Are we on the right lines and what about the dates ?

4consumerrights

The reduction from £100 to £60 is irrelevant as the PPCs are obliged under their COP to offer a 40% reduction in any case. If it was a lower full and final settlement offer (which has been seen many times - such as £15) and worded to prevent going to POPLA then yes that could be perceived as coercion.

Appeal points here to look at:

No contract with landowner

It is believed that UKPC are merely providing car park management services on behalf of the landowner and do not have the legal standing to make contracts with the driver and that any car parking arrangements are between the landowner and the motorist. A full unredacted contract with the landowner is required to demonstrate that UKPC have the requisite locus to pursue parking charges, as creditor through the courts in their own name.

As signed witness statement in lieu of the unredacted contract will not suffice as it does not prove that the signatory has seen any contract or is privy to any terms and conditions contained therein.

Non-Compliant signage - no contract with driver

It is denied that UKPC have the requisite locus to offer any contract to park in the first instance but notwithstanding that the following applies:

The registered keeper disputes that a contract was made with the driver on the date of the alleged contravention and contends that any signage present at the site does not meet the requirements as stipulated by the British Parking Associations Code of Practice.

Subsequent visits to the site have revealed that any signs are positioned in such a manner that it would impossible for any driver to see that the site was managed and that any terms applied - and the basic criteria for contract formation has not been fulfilled (offer/acceptance of terms and meeting of minds)

Parking Charge not a genuine pre-estimate of loss/Penalty

The parking charge amount of £100 is disproportionate and punitive and does not represent a genuine pre-estimate of loss to either the landowner or UKPC for the alleged contravention. Any ascertained or liquidated damages perceived to be owing from an alleged breach of parking conditions must be proven to flow directly from the aforesaid breach. Normal tax deductible business running costs cannot be included as these would occur even if no breach occurred.

Parking is free at this site and therefore any alleged overstay cannot be determined to represent any loss to the landowner in question and is more likely to increase any income by remaining longer at the site. The Office of fair trading states that a parking charge is not recoverable simply because it is stated to be a parking charge. It cannot be used to create a loss, where no loss exists.UKPC have declared on their website that they offer their services free of charge to their clients and raise all their revenue from the issuance of parking charge notices. This business model relies entirely on motorists breaching terms of parking and is thus a clear deterrent and unlawful penalty by default.

Coupon-mad

As UKPC have not supplied me with a copy of their contract and are not clear in their letter of xx.xx.xxxx I do not know whether the charge is for a pre-estimate of loss to UKPC’s client or a contractually agreed sum; in either case £100 is excessive and I consider it to be punitive.

You have wandered off the point a bit in this paragraph as it covers two different things and not in quite enough detail (e.g. you haven't actually asked for the contract and stated why you contend they have no standing). This bit needs to be about the contract and demanding an unredacted copy of it because you know they do not own the car park and you contend that they have no standing to make contracts with drivers or to pursue charges in the courts in their own name. So you require the actual contract, not just a site agreement piece of paper saying they can 'issue PCNs' (which is not the same thing). You want to check the clauses about 'revenue sharing' that you believe is a feature of the contract (and will show the nature of this charge to be about profit & revenue, not loss) and you want to check the restrictions and charges stated and that the operator has been assigned the above specific authority and standing.


So then take this bit out: 'I do not know whether the charge is for a pre-estimate of loss to UKPC’s client or a contractually agreed sum; in either case £100 is excessive and I consider it to be punitive.' and plonk it back higher up where you talk about the 'GPEOL' issue.


P.S. Might have been easier if you just copied & pasted the usual paragraphs about no GPEOL and no standing/contract, from a winning POPLA appeal example!

One_Step_at_a_Time_2

Thanks folks - I'll get on with getting some standard stuff in there and polishing it up tomorrow.

One_Step_at_a_Time_2

Hi all, me again. This is going to be a long post as I’m not sure what to include/not to include.

We’ve received UKPC’s POPLA Appeal pack. Not sure if we need to do anything now. Also not sure if anyone is interested in their GPEOL blurb or if you’ve already seen it. I don’t think I’ll be able to attach the pdf. doc. so I’ve copied the relevant bits and changed the font for the copied passages.

There is a letter from the Centre Manager of the shopping mall confirming that under the agreement with Albany Courtyard Investments Ltd c/o Workman LLP and UKPC dated in 2012 that they engage UKPC to provide car parking services at Crystal Peaks in accordance with BPAs Approved Operator Scheme CoP, they give permission to UKPC to levy parking charges parked in breach of the displayed conditions and they authorise UKPC to take such action they consider appropriate. This is just a precis as I can’t copy from the pdf. The letter is dated 17.03.14 (surely we can’t be the first people to appeal ?!)

Then we have UKPC’s case itself which has a header then this………….

POPLA Ref xxxxxxxxxxxx
Parking Charge Ref xxxxxxxxxxxx
VRM xxxxxxxxx
Site name Crystal Peaks Shopping Mall
Contravention Date/Time xxxxxxxxxxxxxxx
Lower Charge Rate £60.00
Contravention Not parked correctly within the markings of the bay or space.
On xxxxxxxx warden number xxxxxx issued a parking charge to vehicle registration xxxxxxx at Crystal Peaks Shopping Mall. The parking charge was issued because the vehicle was parked outside of a marked bay.
The Parking Charge amount was £100, reduced to £60 if payment was received within 14 days.
An appeal was received from xxxxxxxxxx on xx/01/2014, to which the appeals department investigated and decided to reject.
The basis of xxxxxx’s appeal, and of his POPLA appeal, was threefold and our response is as set out below.
1) We have attached a breakdown of our pre-estimate of loss.
2) We have attached proof that we are authorised to enforce parking at Crystal Peaks Shopping Mall.
3) All of our signage is fully compliant with the BPA Code of Practice. There are 80 signs at Crystal Peaks Shopping Mall and we have enclosed photographic evidence showing signs in close proximity to xxxxxxx’s vehicle.
There are sufficient signs warning drivers that parking outside of a marked bay may lead to a Parking Charge being issued. Xxxxxxx’s vehicle was parked outside of a marked bay and consequently the Parking Charge was correctly issued.
A letter was sent to xxxxxxxx informing them of our decision on xx/02/2014.


Followed by this……

Each of these costs are included in our genuine pre estimate of loss and each of the specific
amounts are derived in numerous different ways. In terms of providing proof of our pre estimate
of loss, this clearly satisfies that there has been an estimate of our losses before entering into
contracts with drivers and therein must satisfy this requirement.
3.5.1 Site Based
Parking Charge - Directly relates to the breach
Weatherproof Wallet - Directly relates to the breach
Staffing costs associated with the charge – while some of UKPC’s staffing costs are not directly
attributable to the breach there are some that are directly attributable. Where a warden has been
made aware of a breach and has gone to the site to issue the charge, then we can clearly allocate
the cost to that breach. The cost is best apportioned on a time basis relative to the amount of time
associated with that breach. This cost will vary again depending on the type of site and warden
allocation methodology that is employed at any particular site. This is looked at on a case by case
basis but typically we review the remoteness of the site as well as if there are fixed members of staff
or whether staff are deployed on a call out basis. Retail sites therefore are more likely to have a
lower pre-estimate of loss than residential sites (this will not always be the case).
Motor and Travel expenses – wardens may need to travel to the site to issue charges. There are
times where this travel cost has been directly attributed to the breach. This cost will vary dependant
on the warden allocation methodology that is employed at any particular site. Again a number of
things are taken into account. Typically a warden will travel a certain distance to get to a site. UKPC
have sites across the whole of the UK. Our wardens are spread across the whole country with some
working solely at one site, and others travelling to cover a specific region.
3.5.2 Parking Charge Validation
All of these costs are administrative costs checking the details of the breach in order to comply with
requirements set out in the AOS Code of Practice and the DVLA requirements.
3.5.3 Appeals
UKPC handle a number of appeals relating to parking charges. It is not only suitable to have an
internal appeals process, but it is also a requirement of the AOS code of practice and in England and
Wales a requirement of the Protection of Freedoms Act (2012)`. In reviewing these costs we have
looked at the amount of time that is spent in dealing with a phone call or appeal and have then
apportioned this cost to the Pre Estimate of Loss, by factoring the costs relative to its likely outcome.
When people appeal there tend to be follow up appeals. From looking at data we have calculated
that when people do appeal there are 1.4 appeals per case.
Telephone Costs Call Centre – we anticipate that all calls will last between 6 and 12 minutes on
average and so have allocated the time and staff costs appropriately. We estimate that 25% of
people that receive a charge will call in and use this to discuss their parking charge.
Reviewing Appeal – This is done by three tiers of employee. The majority of appeals are dealt with
by appeals staff, but some are escalated to managers or directors for review.
Legal Advice – Sometimes appeals contain references to court cases or legislation and we need to
seek legal advice on our position.
Appeal Letter – We need to send a letter responding to the appeal.
Communication with Client – Often charges require us to verify a claim made with the client or their
agents. We need to arrange for our Client Liaison dept to make contact with the client or tenants to
verify the stories and gather evidence for the appeals department to make a decision on the case in
question.
Consultation with other clients – Often the appeals team will need to follow up on claims made in
the appeal and review evidence from other departments. This may be conversations that were
claimed to have occurred or evidence from wardens.
3.5.4 POPLA
In England and Wales, UKPC offer the recipient of a parking charge, the opportunity to have their
appeal heard by an independent appeals service. For the BPA this is currently POPLA. All costs
associated with POPLA are directly related to the breach.
POPLA Appeal administration – UKPC managing the POPLA process recording cases that are with
POPLA and managing the process of coordinating the work.
Preparation of Evidence pack – This work is completed by people in different pay grades and takes
time to bring together.
Legal Advice – Occasionally, the appellants change their appeal from the one that they submitted to
us. Therefore at the POPLA stage there is often a need to gain further legal support. We find that
appeals at the POPLA stage are usually far more involved and more frequently require professional
advice.
POPLA Cost - The Charge for POPLA is clearly directly attributable to the breach and therefore this
can be attributed to the Pre Estimate.
Letters after POLPLA Decision - The writing of a letter and then the printing and postage of that
letter is directly attributable to the breach and recovery of the parking charge.
3.5.5 Payment Costs
UKPC have various ways of paying a parking charge. There are bank costs and personnel costs
associated with managing and processing these. These costs are directly attributable to the breach.
3.5.6 DVLA Costs
In line with the Protection of Freedoms Act (2012) UKPC are able to contact the DVLA after a certain
time period to request the Registered keeper details from them. There are various costs that are
associated with this. There is the DVLA charge itself, as well as the costs of processing and ensuring
that the data is correct.
3.5.7 Written Communication with the Driver or RK
UKPC write to people who have received a Parking Charge to follow up and get the charge paid. We
send a number of letters in line with the requirements of the AOS Code of Practice and the
Protection of freedom Act (2012). These various letters have different likelihoods of needing to be
sent so this is factored in when we are considering the cost basis for them.
3.5.8 Debt Recovery
If Charges remain unpaid, UKPC will send a number of cases to A debt recovery company for further
action on our behalf. We need to prepare the information and get this over to the company so that
they can pursue it on our behalf.
3.5.9 Legal Action
Occasionally it is necessary for UKPC to go through the courts to recover the amounts due. UKPC
anticipate taking a certain number of people per year to court. The costs vary depending on how
involved the cases are and whether a case is settled earlier. UKPC have started taking more people
to court and anticipate that this will continue into the future. As such we have sat down with our
lawyers and advisors to try and estimate the likely costs involved in this.
3.5.10 Notes on the timing of the incurrence of costs
While UKPC have done their best to review the order and timings when costs will be incurred, we
have found that this is very difficult. For example we have included the costs for correspondence
with the driver or RK in the larger figure as we only need to provide a discount for payment for 14
days. Typically DVLA and Further costs will be incurred after this point. Occasionally however we
may incur costs of writing to nominated drivers etc before this has happened. Furthermore, a lot of
people wait to appeal and at this point UKPC could have increased the Parking Charge to the higher
amount. Should we do this however, we are in the situation where there would be no incentive for
appellants to pay rather than to go to POPLA. As such a vast amount of the correspondence could
conceivably be made before the price rise. Payment during this time is rare, but is something that
we are bearing in mind when reviewing a cost allocation methodology.
3.5.11 Business Costs that are not included in the pre-estimate of loss
The following are required regardless of whether or not a breach occurs on the site. While we can
argue that they are commercially justifiable to include, we have taken the view not to include them.
• Head Office Rent and Rates
• Employee wages that are not related to directly dealing with the parking charge
• Signage on site
• Warden training
• Hiring costs
• Company Insurance
• Membership of ATA
• Installation of ANPR Equipment
• Pay and Display equipment
• Warning flyers
• iwarden software
• Employee Uniform
• Area Managers


Then there are pages showing all the documentation to and fro; the windscreen sticker, NtK, etc. the appeal to them and their return letter, their reminders, the photos of the car at the time of the incident; two of which clearly show the space into which the car overlaps is not a parking space, purely dead space and finally various pictures of the car park (mainly taken from Google Maps !) pretty much all of which are irrelevant as they are mostly of Parent Child Parking or of different areas of the car parks. They also haven’t shown any signs displayed at the entrance that was used to access the area.

Interestingly the ‘Private Land’ sign they include (actually it’s a proof copy, not a real sign) states ‘4 Hour Maximum Stay. See notices in car park for conditions.’ Nothing about any conditions for anything other than length of stay….. However, I digress.

As I said at the beginning, I’m not sure if we have to do anything more now or still just sit tight and wait. One thing does leap to the eye though in that surely Debt Recovery and Legal Action costs cannot reasonably be factored into the initial ‘Charge’ because they can reasonably be expected to add them at the stage of legal action ? Or maybe that just shows more of my ignorance.

Sorry this is so long. Any views ?

Coupon-mad

They'll lose on no GPEOL! So sit tight.

One_Step_at_a_Time_2

Thanks for the reassurance Coupon-mad. We'll put it on the back burner again.

bod1467

And don't forget ... even if by some miracle the assessor has a mental aberration and accepts UKPC's GPEOL "evidence", and rejects your appeal, you STILL DON'T HAVE TO PAY!

POPLA appeals are binding ONLY on the PPC, NOT the motorist. UKPC would still have to take you to court (they won't) to MAKE you pay.

One_Step_at_a_Time_2

Big sigh. Got the POPLA appeal result today. Many thanks to everyone here especially Couponmad, Umkomaas, Redx, 4consumerrights and bod1467 who kept us on the straight and narrow and helped us keep the faith ! :rotfl:

I'll post on the POPLA decisions thread too but here's the meat of the allowed appeal.

The Operator issued parking charge notice number XXXXXXXXX arising out of the presence at Crystal Peaks shopping mall, on xxxxxxxxx, of a vehicle with registration mark xxxxxx.
The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination
The Operator issued parking charge notice number xxxxxxxxxx arising out of the presence at Crystal Peaks shopping mall, on xxxxxxxx, of a vehicle with registration mark xxxxxxxxx for not parking correctly within the markings of a bay or space.
It is the Operator’s case that the Appellant’s vehicle was not parked correctly within the markings of a bay or space and this was a breach of the terms and conditions of parking as set out on signage at the site.
The Appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.
As the Appellant has raised the issue of the charge not being a genuine pre-estimate of loss, the onus is on the Operator to prove that it is. The Operator has produced a list of things that they have to pay for in relation to each parking charge notice, however, they have not provided a breakdown of their costs and therefore they have not justified that the parking charge amount is a genuine pre-estimate of loss.
I have looked at all of the evidence and have decided to allow this appeal on the basis that the Operator has not justified that the parking charge amount is a genuine pre-estimate of loss.
Accordingly, this appeal must be allowed.

Nozir Uddin
Assessor

There will be celebrations tonight :beer:

Umkomaas

Great result One-Step, and thank you for coming back to update us. It really does provide us with feedback that we are continuing to advise 'on the right lines' as well as personal satisfaction that we have been able to help. It's surprising just how many people, despite all the personal effort we put in to helping them with THEIR problem, just can't be @rsed to have the courtesy of a one line outcome result.

Of course winning on any appeal point is great news, and GPEOL is the silver bullet currently. But, parking slightly over a bay line is far less of a GPEOL issue than say a 10 minute overstay. It is much more about a 'PENALTY' being slapped on you by an outfit that has totally NO AUTHORITY to do so - it's a pity POPLA don't seize on this for a change.

Anyway, thanks again, and all the best for the future. :T

One_Step_at_a_Time_2

After all the help given to us we couldn't just slink away - besides we just HAD to tell as many people as possible :rotfl: