Help with POPLA appeal - B&M Stockport

CElally

Hi All

I'm hoping you can lend some of your collective wisdom with a POPLA appeal. The ticket in question isn't mine but my mothers. She appealed to the parking company and they of course rejected it and so it has only come to my attention since then (I would have done things very differently if she had just asked me to help in the first place!)

The ticket came at the car park for B&M and Dreams in Stockport and was issued by JAS parking. They have stated that she left the premises which was not authorised (And clearly witnessed by their parking attendant apparently). She was the driver of the vehicle (and has admitted that in her appeal to them) and browsed in dreams then went into B&M and purchased. We have the receipt for this purchase although it was some 40 minutes after the ticket was issued. She also had a friend in the car who went to the Peel centre over the road and then met her in B&M, so technically they did leave the car park.

Their response to her appeal of the ticket was this:

Thank you for your email. The reason you were issued the parking charge notice was because you parked your vehicle and left the premises and went out which is not authorised as was clearly witnessed by our parking attendant. When the parking charge notice was issued you were not inside B&M/ Dreams.

B&M/Dreams car park is only for customers whilst using the premises. Our car park terms and conditions are clearly written on the 7 sign boards that are displayed throughout the car park.
Our sign boards clearly state below.
• Vehicle left in the car park before or after using either
premises.
• Restrictions apply 24/7 including weekends and bank
holidays.
• No waiting / no turning / no overnight parking / this is
not a pick up or drop off site. Vehicles parked at the driver’s risk.
I would like to remind you that when you parked your vehicle on the site in question, you contractually agreed to abide by the terms and conditions attached to that site. As stated, these terms and conditions are adequately displayed on signage at the site. If you did not wish to abide by these terms and conditions, nor accept the charges incurred should they be breached, you were under no obligation to park on the property in question.
Please be aware that our signage meets or exceeds the requirements of the British Parking Associations codes of conduct.

Therefore you have breached the terms and conditions of the Car Park. So Unfortunately on this occasion your appeal is unsuccessful.

You now have a number of options from which to choose

1. Pay the Parking Charge Notice at the prevailing price of £56.40
within 14 days. Please note that after this time the discounted rate will
no longer apply and the Parking Charge Notice will rise to £94.

2. Make an appeal to POPLA – The Independent Appeals Service by
making your appeal online at

3. Please note that if you wish to appeal to POPLA, you will lose
the right to pay the charge at the discounted rate of £56.40, and should
POPLA’s decision not go in your favour you will be required to pay the
full amount of £94. If you opt to pay the parking charge you will be
unable to appeal to POPLA.

If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.

They have sent a POPLA code so I want to get on that as quickly as possible. I'm guessing the most likely grounds for appeal is the genuine estimate of loss and also asking for the contractual agreement between them and the retailer.

Her argument is also that she did not actually leave the premises, only the passenger. I don't know how to word this/whether it should go in though?!

Any help is much appreciated!!

Thanks

ITGuy90

Since the car park is free at B&M in Stockport AND you purchased something in the store, where is their loss? Demand the POPLA code if not already given one.

CElally

ITGuy90 wrote: »

Since the car park is free at B&M in Stockport AND you purchased something in the store, where is their loss? Demand the POPLA code if not already given one.

Thanks, that is exactly what I was thinking. I've got some wording for a free car park from another appeal letter on here so I'll draft something and post it up. They have sent the POPLA code so as soon as I've got an appeal letter I'm good to go...

CElally

Ok my draft appeal. Basically taken from templates on here, let me know if there's any advice on it. I do think I should put something in about them proving that we left the premises but not sure where it should fit in... Thanks in advance!

Dear POPLA Assessor,
Re: JAS PCN, verification code XXXXX

I am the registered keeper and I wish to appeal a recent parking charge from JAS. We were genuine customers of the principal (Dreams and B&M Bargains) at the time of the alleged breach of terms. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. JAS notices allege a 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that JAS charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
Furthermore, we were genuine shoppers in the two shops in question; browsing in one (in anticipation of a large purchase in the coming weeks) and then browsing and purchasing in the other (receipt attached). Therefore there cannot be any genuine losses incurred as the facility was being used exactly as intended.

This charge from JAS as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

JAS and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

I’m sure JAS will attempt to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

2) No standing or authority to pursue charges nor form contracts with drivers
JAS do not own the land mentioned in their PCN and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

3) Flawed landowner contract and irregularities with any witness statement
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require JAS to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

If JAS produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I do not expect it has escaped the POPLA Assessors' attention that JAS witness statements have been robustly and publicly discredited and are - arguably - not worth the paper they are photocopied on. I suggest JAS don't bother trying that in my case. If they do, I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms, or, indeed is even an employee of the landowner, or signed it on the date shown. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

Indeed I submit (and as I have raised the issue, JAS must now disprove) that their Contract or User Agreement with Dreams/B&M is likely to contain a secret 'genuine customer exemption' clause which in fact exempts Dreams/B&M customers like us from these spurious charges. Not only have JAS not allowed my initial appeal that the driver and passenger were genuine Dreams/B&M customers, but at the outset, when they allege a contract was formed, (which is denied) JAS failed to alert the driver to that secret clause. Which leads me to the next point:

4) Breach of UTCCR 1999 and CPUTR 2008
I contend that a secret term which leaves a customer at a severe disadvantage as they are unaware of it, is a 'wholly unreasonable' contract term and a 'misleading omission' which is in breach of the Unfair Terms in Consumer Contracts Regulations 1999 and Consumer Protection from Unfair Trading Regulations (CPUTR) 2008. JAS are taking unconscionable advantage of myself by demanding a 'charge' for alleged 'breach', holding me liable and yet not informing the driver at the point of any alleged contract, about the secret exemption clause that I believe exists in their contract with Dreams/B&M.. Nor did they refer to it when rejecting my appeal which told them that we were customers who were browsing and purchasing in the stores. JAS as agents, have no lawful excuse to pursue this wholly unfair and disproportionate charge when I believe their own contract with the retailer specifically allows paying customers to be exempt. JAS are seeking to impose punitive sanctions that are not required at all by any 'legitimate interest of the principal'.

CPUTR 2008 Part 2, Prohibitions
Misleading omissions
6(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a)the commercial practice omits material information,
(b)the commercial practice hides material information,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness
''A term is unfair if:
Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

If they refute this then JAS must explain their position to POPLA, produce the unredacted section of the contract and/or User Manual and show how they consider they can override the express wishes of the principal when JAS are mere agents. And explain how their secret 'exemption clause' meets the test of fairness if they do not share it with the party they hold liable. Such terms must be in the signage they are relying upon to have formed the alleged contract at the outset.


I request that my appeal is upheld and for POPLA to inform JAS to cancel the PCN.

bod1467

Remove any obviously-emotive references, such as "fake PCN". There's no point in antagonising them.

And edit your post to remove any identifiable info (like the POPLA reference code).

CElally

bod1467 wrote: »

Remove any obviously-emotive references, such as "fake PCN". There's no point in antagonising them.

And edit your post to remove any identifiable info (like the POPLA reference code).

Done thanks!

bod1467

Don't attach an actual receipt - attach a copy of it.

CElally

bod1467 wrote: »

Don't attach an actual receipt - attach a copy of it.

I was going to submit the appeal online and scan the receipt in and upload. Should I send it off as a paper copy instead?

bod1467

Online appeal and scan is fine.

Some suggest doing both - online AND postal. Get a (free) certificate/proof of posting from the Post Office. Also (for postal) make sure all items are stapled together (not clipped) and the POPLA reference is on every sheet.

Guys_Dad

i don't like the witness statement paragraphs. Too much ""If they....etc"

I suggest you look at my paragraphs for this point from here https://forums.moneysavingexpert.com/discussion/4816165

but you may want to look at the Prankster's points on the witness statements as well.

On the contract point. also look at my link as prior to the proof of contract with whoever they have supposedly contracted, what right have the 3rd party to make any contract? Are they the landowner? Have they Planning consent?. That's why I have that in my core points.

And the magic words "must not contain any operational costs such as signage, salaries, uniforms etc" seem to be missing or hidden under all the extra waffle that abounds.

Just my views, and please feel free to disregard.

Coupon-mad

What happened when you complained to the retail Managers of both stores (even Dreams)?

Also IMHO you should have an 'unclear signage' paragraph in there (never let a PPC off having to include maps & signage pics!), and one asking for evidence that both driver and passenger left the site seeing as there is no boundary map nor information about the curtilage of the site on the signage, nor any proof of where the driver and passenger both were. In fact, at all times one of the two occupants of the car was actually in Dreams or B&M so JAS' assertion is wrong and not proved with any evidence whatsoever.

Also you can add that if an operative watches a driver walk away from what they consider to be the 'site boundary' (which is denied in fact because there were two occupants of the car and one was always in the Stores) then as stated by Judge McIlwaine in VCS v Ibbotson, the PPC has a duty to mitigate and loss - in this case by stopping the driver and warning them about the issue which cannot have been clear. You could add this into your 'loss' paragraph.