Lost POPLA appeal (UKCPS) - advice needed

Coupon-mad

Yep but was the sign worded as a contractual fee (in their eyes?). The POPLA decision suggests 'breach' but that might just be POPLA's template summary so what did the sign wording look like EXACTLY? Presumably you got a copy with the UKCPS evidence before POPLA made their decision? You did get their evidence did you?

big_boss

Hope the picture shows clearly!

bod1467

The usual bulldookey. You can't agree to a contract whose sole purpose is to breach the contract.

Coupon-mad

UKCPS do try to argue in court that this sign creates a contractual agreement to park without a permit. Their 'wins' on their website are mainly badly defended cases it seems - and those where the defendant didn't turn up for the hearing. Then there was UKCPS v Gaskell which they lost recently and is well worth using if you need to (it's linked in post #5 of the NEWBIES thread).

As bod1467 says, you can't agree to a contract whose sole purpose is to breach the contract. Also, the sign creates no restriction upon loading and unloading - which could be argued is not 'parking' as long as it is momentary - and gives no grace period for such activity nor even to be fetching your permit from adjacent premises.

You also have the fact that there is nothing to preclude unloading on the signs, the permit scheme info nor in the tenancy contract, nor has it been verbally explained to new tenants nor put up on the communal noticeboard. As you say, how was she supposed to know whom to contact...isn't she entitled to stop briefly for a few mins for the purpose of unloading her luggage (she had moved from Dublin and was gradually transferring her stuff into the apartment and was pregnant - which they know).

What about the PCN, Notice to Keeper and rejection letter. Do any of them give the game away that in fact this charge is for 'failure to comply' or 'contravening' or 'contravention' or 'breach of terms?' The letters often give the intention of the charge away where the signage just hides it. And their submission to POPLA, did they give the game away in their evidence pack and talk about breach etc?

big_boss

Thanks! Reading all that is quite mind boggling, but i get the gist that if I put up a good defence, I have a reasonable chance of winning. So what should I do next? Can you help me write a response to UKCPS please?

I need to check their old letters to see the intention of charge.

How can I access their submission to POPLA?

big_boss

Should I write to UKCPS then?:

Thank you for your letter dated xxx. Please note that my previous letter was not an appeal, it was merely requesting you to give me the breakdown of your true pre-estimate losses as per BPA’s code of practice section 19 as well as Unfair Terms in Consumer Contracts Regulations 1999.

I am being reasonable in agreeing to settle the outstanding true losses (if any). I would refer you to the following cases:

Dunlop Pneumatic Tyre Co. Ltd. Vs. New Garage & Motor Co. Ltd., House of Lords, 1914

VCS v Ibbotson 1SE09849 16.5.2012

And of course, UKCPS v Gaskell 14.4.2014.

There are countless more examples. I do not mind appearing before the county court to plead my case. My brother is a solicitor and he will help me build my defence. The onus will be on you to prove how my car parked for less than 5 minutes and not using anybody's car space nor blocking anyone has resulted in your claimed losses worth £100. It's your choice whether you want to take this further or not.

Coupon-mad

Stronger than that, nothing about 'my Dad's bigger than your Dad' (so nothing about your brother as they have their so-called legal expert Steve Hall...LOL!). More like a reply to an LBCCC as shown in this thread:

Parking - Letter Before County Court Claim (LBCCC) - Fight back! Guidance Thread CLICK

Written in the formal way shown in that thread, but also saying stuff like:

- You have no cause of action

- There was no loss and your sign created no contractual agreement; the charge is not a 'tariff'. You cannot enter a contract to be allowed to do what is disallowed.

- You allowed no grace period and even for new residents you published no stated restrictive terms for loading/unloading, no guidance, nothing on the noticeboard and no method of finding out how to load/unload in the circumstances described. Your signs are unclear and unlit, merely stuck on walls, not prominent enough for your onerous terms to be brought home to an unsuspecting new tenant and there is no entrance sign of terms.

- You have caused stress and detriment and harassment to a lady who needed to stop close enough to unload luggage, by virtue of her pregnancy, contrary to the Equality Act 2010 and your statutory duty as a service provider. Your client has similarly breached the Act, as they are liable for your actions.

- You have no locus standi.

- As defined in Dunlop Pneumatic Tyre Co. Ltd. Vs. New Garage & Motor Co. Ltd., House of Lords, 1914 = your charges are unreasonable and unconscionable penalties issued as a deterrent in terrorem.

- In J. Spurling v. Bradshaw <a title="Link to BAILII version" href="http://www.bailii.org/ew/cases/EWCA/Civ/1956/3.html"&gt;[1956] 1 W.L.R. 461 there are the observations of Lord Justice Denning at page 466: ' I quite agree that the more unreasonable a clause is, the greater the notice which must be given of it. Some clauses which I have seen would need to be printed in red ink on the face of the document with a red hand pointing to it before the notice could be held to be sufficient.''
This was repeated by Lord Justice Denning in Thornton v. Shoe Lane Parking Ltd. <a title="Link to BAILII version" href="http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html"&gt;[1971] 2 Q.B. 163 ''the court should not hold any man bound by it unless it is drawn to his attention in the most explicit way. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling."

Your signage was certainly not 'startling' - the only thing that's startling is the fact that POPLA do not consider mitigation which I found out after a genuine appeal had been wasted.

- As in VCS v Ibbotson 1SE09849, 16.5.2012 = quite apart from being no gentleman, your 'ticketer' took no steps to mitigate any 'loss' if he watched a pregnant lady unload cases and scuttled over to issue a 'PCN' with no observation time nor adherence to the BPA Code of Practice.

- As in VCS v Finn 3QZ64216, 2/4/2014 = Re 'loss' the Judge referred to ObServices v Thurlow as the only appeal case raised. No GPEOL & 'if the business operates like this it must owe a lot of money'! £95 costs awarded to the defendant. Your business model is much the same 'protection racket style'.

- As in ObServices v Thurlow 0QT34807, 10/02/2011 (APPEAL) = the sum is an unenforceable penalty clause; there was no loss caused by breach of contract; the common 'discount period' reinforces lack of provable loss; Arthur vs Anker, and Vine vs Waltham Forest deemed irrelevant.

- As in Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 APPEAL = Despite sending a QC to this Appeal case, Mr Recorder Gibson QC, the Senior Judge, said the sum was not a genuine offer to park at that price; main purpose was to deter = a penalty dressed up as a contractual term, not recoverable. Your charge is the same.

- As in UKCPS v Gaskell 3QZ55265,14.4.2014 = the Judge was not mistaken or fussy or whatever excuse your Mr Hall likes to state on your template 'look at all the Court cases we've won where most people didn't show up' evidence bluster. The fact is, the Judge took time to consider the entire set-up (and it is a set-up). You lost. I have the transcript and it is persuasive.

Parking Eye v Beavis = if you raise that one I will point out it's going to the Court of Appeal and that the operation was highly unusual, specific to that car park where the claimant paid a ridiculous amount per week to catch people and made out they were the principal. You are not.








P.S. And don't forget to check the letters - What about the PCN, Notice to Keeper and rejection letter. Do any of them give the game away that in fact this charge is for 'failure to comply' or 'contravening' or 'contravention' or 'breach of terms?' The letters often give the intention of the charge away where the signage just hides it. And their submission to POPLA, did they give the game away in their evidence pack and talk about breach etc?

P.P.S. Cases won against PPCs, use case numbers, this is where I got the above from:
http://forums.moneysavingexpert.com/showpost.php?p=62971894&postcount=65


HTH

HO87

+1

I would add that both Arthur v Anker and Vine v LB Waltham Forest relate solely to clamping and are irrelevant in relation to parking matters. Attempts have been made to use them as examples of how contracts may be established by notices but in both cases there was no contract involved and the judges found that those cases hinged on what is known as volenti non fit injuria - not contractual terms.

Aside from that crucial point it would be to substantially misrepresent both of the cited cases to suggest that a sign that in the case of Arthur v Anker contained just 7 words, might reasonably be compared with the signs used in the instant matter - that contain over 180. A sign containing 7 words in the same type-face might be taken in at a glance. That cannot be said for the signs in this case.

big_boss

Thank for your immense help so far!! The response is going to be very complicated, and I need to get my head round it.

Meanwhile, I'm sending this to them. Is it ok?

Dear Sirs

UKCPS –v- XXX
Proposed County Court Proceedings

I refer to the Letter Before County Court Claim served on behalf of your company on 2 June 2014, received on 6 June 2014, and to subsequent correspondence on 16 June 2014, received on 20 June 2014 .

I am now seeking advice with regard to compiling my formal response as required by the Practice Direction and confirm that I will provide this document within 30 days of the date of this letter.

I take this opportunity to remind you that your company must comply with ALL steps in the Practice Direction BEFORE starting court proceedings. I also refer you to Para 4 of the Practice Direction on non-compliance and sanctions.

Yours faithfully

Coupon-mad

Yep that's fine as an acknowledgement I think unless zzzLazyDaisy comes along and adds anything.