POPLA appeal proofread please help!

Jungle_red

Hello fellow forum users, I would appreciate any feedback on what I am about to send to POPLA, I want to make sure it's as strong as possible. Thank you!
PS: grounds are not liable as car parked outside parking area!


POPLA

On 03.01.2014 I was the registered keeper of vehicle registration number Xxxxxx. As the registered keeper of this vehicle I dispute and deny the charge for the reasons set out below:

1. Photographic evidence provided shows the car was parked before the sign marking the entrance to the development, therefore before the claimed restrictions apply. The parking company has not provided any photographic evidence whatsoever to back up their allegation of the vehicle being parked outside the markings for a parking bay. I believe MET is not legally entitled to issue a ticket on that land as it does not belong to X site, which the parking company claims to hold a contractual agreement with. They have not provided any evidence of that contractual agreement and as per the BPA Code of Practice, clearly stating the boundaries of the parking area that restrictions apply to.
As the car is clearly parked outside the car park area, (see photographic evidence of car parked within ample distance to the entrance sign) there is categorically no contractual agreement between the driver and the parking company.
2. I believe the operator does not have any proprietary interest in the land and therefore has no authority to issue a parking ticket.

3. Even if they were legally entitled to issue a ticket (for which there is no evidence) I believe the amount of the ticket is punitive, unfair and unreasonable, as £100 is not an amount justifiable by the costs incurred by the land owner/ company. The car does not obstruct any area/ parking bay/ entrance and if this was claimed by MET, a breakdown of their costs should be provided in order to justify their claim.
Under The Unfair Terms Consumer Contracts Regulations 1999, the charge of £100 exceeds the potential cost or consequential loss to the landowner.

Coupon-mad

You really want the magic words 'not a genuine pre-estimate of loss' and to ask for that landowner contract to be produced which defines the boundary of the site and whether MET are assigned the rights to make contracts themselves, with drivers (as opposed to merely being a site agent for the landowner).

Have you checked 'How to win at POPLA' in post #3 of the NEWBIES sticky? We also normally include a section about signage. Also is the NTK compliant with POFA2012, etc. And strictly speaking this isn't right as the UTCCR1999 does not say what you effectively are saying it does and so you make that point easy to rebut:

Under The Unfair Terms Consumer Contracts Regulations 1999, the charge of £100 exceeds the potential cost or consequential loss to the landowner.

Guys_Dad

Take a winning POPLA appeal from coupon's thread and add your unique points to it if you like. That will win.

da_rule

Also, check post number 6 on https://forums.moneysavingexpert.com/discussion/4865624 this is a POPLA appeal specifically created for MET. Put your part about not parking on the land under the first heading of 'No breach of contract'. As has been said you definitely want to refer to no pre-estimation of loss. You may want to delete the section about signage if it is clear, but leaving it in there means they have to defend themselves against it and will create more work for them, which may increase the chance that they simply won't bother.

Also, don't refer to it as a 'charge' this makes it sound criminal, refer to it as what it is, an appeal against a Parking Charge Notice.

Jungle_red

Thank you Coupon mad, I have spent a bit if time studying that post thanks!
I have added your suggestions now, anything else anyone can think of greatly appreciated.

Stroma

Yes please post what you've done, you really only want to do this once.

Jungle_red

Ok here's the latest version....

POPLA APPEAL
VERIFICATION CODE:
Rejection notice set by operator:

On xxxx. I was the registered keeper of vehicle registration number Xxxx. As the registered keeper of this vehicle I am appealing the parking charge notice for the reasons set out below:

1. No breach of contract.
Photographic evidence provided shows the car was parked before the sign marking the entrance to the development, therefore before the claimed restrictions apply. The parking company has not provided any photographic evidence whatsoever to back up their allegation of the vehicle being parked outside the markings for a parking bay. I believe MET is not legally entitled to issue a ticket on that land as it does not belong to x site, which the parking company claims to hold a contractual agreement with. They have not provided any evidence of that contractual agreement and as per the BPA Code of Practice, clearly stating the boundaries of the parking area that restrictions apply to.
As the car is clearly parked outside the car park area, (see photographic evidence of car parked within ample distance to the entrance sign) there is categorically no contractual agreement between the driver and the parking company.
Furthermore, I would request the landowner contract to be produced which defines the boundary of the site and whether MET are assigned the rights to make contracts themselves, with drivers (as opposed to merely being a site agent for the landowner).
2. Lack of authority to issue ticket.
I believe the operator does not have any proprietary interest in the land and therefore has no authority to issue a parking ticket.

3. Ticket amount is punitive, unfair and unreasonable.
Even if they were legally entitled to issue a ticket (for which there is no evidence) I believe the amount of the ticket is punitive, unfair and unreasonable, as £100 is not a genuine pre-estimate of loss or an amount justifiable by the costs incurred by the land owner/ company. MET does not provide any evidence that the car obstructs any area/ parking bay/ entrance and if this was claimed by MET, a breakdown of their costs should be provided in order to justify their claim.
Under The Unfair Terms Consumer Contracts Regulations 1999, the charge of £100 exceeds the potential cost or consequential loss to the landowner.

4. Unclear signage marking entrance to parking area.
MET claims the car in in violation of the parking agreement. As per the photographic evidence provided I claim this is clearly not accurate and I would therefore request for MET to provide a clear plan of where their signs clearly marking the parking entrance are and evidence of where the vehicle was parked I relation to these.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

da_rule

Point 2 - Lack of authority to issue ticket. I would suggest changing it to the following as you don't really want to dispute their ability to issue a 'ticket', you instead want to challenge their ability to enter into a contract with you:

2. Contract with landowner - no locus standi
MET do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET 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. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow MET to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013.

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. MET cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

Coupon-mad

I have re-written it as below, incorporating da_rule's suggested point #2:




POPLA APPEAL
VERIFICATION CODE:xxxxxxxxxx

As the registered keeper of this vehicle I am appealing the parking charge notice for the reasons set out below:

1. No breach of contract - car not parked within site boundary (undefined).
Photographic evidence provided shows the car was parked before the sign marking the entrance to the development, therefore not even within the supposed boundary where the claimed restrictions apply (see photographic evidence of car parked some distance before the site entrance sign).

The parking company has not provided any photographic evidence whatsoever to back up their allegation of the vehicle being parked 'outside the markings for a parking bay'. The site boundary is undefined on the signage but an ordinary person can only reasonably conclude that an entrance sign is the first point at which a passing driver could be considered to possibly be entering into a contract (not before). A car parked some distance before the first sign cannot be assumed to be within 'the site' unless this is made clear with a site boundary map on signs placed at/before the place where the car was parked. This Operator has not provided any evidence of signs that would have included this undefined area as falling within the boundaries of the site and any restrictions applicable, so there was no breach of any sign.

2. Contract with landowner - no locus standi
MET do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that MET 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.

Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow MET to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers. Nor would it show the site boundary or restrictions applicable.

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.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013.

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. MET cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

3. The invoice is punitive, unfair and not a genuine pre-estimate of loss
£100 does not represent a sum based on any genuine pre-estimate of loss. MET does not provide any evidence that the car obstructed any area within the site and if this or any damage was to be alleged by MET, then a breakdown of those liquidated damages - directly arising from this parking event - must be provided.

4. Signage at entrance - no contract formed with driver
MET are alleging that the driver breached the terms on a sign that the car had not driven past and had not read and so no contract was ever formed with the driver. Appendix B of the BPA CoP states the requirements for clear entrance signs and MET have failed to meet those trade body rules. MET have not made the t&cs clear at this area and nor have they placed the signs at a prominent early point where this driver could have been considered to have definitely seen and read them. As the car was clearly parked before the signs start, there was categorically no contractual agreement between the driver and the parking company and no exchange of any consideration; no elements of any contract existed between the parties.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

da_rule

The only other thing I might add would be to challenge the calibration of their ANPR. One of the appeal letters does have it on, but I can't find it for the life of me at the moment, but I'm sure someone else will oblige. Whilst this is a bit of a red herring appeal point, it just adds to the work that MET will have to do, as they will have to produce evidence of calibration, and may therefore make them less likely to bother actually fighting the appeal.

Coupon-mad

da_rule wrote: »

The only other thing I might add would be to challenge the calibration of their ANPR. One of the appeal letters does have it on, but I can't find it for the life of me at the moment, but I'm sure someone else will oblige. Whilst this is a bit of a red herring appeal point, it just adds to the work that MET will have to do, as they will have to produce evidence of calibration, and may therefore make them less likely to bother actually fighting the appeal.

I agree, like this sort of thing?

https://forums.moneysavingexpert.com/discussion/comment/63744997#Comment_63744997

And MET are one of those who have started to throw in the towel so I suspect this will beat them hands down.