Got PCN need to POPLA appeal

tenpinn0

So my next steps will be to find out who the car park owner is and appeal directly to them and also send the PCN issuers a email telling them that "If you do reject the challenge and insist upon taking the matter further I must inform you that I may claim my expenses from you. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses, legal fees, etc. By continuing to pursue me you agree to pay these costs when I prevail. You have 7 days from the date of this email to cancel without occuring expenses otherwise i will then file my POPLA appeal."?

tenpinn0

OK got this, do i need to edit it any more?

"APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all 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. I paid money to park but did not recieve a ticket.

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. 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, rather than simply the nominal amount presumably due in a machine on site.

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 flowiing 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.

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. No ticket recieved

I attempted to purchase a ticket however the machine took my money and made a printing sound but no ticket came out, i attempted to phone both numbers on the notice board but one rang out and the other was just a automated system so i was left with little choice but to leave my car with no ticket as i had no other change and did everything in my power to avoid parking without a ticket.

This concludes my appeal.

Coupon-mad

tenpinn0 wrote: »

I haven't contacted the car park owner yet, i have been trying to find out who owns it and believe it is Castle Car Park Management Limited looking at Google What is the best way to find out?

Is it PCM, here?

http://forums.pepipoo.com/index.php?showtopic=73476

That thread gives some good contact details but ignore the fact it's an old 2012 one about a clamping (now illegal).

As for the POPLA appeal - get rid of the 'Planning Consent' part which I have no idea why so many people copy. Not relevant unless it was a fairly new development or a retail park (but I read it as Windsor Castle perhaps?). Clearly they have had their car park on site for years and this point won't win it, so delete this:

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.

And this bit makes no real sense, seeing as you've already said you were driving and must have read a sign to know to pay!

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, rather than simply the nominal amount presumably due in a machine on site.

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

So delete that (above).


And add to this bit, change your numbering as you will have lost point #1, and sort out the typo (should be 'received'):

4. No ticket received so the Operator has breached their contract with me under which, in acceptance of my payment, they must provide a driver with the means to display a physical ticket.

I attempted to purchase a ticket however the machine took my money and made a printing sound but no ticket came out. I attempted to phone both numbers on the notice board but no-one answered either of the two numbers. I had paid to park so I breached no contract - and if POPLA thinks I did then it was caused by the Operator's own failure to provide a ticket (so their breach of contract occurred first and caused the entire issue, and a contract works both ways between the parties). A company cannot profit from the failure/breach of its own processes and this Operator was required under the BPA CoP to check ticket records and machinery manually before issuing parking tickets, to avoid such errors. They failed in this requirement too, so this charge would not satisfy the requirement of 'reasonableness' under contract law.


Then it paves the way for this:


5. 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 I had paid, but the Operator failed to provide the means to display. They should have cancelled any tickets around the time that the printer/machine failed which they had a duty to identify when making manual checks of all machinery. I contend the charge is an 'unfair financial burden' and unenforceable in view of my appeal points above.

I request that POPLA upholds my appeal on any of the above grounds.

yours,


The registered keeper's name

tenpinn0

Thank you all for your help with this. It is Castle car park in Windsor, I checked that link however my searching i get the impression that Castle Car Park Management Limited is the owner, the company who gave me the ticket is UK Parking LTD. I have noticed both have the same address on Companies House both 13 KYNASTON CLOSE in Harrow. Is there any point going to the car park owner or should i assume the owner is the same as the parkign company and just go straight to POPLA.

If it is best to go straight to POPLA is the appeal below now good enough?

OK got this, do i need to edit it any more?

"APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.


1. 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.

2. 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.

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

4. I paid money to park but did not recieve a ticket.

5. Unfair terms.

Here are the detailed appeal points.


1. 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

2. 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. 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”.


3. 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 flowiing 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.

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.

4. No ticket received so the Operator has breached their contract with me under which, in acceptance of my payment, they must provide a driver with the means to display a physical ticket.

I attempted to purchase a ticket however the machine took my money and made a printing sound but no ticket came out. I attempted to phone both numbers on the notice board but no-one answered either of the two numbers. I had paid to park so I breached no contract - and if POPLA thinks I did then it was caused by the Operator's own failure to provide a ticket (so their breach of contract occurred first and caused the entire issue, and a contract works both ways between the parties). A company cannot profit from the failure/breach of its own processes and this Operator was required under the BPA CoP to check ticket records and machinery manually before issuing parking tickets, to avoid such errors. They failed in this requirement too, so this charge would not satisfy the requirement of 'reasonableness' under contract law.

5. 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 I had paid, but the Operator failed to provide the means to display. They should have cancelled any tickets around the time that the printer/machine failed which they had a duty to identify when making manual checks of all machinery. I contend the charge is an 'unfair financial burden' and unenforceable in view of my appeal points above.

I request that POPLA upholds my appeal on any of the above grounds.

yours,


The registered keeper's name

Coupon-mad

UK Parking Ltd, I have looked at a few threads about them and found they only joined the AOS in the Summer. It's a shame you appealed straight away because this thread shows they send 'late' Notice to Keeper letters (which you didn't wait for, so you missed a trick - should have appealed as KEEPER later on):

http://forums.pepipoo.com/index.php?showtopic=85946

Anyway even though you do seem to have outed yourself unnecessarily as the driver, we will give this POPLA appeal our usual best shot at a win!

A couple more changes needed I reckon, and questions:

- can you be certain the signage DID say the word 'breach' or 'failure to comply with terms'?

- Does the PCN and/or rejection reply state those words? Please quote it.


This needs a tweak and I have removed much of the blurb:

1. No valid contract with landowner

The British Parking Association (BPA) Code of Practice section 7 demands that an Operator has a valid landowner contract with mandatory clauses specifying the extent of the parking company’s authority. I require the parking company to produce a copy of the relevant contract with the landowner that shows POPLA and myself, specifically:
- that they have sufficient assignment of title to pursue charges in their own name in the courts, and
- that they have the landowner's authority to make contracts with drivers in their own right.
- I question whether the Operator may even receive payment (or make payment) to/from their client and so I will require the Operator to rebut this if no money changes hands and to show an unredacted contract so I can understand the detail & nature of the client/agent relationship.

A witness statement or letter of authority will not suffice in lieu of the relevant contract because there would be no detail of contract terms/limit of authority/any money paid for the service - and no proof that the alleged signatory has ever seen the relevant contract, or is even an employee of the landowner. I say that this Operator is a mere agent of the landowner/occupier at best, giving them no legal standing to enable their actions or operation to legally impact upon a visiting driver.

And this needed some changes (I don't believe in teaching a PPC how to word their loss calculation!) so how about:

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

The wording on the signs and letter/PCN 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 entirely based upon loss flowing from a breach of the parking terms. For example, were no breach to have occurred then the cost of parking enforcement would still have been the same. And until I see the contract I cannot be sure whether money changes hands within their commercial agreement at this site - if so, then this will also need to be balanced against alleged 'loss'. I require the parking company to submit a breakdown of how their alleged 'loss' has been calculated. All of these costs must represent a loss or liquidated damages, directly resulting from the alleged breach at the very point of the alleged contract being formed. As payment was made and the only 'fault' was on the part of the Operator in not providing a ticket to display, there was no monetary loss whatsoever.

tenpinn0

Yeah I probably should of checked first, I stupidly assumed that I had a chance at a appeal, oh well lesson learnt. Thank you for your continued help with this.

I cannot be sure what the signage says but the rejection letter says "the appeal has been rejected as a breach of the Terms and conditions of parking occurred" Is it worth me popping back to the car park and rereading the signs? It's not that far away and is free to park in the car park next to it from 9PM.

tenpinn0

Ok is this ready for POPLA?

"APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2013, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.


1. 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.

2. 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.

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

4. I paid money to park but did not recieve a ticket.

5. Unfair terms.

Here are the detailed appeal points.


1. No valid contract with landowner

The British Parking Association (BPA) Code of Practice section 7 demands that an Operator has a valid landowner contract with mandatory clauses specifying the extent of the parking company’s authority. I require the parking company to produce a copy of the relevant contract with the landowner that shows POPLA and myself, specifically:
- that they have sufficient assignment of title to pursue charges in their own name in the courts, and
- that they have the landowner's authority to make contracts with drivers in their own right.
- I question whether the Operator may even receive payment (or make payment) to/from their client and so I will require the Operator to rebut this if no money changes hands and to show an unredacted contract so I can understand the detail & nature of the client/agent relationship.

A witness statement or letter of authority will not suffice in lieu of the relevant contract because there would be no detail of contract terms/limit of authority/any money paid for the service - and no proof that the alleged signatory has ever seen the relevant contract, or is even an employee of the landowner. I say that this Operator is a mere agent of the landowner/occupier at best, giving them no legal standing to enable their actions or operation to legally impact upon a visiting driver.


2. 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. 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”.


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

The wording on the signs and letter/PCN 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 entirely based upon loss flowing from a breach of the parking terms. For example, were no breach to have occurred then the cost of parking enforcement would still have been the same. And until I see the contract I cannot be sure whether money changes hands within their commercial agreement at this site - if so, then this will also need to be balanced against alleged 'loss'. I require the parking company to submit a breakdown of how their alleged 'loss' has been calculated. All of these costs must represent a loss or liquidated damages, directly resulting from the alleged breach at the very point of the alleged contract being formed. As payment was made and the only 'fault' was on the part of the Operator in not providing a ticket to display, there was no monetary loss whatsoever.


4. No ticket received so the Operator has breached their contract with me under which, in acceptance of my payment, they must provide a driver with the means to display a physical ticket.

I attempted to purchase a ticket however the machine took my money and made a printing sound but no ticket came out. I attempted to phone both numbers on the notice board but no-one answered either of the two numbers. I had paid to park so I breached no contract - and if POPLA thinks I did then it was caused by the Operator's own failure to provide a ticket (so their breach of contract occurred first and caused the entire issue, and a contract works both ways between the parties). A company cannot profit from the failure/breach of its own processes and this Operator was required under the BPA CoP to check ticket records and machinery manually before issuing parking tickets, to avoid such errors. They failed in this requirement too, so this charge would not satisfy the requirement of 'reasonableness' under contract law.


5. 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 I had paid, but the Operator failed to provide the means to display. They should have cancelled any tickets around the time that the printer/machine failed which they had a duty to identify when making manual checks of all machinery. I contend the charge is an 'unfair financial burden' and unenforceable in view of my appeal points above.

I request that POPLA upholds my appeal on any of the above grounds.

yours,


The registered keeper's name

Coupon-mad

Go for it, I reckon. Looks fine to me.

tenpinn0

Perfect, thank you very much for your help :-), how long do POPLA appeals normally take to come back?

Coupon-mad

6/7 weeks approx! Should get your win in early March.