking site 'managed' by Kernow Parking Solutions. I can assume Kernow Parking Solutions to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, The operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they may not own nor have any interest or assignment of title of the land in question.

I require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

The Operator also make reference in their appeal refusal of 2/12/2013 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.

7.1 of the BPA code of practice makes it a requirement that Kernow Parking Solutions either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as the driver in this incident put Kernow Parking Solutions to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerus task to produce the contract as secttion 8.1 of the code means it has to be available at all times.

The charge relating to this incident as I understand is that the vehicle was allegedly breaching the condition that 'All vehicles must be parked in the allocated parking bays. I mention this for two reasons. The first being that the vehicle involved was 'in' a parking bay, if Kernow Parking Solutions require vehicles 'within' marked bays they should word their terms and conditions explicitly. The second and more important point is that payment was not called into question as I did not breach the condition that 'Vehicles need to display clearly a valid ticket i.e not face down or expired'. This is because the vehicle was parked on this site for a total of forty five minutes and full payment for this time (and more) was made.

This point is particularly significant in appeal as 19.5 of the code of practice states, “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,”

The parking charge levied was paid in full. On the date of the claimed loss the car park was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Kernow Parking Solutions 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. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. 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 adjucation.

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 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.

UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for vehicle of which the driver both paid and displayed, 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/fine.

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.


NO CONTRACT WITH THE DRIVER

There is no contract between PCC 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.


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."

UNREASONABLE

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.”


I would contend that this appeal should be allowed for these reasons.

Wood_duck

Ok I can already note multiple mistakes and lots of waffle in this first draft/example. I have been told to first highlight the points I am attempting to argue. Other than

1. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts.

2. The amount demanded is not a Genuine Pre-estimate of loss.

What else should I include?

Umkomaas

1. Non genuine pre-estimate of loss
2. Signage
3. No Contract with landowner
4. Trespass
5. Unlawful Penalty Charge
6. Business Rates
7. ANPR Accuracy

Try these, in the above, if you've not already covered them!

Wood_duck

Photos of original notice

i41.tinypic.com/2h5k68k.jpg

i44.tinypic.com/nfhf86.jpg

Wood_duck

Please elaborate on points 4, 5, 6 & 7 if you can