After being shouted at ;-)

Hot_Bring

4consumerrights wrote: »

Just seen your post Hot Bring crossed when doing mine! How did they lie to Nominet?

When you sign your contract with Nominet to get your domain name you have to provide a postal address if you are a commercial entity. The contract does not allow for PO Box numbers.

G24 purchased g24.co.uk and gave a PO Box number. When I pointed this out to Nominet they wrote to G24 who ignored it until the last week before Nominet would have taken the domain name away. They replaced their PO Box address with a fake one - Harley Street in London of all places !!!!

I once again pointed this out to Nominet and once again G24 took it to the wire before they supplied their registered address. I can only guess as to why G24 were so reluctant to comply with the contract THEY had signed.

Boult22

Again - shout at me for my tardiness - just getting round to this.

A couple of good templates found on this forum (though I can't find the "how to win at popla2 sticky - has it changed its name?).

Interestingly, the POPLA form only has 4 allowable reasons for appeal - improperly parked, stolen, parking charge exceeded the appropriate amount and 'I am not liable'.....

Which of these do I tick?

In the meantime, I'll draught the letter and post on this thread for the experts to pull apart / tweak / approve.

Hot_Bring

Boult22 wrote: »

Again - shout at me for my tardiness - just getting round to this.

A couple of good templates found on this forum (though I can't find the "how to win at popla2 sticky - has it changed its name?).

Interestingly, the POPLA form only has 4 allowable reasons for appeal - improperly parked, stolen, parking charge exceeded the appropriate amount and 'I am not liable'.....

Which of these do I tick?

In the meantime, I'll draught the letter and post on this thread for the experts to pull apart / tweak / approve.

All except the "Stolen"

Boult22

OK - first draught - here goes - advice / criticism / suggested amends would be most welcome.

Constructed from a couple of other versions on this forum.

I've added a bit about inclement weather / convoluted approach to the car park in point 3.

Added a line into point 4 about the car park being 'free' and therefore any subsequent losses after any 'free' period) will need to be proven.

Contentious would be point 5 - only photo's show the car entering and leaving - NOT parked ??????

Added a line summing up point 6 suggesting that if the operator / PCC want to charge over and above the free period they should provide the means to do so.

Thanks in advance - Si.

I am the registered keeper of this vehicle and I am appealing against the above charge. I contend I am not liable for the charge that G24 are attempting to levy on the following grounds. I ask that all points are considered:-

1.Neither the parking company or their client has proved that they have planning consent to charge motorists for any alleged contravention.

2. 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.

3. The signage at the car park was not compliant with the British Parking Association standards and there was no valid contract between the parking company and the driver.

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

5. No evidence of the vehicle being parked has been provided.

6. Unfair terms.


Here are the detailed appeal points.

1. No right to charge motorists for overstaying

Planning consent is required for car parks and have conditions that grant permission as the car park provides a service to the community. To bring in time limits, charges and ANPR cameras, planning consent is required for this variation. I have no evidence that planning consent was obtained for this change and I put the parking company to strict proof to provide evidence that there is planning consent to cover the current parking conditions and chargeable regime in this car park.

2. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park, especially so during inclement weather as was, apparently, the case on this occasion. Additionally, the convoluted access to this car park also distracts a driver’s attention from noticing, reading assessing any information on the too high / too small signs on this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the operator is now demanding for inadvertently staying too long on an erstwhile ‘free’ car park.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

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

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre / retail outlet. Given that this particular car park is ‘free’ up to a certain time any subsequent losses will need to be proven.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

5. Throughout all communications with G24, a parking infringement has been alleged yet no evidence of the vehicle in question being parked has been given. The only ‘evidence’ is 2 enhanced (digitally manipulated?) photographs. One showing the car gaining entry to the site, 1 showing the car leaving the site, each with an alleged time stamp, neither showing the vehicle unattended and parked.

6. Unfair Terms

The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a 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.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing as the car park is advertised as ‘free’, but the operator failed to provide the means to pay any additional charge at the time. If they want to make additional charges over and above the ‘free’ parking, the operator / landowner should provide a method by which to pay in advance any foreseen additional fees. I contend the charge is an 'unfair financial burden' and unenforceable in view of my appeal points above

Coupon-mad

That's looking good (the 'How to win at POPLA' link mentioned before, is in post #3 in the 'Private Parking ticket? Newbies read these FAQs first!' sticky thread, BTW).

I would say you need an 'ANPR reliability' paragraph whenever it's a postal PCN which I assume this was without reading back in your thread again, as that's what G24 do! You could amalgamate it with your point #5 in fact. And I think the wording of the 'landowner contract' paragraph can be stronger as it needs to state more than the above version. So look at this one for starters, the landowner contract paragraph is stronger and there's an ANPR paragraph too that you can adapt:

https://forums.moneysavingexpert.com/discussion/4798215

And finally, I believe 'no GPEOL' should be point #1 and the Planning Consent paragraph more of an afterthought (a bit like the linked example having 'Business rates' as an afterthought!). Personally I would not actually include 'Planning Permission' (nor Business rates) unless in the rare occasion that there's reason and eveidence you could show, about the planning consent not matching the current parking regime. If you don't know, I wouldn't spend time on those points. I never mention them in POPLA appeals, personally, as I can't see it winning on that point without some evidence on your part (such as if you asked the Council & they said Planning Consent for that car park was based upon 3 hours free and yet the PPC has unilaterally reduced it - does happen but usually with ParkingEye we think). If that was the case then it would be worth including but IMHO not otherwise.

No 'GPEOL' or 'no contract/standing' will win this for you.

P.S. look, another poster is at your stage with G24 and you may like to compare POPLA appeals!

https://forums.moneysavingexpert.com/discussion/4861775

HTH

Boult22

Thanks CM et al!! You're stars! :-)
Amended letter below (addition re 'unlawful attempt at appearing as a Penalty Charge) - suggested / prompted by rizzoface's efforts.

I am the registered keeper of this vehicle and I am appealing against the above charge. I contend I am not liable for the charge that G24 are attempting to levy on the following grounds. I ask that all points are considered:-

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


2. 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.

3. The signage at the car park was not compliant with the British Parking Association standards resulting in no valid contract between the parking company and the driver.

4. No evidence of the vehicle being parked has been provided.

5 Unlawful attempt at appearing as a Penalty Charge

6. Unfair terms.


Here are the detailed appeal points.


1. Charge is NOT a genuine pre estimated loss.

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre / retail outlet. Given that this particular car park is ‘free’ up to a certain time any subsequent losses will need to be proven.

The parking company, G24, submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Note:- the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

The demand for £100.00 is punitive and inappropriate, and bears no relation to any loss that may have been incurred by the landowner. Therefore, I regard this charge as an unenforceable ‘penalty’.

It would, therefore, follow that as these charges are punitive and have an element of profit included, they are not seeking to redress any loss on behalf of the landowner and are not allowed to be imposed by parking companies.
On this point I respectfully request that this appeal is upheld and the charge dismissed.


2. No valid contract with landowner

It is widely known that some contracts between landowner and parking companies have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. Any parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and to enforce for breach of contract. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract. In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that a valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require that G24 Ltd must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.

Therefore, at this point, I believe there is no contract with the landowner/occupier that entitles G24 Ltd to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices. I put G24 Ltd to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the G24 Ltd produce to POPLA the contemporaneous and unredacted contract between the landowner and the G24 Ltd.
Even if a basic contract is produced and mentions PCN’s, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between G24 Ltd and the owner/occupier, containing nothing that G24 Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.
On this additional point, I respectfully request that this appeal is upheld and the charge dismissed.


3. The signage at the car park was not compliant with the BPA standards and therefore there was no valid contract between the parking company and the driver

Following receipt of the charge, I have personally visited the site in question. I believe the signs and any core parking terms that the parking company are relying upon were too high and too small for any driver to see, read or understand when driving into this car park, especially so during inclement weather as was, apparently, the case on this occasion. Additionally, the convoluted access to this car park also distracts a driver’s attention from noticing, reading and assessing any information on the too high / too small signs on this car park. The Operator, G24, needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Additionally, I believe that G24 should show the locations of any signage within the car park on this date, in relation to the location where the car was parked, thus supporting their assertion that I was aware of their attempt at establishing this unfair contract. Any terms displayed on any subsequent signs or notices do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise.

As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the operator is now demanding for inadvertently staying too long on an erstwhile ‘free’ car park.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
On this further additional point, I respectfully request that this appeal is upheld and the charge dismissed.


4. No evidence of parking.
Throughout all communications with G24, a parking infringement has been alleged yet no evidence of the vehicle in question being parked has been given. The only ‘evidence’ is 2 enhanced (digitally manipulated?) photographs. One showing the car gaining entry to the site, the other showing the car leaving the site, each with an alleged time stamp, neither showing the vehicle unattended and parked.
G24 Ltd are therefore obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice, version 3 of June 2013. Therefore, I require G24 Ltd to present records as to the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and times of any ANPR images and evidence to show that their integrity has not been compromised (e.g. images digitally altered / enhanced in support of G24’s claims). This is important because the entirety of the charge is founded on these two images purporting to show my vehicle entering and exiting at specific times (yet still not parked) – it's vital that G24 Ltd produce evidence in response to these points.
On this further additional point, I respectfully request that this appeal is upheld and the charge dismissed.


5. Unlawful attempt at appearing as a Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge (demanding monies by use of menaces or threats is frowned upon by the Police) by way of attempting to appear as an official (police or council) 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 could state that the letter is an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to that which Police and Council Wardens issue.
I therefore, again on this further point, respectfully request that my appeal is upheld and the charge dismissed.

6. Unfair Terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
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.”
5(1) ''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. (2) 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.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a 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.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing as the car park is advertised as ‘free’, but the operator failed to provide the means to pay any additional charge at the time. If they want to make additional charges over and above the ‘free’ parking, the operator / landowner should provide a method by which to pay in advance any foreseen additional fees. I contend the charge is an 'unfair financial burden' and unenforceable in view of my appeal points above.
On this final additional point, I respectfully request that this appeal is upheld and the charge dismissed.

Coupon-mad

That's nearly there now.

APNR should be ANPR.

and this title:

4. No evidence of the vehicle being parked has been provided.

should be

4. No evidence of the vehicle being parked and unreliable unsychronised ANPR system.

And I would change this:

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.

to this:

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a monetary element within the contract which would affect any 'loss' calculations, nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow G24 to pursue these charges in their own name as creditor in the Courts, and grant them the standing/assignment of title to make contracts with drivers. So I require the unredacted contract for all these stated reasons.

Boult22

Done - plus an addition recommended by a friend of a friend (unlit signage)


Thank you all - will let you know.

ps - now having my 'cynical' sense piqued - why would POPLA have a different appeals address to their 'registered' address?

Coupon-mad

I suppose for the same reason most 'companies' do. Although POPLA isn't a firm, nor a Govt Dept even though it is a service run by LondonCouncils.

Boult22

FYI - reply from POPLA - they've submitted the 'protest' to the PPC and therefore all is in abeyance awaiting their response.

Thanks all for the input so far. Si.