Independent Adjudicator Appeal

JustRaider

Hi,

Thanks All for your advice on constructing a letter to the PPC
in order to obtain a POPLA code. It worked ! and your help has
been well appreciated.

I've been reading the latest POPLA decision daily now for the past week.
Also, I've read the excellent advice in "**NEWBIES!! PRIVATE PARKING TICKET? OLD OR NEW?

**READ THESE FAQS FIRST!**" which provides good information on writing POPLA appeals.

I have now drafted my POPLA appeal letter. If anyone could review this that would be fine.

I just need to check that I haven't made any mistakes or missed something vital out of this

appeal before I send it to POPLA. Also not sure if it's too long for submitting
through the POPLA on-line process. In which case, I'll need to shorten it. Here it is ................

APPEAL RE: xxxxxxx , CHARGE – Invalid Ticket Displayed
CAR PARK - xxxxxxxxxxxxx , VEHICLE REG - xxxxxxxxx

POPLA Code : xxxxxxxxxxxxxxxx

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.

The PCN states the reason for the parking charge was displaying an "invalid ticket",
in a ‘Pay and Display’ managed car park. The ticket had been purchased earlier in the evening from 'street parking' in xxxxxxxxx, and hadn't been moved from the dashboard.

On entering the car park the driver was unable to read the Entrance sign as it was so high up. After parking the car, the driver walked over to the Entrance sign to read it. However, the wording on the Entrance sign was so misleading that the driver believed the car park was not managed.

My appeal will be based on the following points:

a) Insufficient and Misleading Signage.
b) Failure of the Operator to adhere to POFA2012 rules for Keeper Liability
c) The amount demanded is not a Genuine Pre-estimate of loss
d) Authority to Issue a Parking Charge Notice
e) Unfair Charges

Below are the detailed appeal points :

• Insufficient and Misleading Signage

The following extracts are from the BPA Code of Practice concerning
car park signage :

18.2 states :

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must be telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

Appendix B - Entrance Signs states :

“As well as the AOS logo, signs at the entrance to the parking area must
clearly show the type of parking, and when and how any payment should be
made.”

“The Operator must always mention that terms and conditions apply and say
where drivers can find more details – this will usually be on the other notices
in the parking area.”

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.”

I will now present my evidence to establish that the Operator has breached the BPA Code of Practice for Signage on several points.

The parking incident occurred around in the evening when it was dark. The driver entered the car park which was poorly illuminated during a period of heavy rain. The car was parked a short distance from the entrance sign, and this was the only sign that the driver observed on the way to the relevant parking bay. Please bear this in mind when reading the evidence below.

The entrance sign is situated to the left side of the entrance of the car park.
Please see photo number.1 in Appendix A.
The sign is high up on a pole and on the left hand side of the road, so a driver would find it difficult to read on entering the car park.
After receiving the PCN, the driver walked around the car park and discovered
the following failings in the above BPA Code of Practice rules :

i) The entrance sign didn’t contain the wording ‘Pay and Display’.

ii) The entrance sign did not state the car park was managed, as the
Operators Name was not displayed. Also, the AOS logo was not
shown on the sign, and there was no wording for when and how to
make payment.

iii) The entrance sign did not detail terms and conditions for parking
Also, there was no indication that further details could be found on
other notices in the car park

iv) Numerous signs scattered around the car park were not illuminated,
so it was difficult to see them in darkness even from a short
distance. Please see photo numbers 2 in Appendix A for an
example of a sign which wasn’t illuminated.



As the driver only observed the Entrance sign, he did not see the terms and conditions of the car park, as they were not displayed. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied. Consequently, there is no contract between the Operator and the driver.

Along with their rejection letter, the Operator, submitted a number of photographs of the car park. Two of these are relevant. See Operators Photo A and B in Appendix A. Photo A showed three signs and photo B showed one sign. One of the signs on photo A is the same as the one on photo B. These photographs were taken during daylight hours, so did not bear any resemblance to the conditions at the time of the incident. On the evening of the incident it was dark, there was heavy rain and the car park was poorly illuminated. All signs in the photographs were on the right hand side of the car park. However, the driver on entering the car park kept to the left of the wide driveway entrance and parked nowhere near the signs indicated. The car was parked at the rear of the entrance sign. The entrance sign is not shown in the two photographs. Some of the signs indicated were not illuminated. For all signs in the photographs, there was no suggestion of :

i) The days and times for the charging period
ii) The location of the meter(s) in order to buy a ticket.

The three parking signs in the Operator's photographs would only become noticeable on turning right from the entrance driveway to park in the 'right hand side' of the car park. Additionally, on that evening, drivers turning right would have found it difficult to read these sign as a number of them were not illuminated.
Photograph 3 (See Appendix A) was taken on the wide entrance driveway of the car park, a few days after the incident. It only shows the 'left hand side' of the car park. On the evening of the incident, the car was parked in the parking bay next to the Mother with the buggy. A left turn is required to enter this part of the car park, therefore the only sign which was noticeable to the driver was the entrance sign as shown which, as described earlier, was misleading.
One of the signs in the car park contained details of clamping vehicle. This sign is misleading as clamping of vehicles on a private car park like this one is no longer legal.

• Failure of the Operator to adhere to POFA2012 rules for Keeper Liability

POFA 2012 contains clear requirements for Keeper Liability, which the
Operator has failed to follow. Subsequently, Keeper liability does not apply so the Operator can therefore only pursue the driver(s).

The PCN is addressed to ‘Notice to Owner’. The letter from the Operator, rejecting the initial representations made to them, was addressed to me (the Registered Keeper). However, in the letter there was no request for the name of the driver(s). As the Operator hasn’t named the driver, I as Keeper am not liable for any charge.

Incidentally, the Operators rejection letter contains the following paragraph
“The charge will stand at £60 until 21 days after the date of this letter at which point the charge will increase to £100.”
However in the POPLA Newsletter of November 2013, it states
“Operators must be careful to ensure that the wording of any rejection does not, even inadvertently, appear to suggest that the charge might increase by making an appeal to POPLA.”

Clearly the Operator by this statement, is insinuating that if the long drawn out
process of appealing to POPLA is made, and the appeal fails, then a considerably more expensive charge will be sought. I contend this is as an attempt to divert my intention of presenting my case to POPLA.

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

The Operators rejection letter states that a failure to comply with the terms and conditions of the controlled parking scheme will lead to a charge of £100 being issued. This wording seems to indicate that the charge represents damages for a breach of the parking contract and therefore the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss as a result of the 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 full amount of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I request the Operator submits a breakdown of how these costs are calculated, to POPLA (and I, the Registered Keeper). All of these costs must represent a loss resulting from the alleged breach.

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.

• Authority to Issue a Parking Charge Notice

The BPA Code of Practice Code 7.1 states :
“If an Operator does not own the land on which they are carrying out parking management, they must have the written authorisation of the landowner.”

If the Operator does not own the land, they must present to POPLA
(and I, the Registered Keeper) a valid contract which enables them to act in this manner on behalf of the landowner. The BPA Code 8.1 states that such information should be available for disclosure at all times.

• Unfair Charges

If the parking charge is argued to be a contractually agreed sum (which the wording of the Operator’s rejection letter implies it is not as it citing breach of terms and conditions), the BPA Code of Practice states this cannot be punitive or excessive.
I consider the parking charge of £100 to be punitive and disproportionate. It was levied as 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.”

Your faithfully,
THE REGISTERED KEEPER



Appendix A – Photographic Evidence

Photo 1 - Entrance Sign. One of the few signs in the car park which was
illuminated that evening. However it was misleading.

Photo 2 - Pay and Display Sign. This sign was not the illuminated that
evening. The sign cannot be seen even from a short distance.

Photo 3 - Entrance Sign. This shows the entrance sign and left hand side
of the car park in daylight hours.

Operators Photo A - This shows the 3 signs to right of the car park (on of
which is the same as on Photo B

Operators Photo B - This shows 1 sign to right of the car park




Thanks All.

Redx

a small criticism is that your bullet points are labelled a to e but the actual body of the letter does not have them at all , making each section harder to find

if you look at this example https://forums.moneysavingexpert.com/discussion/4816165 you will see what I mean, but the example is listed as say 1 to 4 in both sections , you can see how easily each section can be found, you wont want the adjudicator missing vital info due to it being buried (which has happened before)

I would also say that each header should match each other word for word too

JustRaider

Hi Redx,

Yes, these are good points. We need to make the facts clear to the
Adjudicator, so that the vital points are not missed.

I'll amend the appeal as suggested.

Thanks for your help.

Coupon-mad

I see from your original thread & pm's that this is SIP & so I would add the following, this bit to the point about POFA non-compliance:

'...However, in the misleadingly named 'NTO' (which suggests/impersonates a Council Notice) there was no request for the name of the driver and no identification of the 'creditor'. As the Keeper, I am not liable for any charge if no Notice to Keeper has been properly 'given' under POFA 2012. This 'NTO' is unrecognisable if the intention is for it to be a 'Notice to Keeper' as clearly defined in the POFA 2012. As well as the title of the Notice being incorrect, this Operator has omitted all the below required wording from paragraph 8, Schedule 4, of POFA 2012, namely:

''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met...it must:

(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

In this case, the NTK has not been correctly given under POFA2012 and due to the many omissions, it is a nullity, meaning there is no 'keeper liability' established. In a previous ruling, POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 it must, as with any statutory provision, comply with the Act.


So then I would remove this as it's not needed and won't win the case:
Incidentally, the Operators rejection letter contains the following paragraph
“The charge will stand at £60 until 21 days after the date of this letter at which point the charge will increase to £100.”
However in the POPLA Newsletter of November 2013, it states
“Operators must be careful to ensure that the wording of any rejection does not, even inadvertently, appear to suggest that the charge might increase by making an appeal to POPLA.”
Clearly the Operator by this statement, is insinuating that if the long drawn out
process of appealing to POPLA is made, and the appeal fails, then a considerably more expensive charge will be sought. I contend this is as an attempt to divert my intention of presenting my case to POPLA.''



And I would be tempted to add a final paragraph pointing out that the creditor/operator does not even use the same company name in the Notices/letters/signage/website/AOS list and so the driver cannot have contracted with the same firm which is now bringing this case to POPLA and as keeper you have no idea who is alleging this 'charge'. Then list all the different names & where they appear (discussed on other SIP threads but it includes 'SIP', 'Stop Illegal parking', 'Simple Intelligent Parking' and I think some versions have 'Ltd' after the name and other names don't...).

Worth a Google - I think this has been discussed on a pepipoo thread recently.

And your last two paragraphs need more information, try this version I just wrote on pepipoo for the 'landowner contract' and 'unfair terms' points:

http://forums.pepipoo.com/index.php?showtopic=87292


HTH

Coupon-mad

I also see from your pm's that the signage alleges 'failure to comply' which is good as it means you should win on 'no GPEOL' if you word it as advised.

Just to update the other posters here, you said the sign says:


Sip's signage state
" CONTRACTUAL NOTICE : "
"By parking your vehicle in this private car park you agreed to these terms and conditions - Parking ticket must be valid and clearly displayed inside windscreen with all information visible to parking wardens."
"You must pay for your parking before leaving the car park."
"Failure to acknowledge the above will result in the issue of a £100 parking charge notice"

JustRaider

Hi Coupon-mad,

Thank you for your superb advice for improving my POPLA
appeal.

I've taken note of your points and I'll amend the appeal
accordingly and post it on this thread.

Just one question on the on pepipoo thread regarding
'landowner contract'. There are good points in this which
I will use. The last paragraph contains details of three
legal cases which established that Private Eye was a mere
parking agent and had no legal standing nor authority which
could impact on visiting drivers. Does this argument relate
solely to 'Private Eye' ? Just wondering if this bit is
relevant to my case.

Also, I've read in earlier posts that when submitting a
POPLA appeal online, there is a maximum limit to the
number of words allowed. Do you know what the maximum
limit is ?


Thanks

Coupon-mad

Hiya, it's ParkingEye not 'Private Eye' but loads of people make that mistake! And the argument is the same for any PPC, so it is relevant to include for SIP.

Did you find stuff discussing all the different names they use everywhere, to add a paragraph about the creditor not being disclosed and the contract not being 'clear & transparent in terms of who it was with' meaning that a firm called 'SIP' do not have any contract with the driver?

I don't know how much the POPLA word count is but that might end up over it, especially once you add in something about all the differing names on the signs, PCN, NTK, website, AOS list and all.

JustRaider

Hi Coupon_mad,

Yes, I've looked into past cases where SIP uses many
different names. I have added a new 'point' to my
appeal for this - "6. No Valid Creditor Name on the PCN".
I've also added further information as you suggested for
the points -
2. Failure of the Operator to adhere to POFA2012 rules for Keeper Liability
4. Authority to Issue a Parking Charge Notice and
5. Unfair Charges



The appeal is rather long now, so it would probably best to send this by posting the POPLA appeal form. I assume I will be able to submit the photographic evidence files on-line on the POPLA website.

Below is the amended draft appeal ......
Please note - The changes in this draft are in BOLD.

APPEAL RE: xxxxxxx , CHARGE – Invalid Ticket Displayed
CAR PARK - xxxxxxxxxxxxx , VEHICLE REG - xxxxxxxxx

POPLA Code : xxxxxxxxxxxxxxxx

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.

The PCN states the reason for the parking charge was displaying an "invalid ticket",
in a ‘Pay and Display’ managed car park. The ticket had been purchased earlier in the evening from 'street parking' in xxxxxxxxx, and hadn't been moved from the dashboard.

On entering the car park the driver was unable to read the Entrance sign as it was so high up. After parking the car, the driver walked over to the Entrance sign to read it. However, the wording on the Entrance sign was so misleading that the driver believed the car park was not managed.

My appeal will be based on the following points:

1. Insufficient and Misleading Signage.
2. Failure of the Operator to adhere to POFA2012 rules for Keeper Liability
3. The amount demanded is not a Genuine Pre-estimate of loss
4. Authority to Issue a Parking Charge Notice
5. Unfair Charges
6. No Valid Creditor Name on the PCN


Below are the detailed appeal points :

1. Insufficient and Misleading Signage

The following extracts are from the BPA Code of Practice concerning
car park signage :

18.2 states :

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must be telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of.”

Appendix B - Entrance Signs states :

“As well as the AOS logo, signs at the entrance to the parking area must
clearly show the type of parking, and when and how any payment should be
made.”

“The Operator must always mention that terms and conditions apply and say
where drivers can find more details – this will usually be on the other notices
in the parking area.”

“Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times.”

I will now present my evidence to establish that the Operator has breached the BPA Code of Practice for Signage on several points.

The parking incident occurred around in the evening when it was dark. The driver entered the car park which was poorly illuminated during a period of heavy rain. The car was parked a short distance from the entrance sign, and this was the only sign that the driver observed on the way to the relevant parking bay. Please bear this in mind when reading the evidence below.

The entrance sign is situated to the left side of the entrance of the car park.
Please see photo number.1 in Appendix A.
The sign is high up on a pole and on the left hand side of the road, so a driver would find it difficult to read on entering the car park.
After receiving the PCN, the driver walked around the car park and discovered
the following failings in the above BPA Code of Practice rules :

i) The entrance sign didn’t contain the wording ‘Pay and Display’.

ii) The entrance sign did not state the car park was managed, as the
Operators Name was not displayed. Also, the AOS logo was not
shown on the sign, and there was no wording for when and how to
make payment.

iii) The entrance sign did not detail terms and conditions for parking
Also, there was no indication that further details could be found on
other notices in the car park

iv) Numerous signs scattered around the car park were not illuminated,
so it was difficult to see them in darkness even from a short
distance. Please see photo numbers 2 in Appendix A for an
example of a sign which wasn’t illuminated.



As the driver only observed the Entrance sign, he did not see the terms and conditions of the car park, as they were not displayed. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied. Consequently, there is no contract between the Operator and the driver.

Along with their rejection letter, the Operator, submitted a number of photographs of the car park. Two of these are relevant. See Operators Photo A and B in Appendix A. Photo A showed three signs and photo B showed one sign. One of the signs on photo A is the same as the one on photo B. These photographs were taken during daylight hours, so did not bear any resemblance to the conditions at the time of the incident. On the evening of the incident it was dark, there was heavy rain and the car park was poorly illuminated. All signs in the photographs were on the right hand side of the car park. However, the driver on entering the car park kept to the left of the wide driveway entrance and parked nowhere near the signs indicated. The car was parked at the rear of the entrance sign. The entrance sign is not shown in the two photographs. Some of the signs indicated were not illuminated. For all signs in the photographs, there was no suggestion of :

i) The days and times for the charging period
ii) The location of the meter(s) in order to buy a ticket.

The three parking signs in the Operator's photographs would only become noticeable on turning right from the entrance driveway to park in the 'right hand side' of the car park. Additionally, on that evening, drivers turning right would have found it difficult to read these sign as a number of them were not illuminated.
Photograph 3 (See Appendix A) was taken on the wide entrance driveway of the car park, a few days after the incident. It only shows the 'left hand side' of the car park. On the evening of the incident, the car was parked in the parking bay next to the Mother with the buggy. A left turn is required to enter this part of the car park, therefore the only sign which was noticeable to the driver was the entrance sign as shown which, as described earlier, was misleading.
One of the signs in the car park contained details of clamping vehicle. This sign is misleading as clamping of vehicles on a private car park like this one is no longer legal.

2. Failure of the Operator to adhere to POFA2012 rules for Keeper Liability

POFA 2012 contains clear requirements for Keeper Liability, which the
Operator has failed to follow. Subsequently, Keeper liability does not apply so the Operator can therefore only pursue the driver(s).

The PCN is addressed to ‘Notice to Owner’. The letter from the Operator, rejecting the initial representations made to them, was addressed to me (the Registered Keeper). However, in the letter there was no request for the name of the driver(s). As the Operator hasn’t named the driver, I as Keeper am not liable for any charge.


Also, in the misleadingly named 'NTO' (which suggests/impersonates a Council Notice) there
was no request for the name of the driver and no identification of the 'creditor'. As the
Keeper, I am not liable for any charge if no Notice to Keeper has been properly 'given' under
POFA 2012. This 'NTO' is unrecognisable if the intention is for it to be a 'Notice to Keeper'
as clearly defined in the POFA 2012. As well as the title of the Notice being incorrect, this
Operator has omitted all the below required wording from paragraph 8, Schedule 4, of POFA
2012, namely:


''A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a)
is given in accordance with this paragraph if the following requirements are met...it must:

(c) state that a notice to driver relating to the specified period of parking has
been given and repeat the information in that notice as required by
paragraph 7(2)(b), (c) and (f);

(d) if the unpaid parking charges specified in that notice to driver as required
by paragraph 7(2)(c) have been paid in part, specify the amount that
remains unpaid, as at a time which is—
(i) specified in the notice to keeper, and
(ii) no later than the end of the day before the day on which the notice is
either sent by post or, as the case may be, handed to or left at a
current address for service for the keeper (see sub-paragraph (4));

(e) state that the creditor does not know both the name of the driver and a
current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor
of the name of the driver and a current address for service for the
driver and to pass the notice on to the driver;

(h) identify the creditor and specify how and to whom payment or notification
to the creditor may be made.''

In this case, the NTK has not been correctly given under POFA2012 and due to the many omissions, it is a nullity, meaning there is no 'keeper liability' established. In a previous ruling, POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 it must, as with any statutory provision, comply with the Act.


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

The Operators rejection letter states that a failure to comply with the terms and conditions of the controlled parking scheme will lead to a charge of £100 being issued. This wording seems to indicate that the charge represents damages for a breach of the parking contract and therefore the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss as a result of the 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 full amount of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I request the Operator submits a breakdown of how these costs are calculated, to POPLA (and I, the Registered Keeper). All of these costs must represent a loss resulting from the alleged breach.

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. Authority to Issue a Parking Charge Notice

The BPA Code of Practice Code 7.1 states :
“If an Operator does not own the land on which they are carrying out parking management, they must have the written authorisation of the landowner.”

If the Operator does not own the land, they must present to POPLA
(and I, the Registered Keeper) a valid contract which enables them to act in this manner on behalf of the landowner. The BPA Code 8.1 states that such information should be available for disclosure at all times.
I do not believe 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 to allege a breach of contract (as evidenced in the Higher Court findings in VCS vs HMRC 2012). I put the Operator to strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, specifically evidencing the ability of the Operator to pursue parking charges themselves, to the courts. Operator must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed 'witness statement' slip of paper saying it exists). The date of the parking contract must pre-date the parking event and all clauses and detail must be readable; so a redacted version would suggest 'hidden' relevant information and will not suffice. In ParkingeEye Ltd v Somerfield Stores Ltd [2012] EWCA Civ 1338 (17 October 2012) the contract showed that Operator had limited 'authority' and were a mere site agent which could not pursue court action in their own name, despite their misleading and threatening letters to victims pretending that they could.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers. In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. On 23/01/2014 in ParkingEye v Mr James Gosnold case number 3JD02357 in the High Wycombe County Court, District Judge Devlin found the witness statement was worthless, then a heavily redacted contract was deemed as not satisfying the “relevant contract” provisions of PoFA 2012. The Judge informed the Claimant that the claim was doomed to fail on the locus standi issue (ParkingEye had no standing to bring the claim in their own name).
My case is the same in terms of the Operator having no standing.

5. Unfair Charges

If the parking charge is argued to be a contractually agreed sum (which the wording of the
Operator’s rejection letter implies it is not as it citing breach of terms and conditions), the
BPA Code of Practice states this cannot be punitive or excessive.
I consider the parking charge of £100 to be punitive and disproportionate. It was levied as 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.”

The terms that the Operator in this case are alleging, gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. District Enforcement may argue that they do not have to show their 'contractual charge' related to any loss, but they do have to show that it was not an unfair term in law. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract, then it is unfair in that the signage was neither specific nor transparent as to what must be paid and in what circumstances.

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 issued by a third party which has no cause of action in this instance and, in any case, is not the landowner and has no assignment of title.

6. No Valid Creditor Name on the PCN

As previously mentioned, paragraph 8, Schedule 4, of POFA 2012, requirement ‘h’
states that a Notice to Keeper must “identify the creditor and specify how and to whom payment or notification to the creditor may be made.''
The Operator has failed to meet this requirement, as it is unclear who ‘the creditor’ is.
On the PCN it states the company name as Stop Illegal Parking. However, on checking the Companies House Register this name does not exist. Also this name is not detailed in the BPA List of Approved Operators 2014. The name ‘Stop Illegal Parking’ is meaningless. What is the legal status of this Operator ? The PCN simply mentions ' Stop Illegal Parking’, but this name is not registered as a company, so who exactly is making this charge?

In the BPA List of Approved Operators - January 2014, there is a reference to :
“SIP Parking Limited t/as SIP Car Park (UK), ANPReye, Morgan Knightley & Co, SIP Car Parks & Simple Intelligent Parking”.
However, the PCN states the company name as ‘Stop Illegal Parking’.
The signage in their car park (as taken from a notice appended to the Operators rejection letter) states the company name as Simple Intelligent Parking.
The rejection letter states the company name as Stop Illegal Parking.
The website states the company name as Simple Intelligent Parking.
Clearly the creditor/operator is not consistent in using the same name in their notices, letters, car park signage and website. How can I, as Register Keeper be sure that the firm which is now bringing this case to POPLA, is the one who issued the PCN. ?



Your faithfully,
THE REGISTERED KEEPER



Appendix A – Photographic Evidence

Photo 1 - Entrance Sign. One of the few signs in the car park which was
illuminated that evening. However it was misleading.

Photo 2 - Pay and Display Sign. This sign was not the illuminated that
evening. The sign cannot be seen even from a short distance.

Photo 3 - Entrance Sign. This shows the entrance sign and left hand side
of the car park in daylight hours.

Operators Photo A - This shows the 3 signs to right of the car park (on of
which is the same as on Photo B

Operators Photo B - This shows 1 sign to right of the car park

Redx

I thought you can add the doc file as an online attachment too ?

as well as the pictures etc

JustRaider

Hi Redx,

Right, I didn't know that. Does the doc file have to be in microsoft word
format ?

Thanks.

Coupon-mad

I think it will be OK if attached as a PDF, but try the appeal box first as I think they increased their word count towards the end of 2013. If not, do not leave the appeal box empty, put 'see attached PDF appeal which starts 'blah blah' and ends with this sentence 'blahdy...blahdy...blah!' and in case it is not readable in its entirety as a full letter of appeal attachment, I will post it as well. When you post it, number the pages and put the POPLA code at the top of every single page, stapled together (of course, no flimsy paperclips!) and put a covering note saying how many pages are attached and that it relates to a POPLA appeal you have submitted online but believe the full appeal letter may not have been readable... so here it is!

In the appeal, I just noticed you may have to just proof read it once more!!
After 'potential detriment' you need to amend the name of the PPC which I must have left in - please edit/delete it in the above POPLA appeal!! I won't name them or they will get all excited as both firms read this forum.