Ncp refused appeal

dollypeeps

Thank you coupon mad.
I'll look to amalgamate those points tomorrow and delete that line.

Once I've done that I will tidy it up and post it, in all it's glory!

Karen

dollypeeps

I amappealing against the PCN no XXxxxxxxxxon the following grounds –



1 That your claim is not a GenuinePre-Estimate of Loss

The car parking fee for 24 hours was £7.30 on 7thDecember 2013 and this was paid for in full at 8.19am. On the date of theclaimed loss, the car park was not at 100% capacity and there was no physicaldamage caused. There cannot have beenany loss from this incident. Neither canNPC lawfully include their operational day to day running costs in any “loss”claimed. I contend there can be no loss whatsoever.

2Contract With The Landowner - Not Compliant With The BPA Code Of Practice And NoLegal Status To Offer Parking Or Enforce Charges

NCP do not own this car park and are assumed to be merely agents for the owneror legal occupier. In their Notice and in the rejection letters, NCP havenot provided me with any evidence that it is lawfully entitled to demand moneyfrom a driver or keeper, since they do not own nor have any interest orassignment of title of the land in question.

I would also request that POPLA to please check whether NCP haveprovided a full copy of the actual contemporaneous, signed & dated contractwith the landowner/occupier (not just a signed slip of paper saying it existsor someone has witnessed it) and check that it specifically enables thisOperator to pursue parking charges in their own name and through the courtsystem. I say that any contract is not compliant with the requirements set outin the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enterinto a contract with a driver of a vehicle parking in the car park, or indeedthe legal standing to allege a breach of contract. I refer the Adjudicator tothe recent Appeal Court decision in the case of Vehicle Control Services (VCS)v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was todetermine the actual nature of Private Parking Charges. It was stated that:"If those charges are consideration for a supply of goods or services,they will be subject to VAT. If, on the other hand, they are damages they willnot be." The ruling of the Court was that "I would hold, therefore,that the monies that VCS collected from motorists by enforcement of parkingcharges were not consideration moving from the landowner in return for thesupply of parking services." In other words, they are not, as the Operatorasserts, a contractual term. If they were a contractual term, the Operatorwould have to provide a VAT invoice, to provide a means of payment at the pointof supply, and to account to HMRC for the VAT element of the charge. TheAppellant asserts that these requirements have not been met. It must thereforebe concluded that the Operator's charges are in fact damages, or penalties, forwhich the Operator must demonstrate his actual, or pre-estimated, losses, as setout above.



3 NoContract With The Driver And Unclear or Inadequate and Non-Compliant Signage

There is no contract between NCP and the driver, but even if there was acontract then it is unfair as defined in the Unfair Terms in Consumer ContractsRegulations 1999.. So the requirements of forming a contract such as a meetingof minds, agreement, certainty of terms, etc, were not satisfied.

Due totheir position, overall small size and the barely legible size of the smallprint the signs in this car park are very hard to read and understand.

I contendthat the signs and any core parking terms NCP are relying upon were too smallfor any driver to see, read or understand. I request that POPLA check the operator’s evidence and signagemap/photos on this point and compare the signs with the BPA code ofpractice. I contend that the signs onthis land (ie wording, position, clarity) do not comply and fail to properlywarn or inform the driver of the terms and any consequences for breach as inthe case of Excel Parking Services v Martin Cutts and Waltham Forest v Vine(CCRTF 98/1290/B2)



4 Not Given The Correct Time To Appeal

Theverification code xxxxxxxxxx was generated by NCP on Tuesday 31stDecember 2013. The appeal rejection letter from NCP was dated Thursday 2ndJanuary 2014 and received on Saturday 4th January 2014. Therefore Iinform you that I have not been given the full 28 days to appeal, to which I amentitled under the BPA code of practice.



Given theabove points, I request that PCN number XXxxxxxxxx is rescinded and thatletters of confirmation are sent to NCP and to the above address asverification that this case has been over ruled.



Yourssincerely


This is the third draft and ive amended it accordingly. hopefully this will be ok to send off

karen

Coupon-mad

I have tweaked it to add the Unfair Contract Term as a separate point seeing as NCP were telling you that one of two similar pieces of paper was meant to be displayed and yet I doubt they can show the signage made this clear. So maybe:





Dear POPLA,
Re POPLA code xxxxxxxxxx

I am appealing against the PCN no XXxxxxxxxx on the following grounds –

1 That the charge by NCP is not a GenuinePre-Estimate of Loss
The car parking fee for 24 hours was £7.30 on 7th December 2013 and this was paid for in full around 8.19am. On the date of the claimed loss, the car park was not at 100% capacity and there was no physical damage caused. There cannot have been any loss from this incident. Neither canNCP lawfully include their operational day to day running costs in any “loss” claimed. NCP's ticket states the charge is for alleged 'breach of contract' which under the BPA Code of Practice must ONLY reflect a genuine pre-estimate of loss.

2 Contract With The Landowner - Not Compliant With The BPA Code Of Practice And No Legal Status To Offer Parking Or Enforce Charges
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. NCP do not own this car park and are understood to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, NCP have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

NCP must provide a full unredacted copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it). The contract must specifically enable this Operator to pursue parking charges in this car park in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice. Further, it is merely a commercial agreement between NCP as agent, required merely to carry out a 'service' and act 'on behalf of' the Train Operator, with nothing in that contract being capable of assigning to NCP any title that would enable them to create a contract with a driver in their own right nor to allege any loss, breach or trespass.

3 No Contract With The Driver And Unclear/Inadequate Signage
There is no contract between NCP and the driver. I contend that the signs and any core parking terms NCP are relying upon were confusing, unfair and the details were in font too small for any driver to read or understand, specifically in terms of any small print about which piece of paper to display. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

The machine only issued one piece of paper (a receipt, it now transpires) so the transaction was either an example of negligence or fault on the part of NCP, rendering any contract unfair. The machine did not provide the driver with the means to display any other piece of paper. Apparently I am now told by NCP this was the 'wrong piece of paper' however I believe the sign does not stipulate this, so the terms are unfair because they are not clear and transparent.

NCP cannot unilaterally add requirements to a contract to tell me as keeper now that the driver should have 'displayed a certain piece of paper out of two' if the signage did not stipulate which piece of paper to display, at the time of the alleged contract. Both could be described as 'tickets' as the appearance of the paper tokens are similar - and the driver only received one 'ticket' from the machine this time - so the driver did 'pay and display a ticket' insofar as the signage dictated at the time. This contract term by NCP cannot be enforced because it failed to satisfy the requirement of reasonableness and failed to show due regard for the legitimate interests of consumers.

4. Breach of Unfair Contract Terms Act 1977 and breach of Unfair Terms in Consumer Contract Regulations 1999
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.’

The terms that the Operator imposed were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. There is no contract between the Operator & motorist in this instance but even if POPLA believes there was likely to be a contract, then it is unfair.

In the Unfair Terms in Consumer Contracts Regulations 1999:-
''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.''

The Office of Fair Trading, Unfair Contract Terms Guidance:
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...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.' I contend this describes the charge exactly as an 'unfair financial burden' which produces the same effect as a penalty clause. The charge is designed ostensibly to be a deterrent, but is clearly a disguised penalty and issued to amass revenue for a third party 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 true liquidated damages or loss (which was nothing).

5. Not Given The Correct Time To Appeal to POPLA; NCP delayed the issue of the already-generated POPLA code
The verification code xxxxxxxxxx was generated by NCP on Tuesday 31st December 2013. The appeal rejection letter from NCP was dated Thursday 2nd January 2014 and received on Saturday 4th January 2014. Therefore I inform you that I have not been given the full 28 days to appeal, to which I am entitled under the BPA code of practice. Please report this matter to the BPA as an unfair business practice and breach of their CoP.

Given the above points, I request that PCN number XXxxxxxxxx is rescinded and that a letter of confirmation is sent to NCP and to the above address as verification that this appeal has been upheld.

Yours faithfully









If you submit it online it is best we think, to save it using Notepad (not word) before putting it in the POPLA submission inbox, as it seems to go to a strange one block of text format otherwise.

dollypeeps

Thank you so much for your help. I will get this printed out along with the copies of the ticket and send it off as soon as.

Thank you again and hopefully that will be the end of it.

karen

dollypeeps

Appeal emailed yesterdayto POPLA. What a palaver!!!!! Trying to upload the photo of the ticket for evidence!!!!!!
Anyway all done now and I had a reply to say that they are requesting evidence from NCP which will be sent to POPLA and myself before the scheduled date of the hearing.
My appeal will be considered on or soon after 19th February and I should then be notified.
Thats rather a long wait though.

Karen x

kirkbyinfurnesslad_2

You could have not bothered with the ticket etc

dollypeeps

wouldnt they have requested this anyway?

karen

Coupon-mad

Nope because that point is NOT about the fact you paid for/had a ticket, it's about whether it was displayed. Doesn't matter anyway, you will win on another point.

dollypeeps

Ok thank you everyone. I have to wait until February 19th or after for a verdict.

Karen

hollie.weimeraner

dollypeeps wrote: »

Appeal emailed yesterdayto POPLA. What a palaver!!!!! Trying to upload the photo of the ticket for evidence!!!!!!
Anyway all done now and I had a reply to say that they are requesting evidence from NCP which will be sent to POPLA and myself before the scheduled date of the hearing.
My appeal will be considered on or soon after 19th February and I should then be notified.
Thats rather a long wait though.

Karen x

Hi I emailed a POPLA appeal yesterday and had an email response but no date of appeal, just a summary of my evidence. Strange?