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N*pier POPLA Appeal Rejected - Initial Appeal & Response
Shinkansen
Posts: 20 Forumite
Sorry for taking so long getting this onto the forum. This is the original appeal to POPLA that was submitted and their response. The appeal was rejected. Strange considering that I have seen many, many other POPLA appeals succeed on the GPEoL route.
Things I have learned since this initial appeal:
- The land is owned by a sister company of N*pier Parking and as such appears to have struck out my "contract with landowner" point. A witness statement was submitted as their counter evidence by the CEO, as he is CEO of the Parking Company and the other weird company which owns the land. I did request a formal signed contract as opposed to screen prints of Companies House registrations and a witness statement.
- The much-quoted VCS Court decision was changed at a later date.
- A 6-page document called "Business Model and Pre-Estimate of Loss" outlines the importance of recovering FCN's to N*pier's business model appears to have been accepted by this assessor as evidence and justification of GPEoL. In it, the CEO of the company appears to claim that he personally spends 2hrs of his time (chargeable at £40 per hour) on each and every appeal. There is also an entire paragraph on "Capital Costs" talking about the cost of asphalting the car park, the depreciation costs, ticketing machinery, insurance, signage, the running costs of a vehicle to patrol multiple car parks, administration and office costs!!!
This document also clearly states that "... it would be disproportionately expensive for N*pier to have to precisely calculate the costs of running the car park where the Fixed Charge Notice was issued, since to do so would require many hours of work by an accountant."
It also states in this document "The Fixed Charge Notice represents damages for breach of contract."
Any thoughts?
SHiNK
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From: [EMAIL="web@londoncouncils.gov.uk"]web@londoncouncils.gov.uk[/EMAIL]
To:
Date:
Subject: POPLA Appeals Submission - Code:
Thank you for your appeal. Please find a summary of your details below:
Vehicle registration:
Verification code:
Operator code:
PCN number:
Name:
Email address:
Telephone number:
Address:
Why they are appealing:
Parked improperly
Charge exceeded
Not liable
Appeal reasons:
I am writing to you as the Registered Keeper of the above vehicle (XXXX XXXX) to appeal a charge sent to me by N*pier Parking LTD for an alleged parking offence that took place on the xx August 2013. The reasons for my appeal are summarised below.
1. CONTRACT WITH THE LANDOWNER - NON-COMPLIANCE WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
It transpires from the specific terms and conditions on N*pier Parking LTD's website that they do not own the land on which the XXXX Car Park operates. N*pier Parking Limited are acting as agents for the owner/occupier. In the Notice to Keeper and their Rejection of Representations, N*pier Parking Limited has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. I do not believe that N*pier Parking Limited has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012). I require N*pier Parking Limited to produce an unredacted, up-to-date and signed copy of the contract or agreement with the landowner – one which states that they are entitled to pursue these matters through issuing PCNs and through the courts. I require that this is an actual copy and not simply a document which claims that such a contract or agreement exists. That contract should also be compliant with the requirements set out in the BPA Code of Practice.
2. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
N*pier Parking Limited are clearly attempting to enforce this "charge" under paragraph B 19.5 of the BPA Code of Practice and therefore must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'. I contend there has been no pre-estimate prepared or considered in advance, especially considering that the same sum of £90 "damages" is used at multiple car parks in different areas of the country by N*pier Parking Limited. The operator is not lawfully permitted to include their operational day-to-day running costs in any 'loss' claimed or any detailed appraisals presented.
3. UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at disguising a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). This transparently punitive charge by N*pier Parking Limited is therefore unenforceable in law. The charge is completely disproportionate and accordingly not in line with Schedule 2(1)(e) of The Unfair Terms in Consumer Contracts Regulations 1999, nor as described in the BPA Code of Practice.
For the reasons above I respectfully request that this appeal be allowed.
- - - - - - - - - - - - - - - - - - - - - -
Reasons for the Assessor’s Determination
On XXX 2013 at XXX XXX car park, the appellant was issued
with a parking charge notice for breaching the terms and conditions of the parking site.
It is the operator’s case that the appellant’s vehicle was parked without displaying a valid parking ticket despite signage at the site to indicate that this was necessary to do so. There is photographic evidence to support that there was adequate signage at the site to inform motorists of the parking terms and conditions. There is also photographic evidence to support that at the time that the parking charge notice was issued the appellant’s vehicle was not displaying a valid ticket.
It is the appellant’s case that the parking charge notice is not a genuine preestimate of loss. The appellant has also questioned the operator’s contract with the landowner.
In consideration of all of the evidence before me, I find that there is clear evidence to support that at the time that the parking charge notice was issued, the appellant’s vehicle was not displaying a valid ticket. The appellant was therefore in breach of the parking terms and conditions. There was clear and adequate signage at the parking site informing motorists of the parking terms and conditions. It is the responsibility of the motorist to ensure that they comply with all terms and conditions of parking.
The operator has submitted a witness statement to rebut the appellant’s submission that the operator has no contract with the landowner. This shows that the operator does hold the authority to issue the parking charge notice. I accept this evidence.
In response to the appellant’s submission that the parking charge is not a genuine pre-estimate of loss, the operator has made several submissions which show the consequential losses arising from the
appellant’s breach. The operator has submitted that the parking charge notice represents costs including the DVLA fee, approximately 3 hours of staff time spent on the case file, costs incurred in processing the case and the costs of legal advice. I find that the operator on this occasion has shown that the parking charge is a genuine pre-estimate of loss.
Accordingly, this appeal is refused.
Farah Ahmad
Assessor
- - - - - - - - - - - - - - - - - - - - - -
Things I have learned since this initial appeal:
- The land is owned by a sister company of N*pier Parking and as such appears to have struck out my "contract with landowner" point. A witness statement was submitted as their counter evidence by the CEO, as he is CEO of the Parking Company and the other weird company which owns the land. I did request a formal signed contract as opposed to screen prints of Companies House registrations and a witness statement.
- The much-quoted VCS Court decision was changed at a later date.
- A 6-page document called "Business Model and Pre-Estimate of Loss" outlines the importance of recovering FCN's to N*pier's business model appears to have been accepted by this assessor as evidence and justification of GPEoL. In it, the CEO of the company appears to claim that he personally spends 2hrs of his time (chargeable at £40 per hour) on each and every appeal. There is also an entire paragraph on "Capital Costs" talking about the cost of asphalting the car park, the depreciation costs, ticketing machinery, insurance, signage, the running costs of a vehicle to patrol multiple car parks, administration and office costs!!!
This document also clearly states that "... it would be disproportionately expensive for N*pier to have to precisely calculate the costs of running the car park where the Fixed Charge Notice was issued, since to do so would require many hours of work by an accountant."
It also states in this document "The Fixed Charge Notice represents damages for breach of contract."
Any thoughts?
SHiNK
- - - - - - - - - - - - - - - - - - - - - -
From: [EMAIL="web@londoncouncils.gov.uk"]web@londoncouncils.gov.uk[/EMAIL]
To:
Date:
Subject: POPLA Appeals Submission - Code:
Thank you for your appeal. Please find a summary of your details below:
Vehicle registration:
Verification code:
Operator code:
PCN number:
Name:
Email address:
Telephone number:
Address:
Why they are appealing:
Parked improperly
Charge exceeded
Not liable
Appeal reasons:
I am writing to you as the Registered Keeper of the above vehicle (XXXX XXXX) to appeal a charge sent to me by N*pier Parking LTD for an alleged parking offence that took place on the xx August 2013. The reasons for my appeal are summarised below.
1. CONTRACT WITH THE LANDOWNER - NON-COMPLIANCE WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
It transpires from the specific terms and conditions on N*pier Parking LTD's website that they do not own the land on which the XXXX Car Park operates. N*pier Parking Limited are acting as agents for the owner/occupier. In the Notice to Keeper and their Rejection of Representations, N*pier Parking Limited has not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of title of the land in question. I do not believe that N*pier Parking Limited has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012). I require N*pier Parking Limited to produce an unredacted, up-to-date and signed copy of the contract or agreement with the landowner – one which states that they are entitled to pursue these matters through issuing PCNs and through the courts. I require that this is an actual copy and not simply a document which claims that such a contract or agreement exists. That contract should also be compliant with the requirements set out in the BPA Code of Practice.
2. NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
N*pier Parking Limited are clearly attempting to enforce this "charge" under paragraph B 19.5 of the BPA Code of Practice and therefore must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'. I contend there has been no pre-estimate prepared or considered in advance, especially considering that the same sum of £90 "damages" is used at multiple car parks in different areas of the country by N*pier Parking Limited. The operator is not lawfully permitted to include their operational day-to-day running costs in any 'loss' claimed or any detailed appraisals presented.
3. UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at disguising a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). This transparently punitive charge by N*pier Parking Limited is therefore unenforceable in law. The charge is completely disproportionate and accordingly not in line with Schedule 2(1)(e) of The Unfair Terms in Consumer Contracts Regulations 1999, nor as described in the BPA Code of Practice.
For the reasons above I respectfully request that this appeal be allowed.
- - - - - - - - - - - - - - - - - - - - - -
Reasons for the Assessor’s Determination
On XXX 2013 at XXX XXX car park, the appellant was issued
with a parking charge notice for breaching the terms and conditions of the parking site.
It is the operator’s case that the appellant’s vehicle was parked without displaying a valid parking ticket despite signage at the site to indicate that this was necessary to do so. There is photographic evidence to support that there was adequate signage at the site to inform motorists of the parking terms and conditions. There is also photographic evidence to support that at the time that the parking charge notice was issued the appellant’s vehicle was not displaying a valid ticket.
It is the appellant’s case that the parking charge notice is not a genuine preestimate of loss. The appellant has also questioned the operator’s contract with the landowner.
In consideration of all of the evidence before me, I find that there is clear evidence to support that at the time that the parking charge notice was issued, the appellant’s vehicle was not displaying a valid ticket. The appellant was therefore in breach of the parking terms and conditions. There was clear and adequate signage at the parking site informing motorists of the parking terms and conditions. It is the responsibility of the motorist to ensure that they comply with all terms and conditions of parking.
The operator has submitted a witness statement to rebut the appellant’s submission that the operator has no contract with the landowner. This shows that the operator does hold the authority to issue the parking charge notice. I accept this evidence.
In response to the appellant’s submission that the parking charge is not a genuine pre-estimate of loss, the operator has made several submissions which show the consequential losses arising from the
appellant’s breach. The operator has submitted that the parking charge notice represents costs including the DVLA fee, approximately 3 hours of staff time spent on the case file, costs incurred in processing the case and the costs of legal advice. I find that the operator on this occasion has shown that the parking charge is a genuine pre-estimate of loss.
Accordingly, this appeal is refused.
Farah Ahmad
Assessor
- - - - - - - - - - - - - - - - - - - - - -
0
Comments
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same assessor in this one too https://forums.moneysavingexpert.com/discussion/4811265
Although CM has warned about this company in her sticky threads and various comments as regards landowner issues etcJust be careful if your PPC is someone like Napier, Combined Parking Solutions or another one which words their signage as a contractual fee to park (rather than 'breach of contract'). But most of the others are fairly standard to beat:
from here https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281
0 -
Hi - Can you tell us which car park this was though as interesting information has come to light recently.0
-
One has to wonder why, if the recovery of FCN's is so important to Napier's operation and causes them so much loss why they issue them in the first place? It is the duty of all parties to proceedings to minimise their costs and, according to Napier's representations it seems that they have willingly incurred these additional costs when, rather than running up costs - which they may not be able to recover - they don't simply bite the bullet and install a barrier system? And what about deterrence?My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).
For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com0 -
I suspect this https://forums.moneysavingexpert.com/discussion/4834407 was the original thread0
-
Yes but Redx - surely you haven't forgotten Boston already. Also I've been digging around some of their other car parks .....
So OP can you please tell us which car park this is?0 -
4consumerrights wrote: »Yes but Redx - surely you haven't forgotten Boston already. Also I've been digging around some of their other car parks .....
So OP can you please tell us which car park this is?
no I hadnt, it was foremost in my mind, except I remembered reading this one some time ago, then the assessor name rang a bell and it was that member in Japan, so when I realised that this may be the old thread resurrected I dismissed Boston - Lincs as a possibility for this particular car park, especially with the who owns what claims appearing to be different, then did a search for the original thread (found 2 actually, here is the first one https://forums.moneysavingexpert.com/discussion/4784182)
so that is 3 threads all following on from the same incident and appeals
but I agree it would be an idea on knowing the car park in question0 -
So that's that then. It was only a matter of time before the PoPLA kangaroo court trumped up a way of avoiding the GPEOL trap. Once PE has analysed this and decided to copy it then the PoPLA silver bullets will have run out and PoPLA will be seen to be the sham it always was.
Which is not to say I agree with PoPLA. The legal term for Napier's reasoning and the assessor's acceptance of it is "bollox". But then, "bollox" is what you get when you put your faith in kangaroo courts.Je suis Charlie.0 -
I don't usually need to contradict C-M but this is incorrect. The T&Cs for every Napier car park claim their charges are for breach of contract. http://www.napierparking.co.uk/napier-car-parks/terms/same assessor in this one too https://forums.moneysavingexpert.com/discussion/4811265
Although CM has warned about this company in her sticky threads and various comments as regards landowner issues etc
from here https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281
[/B]
The relevant paragraph for the Boston car park is typical[b) “Fixed Charge Notice” is the document by which we notify you of the additional charges which the driver of a vehicle has incurred as a result of any breach of these Terms and Conditions of Parking. This has the same meaning as a Parking Charge Notice [“PCN”] for the purpose of an appeal to POPLA.0 -
talking about the sticky threads for a second, I have had the LBCCC-FIGHTBACK thread tidied up and all irrelevant posts removed to a dump thread similar to what we had done to the NEWBIES thread , so if there was an LBCCC etc in this case then the LBCCC thread by daisy is now much tidier and easier to follow as most of the paperwork there is on page 1 now
I can also see that the NEWBIES thread is going to be tidied and "improved" by CM so maybe this info will mean it gets updated , but this thread is all part of the previous two threads and not a new case as such, we already knew about it but the OP has taken a long time to return to the previous discussion
I suppose they all need merging into one thread for clarity which is easy to do if you have the power , especially in VBB0 -
So, when do Napier incur these costs? The POPLA assessor has accepted that the full £90 / £100 (or whatever it was) charge is represented by the time spent by the CEO and Napier staff in processing the appeal.
If the OP had ignored the NtD / NtK, the charge would have jumped to £90 / £100 anyway, but surely at that stage the only amount spent by Napier would be the small DVLA cost and the cost of one template letter!! And what about the NtD stage? Surely at that stage their costs were nothing so what does the amount they are claiming then represent.
It really doesn't add up does it?0
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