post

Redx

not just me m8, I suspect that several others have also "lost the will to live" and I for one am still not sure if you are being obtuse or deliberately "missing the point" in this saga

like a few other members , I too "have lost the will to live" now due to this thread and one or two others this week and today

reading is a basic skill a lot of people seem to have lost

I am also quite sure that when you tell your kids not to do something, it annoys you when they keep on doing it over and over again

so given what you have done , now read and follow post #50 (just below the green quote)

dave.b

My POPLA appeal darft what do you thing
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 UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance or exists to any of the shops.

I contend that the signs and any core parking terms JAS are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])
2 CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

JAS do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS 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.

I would also request that POPLA to please check whether JAS have provided a full 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) and check that it specifically enables this Operator to pursue parking charges 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.

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. I refer the Adjudicator to the 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 to determine 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 will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

JAS also make reference in their appeal refusal of 7/1/2014 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.


3 NO CONTRACT WITH THE DRIVER

There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.
4 UNFAIR TERMS

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."
5 UNREASONABLE

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”
6 NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at xx% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can JAS lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £5.00 for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by about 45% by early payment that it is unreasonable to begin with.
7 UNLAWFUL 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 to impersonate a 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 the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
8 FAILED TO COMPLY WITH INITIAL REQUEST FOR A POPLA CODE

I contacted JAS on 3/1/2014 and clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently as per the BPA Code of Practice.They sent me a POPLA verification code which was wrong or bogus.I emailed them on 17/1/2014 telling them the verification code was wrong or bogus and emailed BPA telling them the same. They went on to further attempt to bully me by “ advised that if you opt for independent arbitration of your case, the ability to pay the parking charge at the reduced rate will be at end. If you opt to pay the parking charge you will be unable to appeal to POPLA.” “If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.”
SUMMARY

On the basis of all the 8 points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.
Yours xxxxxxx

Coupon-mad

It is looking better!


A typo - Bogas should be 'bogus'


and this bit should surely be removed because it's not an ANPR camera car park is it?


''I further contend that JAS have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence.''

bod1467

"I emailed them on 17/1/2014 telling them the was wrong or bogus"

The what?

dave.b

Hello again, just got a email from JSA with my verification code.
They have sent me the same code, I entered the code in the
code checker and the details are the same that I have 379 days
to appeal.Should I just use the code or send another email to JSA saying the code is wrong,it does not look like they have checked it just sent it out again.
I have also got a email off BPA asking for ticket detail ,where the charge was issued date and any correspondence which may have been exchanged.Where do I go from here

Redx

you tried and failed, so copy it over to s clark (or the BPA) with all the details and mention this has now happened twice as they gave you the same number again

so basically, place it in the hands of the BPA and see what they do about it

then edit your appeal in post #53 to add the missing word or words mentioned by BOD1467 in post #54

once that is done your appeal to popla is fine as it is, assuming you ever get a valid code

I now believe you have sorted out your head judging by that appeal which is good considering the previous posts, so well done on that aspect

all you need now is a proper popla code so that you can submit it and win at popla

so you wait for the BPA to get back to you, and if JAS send you another code that is different, use the online checker again to ensure its valid ( 28 days or less, not over three hundred) , then submit your revised popla appeal to popla, and let them cancel this outrageous charge on your behalf

bod1467

Question - has anyone else received a 2014 POPLA code? Can they confirm that theirs was valid?

Reason - the OP's code has a number >365, suggesting the Days count for POPLA codes starts Jan 1st 2013. Is this incorrect (hence the code is wrong), or it it actually correct and the Code Checker is wrong?

Redx

I was wondering that myself , I was hoping somebody with a code from another PPC could check it for comparison , as clearly one or the other is wrong

bod1467

It's JAS causing the problem. Another recent POPLA code is valid.

https://forums.moneysavingexpert.com/discussion/comment/64404015#Comment_64404015

Redx

seems to me that they are using a 2013 popla code generator of some sort and havent changed it for a 2014 code generator, or they havent a clue what they are doing

hopefully the complaint to the BPA will get some action and stop this happening to anyone else that JAS issue popla codes to

hopefully the BPA will also remind them of the CoP , especially with these new CoP rules (or reiteration of the rules) as regards issuing correct codes to people like dave.b in the first place, never mind the other 3 they are being reminded of