JAS Parking (Staples)

ampersand

I'd certainly be asking bpa and dvla for their accurate minuted records of this consultation and ask them also, why you hadn't been informed of this important meeting sooner.

This is not to distract you from your POPLA appeal, which you will win, tweaking the letters already on this Thread.

Redx

good, so get a popla appeal in PDQ

Coupon-mad

Search on Google or here for 'JAS Staples POPLA' and Bob's your Uncle. There are several JAS POPLA appeals on here.

secretmachines

Coupon-mad wrote: »

Search on Google or here for 'JAS Staples POPLA' and Bob's your Uncle. There are several JAS POPLA appeals on here.

Thanks coupon-mad! There's a job for the weekend... 28th Oct (edit - I mean the 14th!) is the popla deadline, but I'll do it at the weekend

Redx

secretmachines wrote: »

Thanks coupon-mad! There's a job for the weekend... 28th Oct is the popla deadline, but I'll do it at the weekend

not in my opinion it isnt

maybe 28 sept , yes, but not oct

secretmachines

Redx wrote: »

not in my opinion it isnt

maybe 28 sept , yes, but not oct

haha! no idea where the 28 Oct came from! Meant to type 14 Oct

secretmachines

righty-ho then, I've taken the most recent successful JAS/Staples POPLA appeal letter I can find on MSE (magicqueen from May/June 2014), which I've edited as appropriate, and re-written point 8 to reflect my situation.

Do you guys think this is good-to-go, to send as my POPLA appeal?

---

APPEAL RE: JAS PARKING SOLUTIONS
PCN: x
ISSUED: x
VEHICLE REG: x

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 NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
2 UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
3 CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
4 NO CONTRACT WITH THE DRIVER
5 UNFAIR TERMS
6 UNREASONABLE
7 UNLAWFUL PENALTY CHARGE
8 FAILURE TO COMMUNICATE

1 NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no parking charge levied, the car park is “free”. 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 £4.60 for all day parking (e.g. **named local car park**). 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.

2 UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
Due to their position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read and understand.
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])

3 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.

4 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.

5 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."

6 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.”

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) .

8 FAILURE TO COMMUNICATE
An appeal and reply to the PCN and JAS was correctly submitted in accordance with instructions on the PCN on 9th March 2014. No acknowledgment or reply was received. The first communication received was 6 months later, letter dated 3rd September 2014. This was a Notice To Keeper (NTK) letter, not from JAS but from PDC (Parking Debt Collection, acting on behalf of JAS). I understand that the NTK is required to be sent between 28 and 56 days after the date of the PCN (in this case, PCN issued 4th March 2014). After 56 days, which this case is, only the driver of the vehicle can be pursued.

I understand that such failure in communications contravene the BPA AOS Code of Practice: Contraventions & Sanctions, under Levels 3 and 4:
LEVEL 3
3.1 Major failure in communications to customers
LEVEL 4
4.2 Significant failure in communications to customers

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.
Regards

secretmachines

any thoughts/suggestions from the experts, then I can fire it off to POPLA

Dee140157

Point 8 is missing the point.
The arrival of the very late NTK means that pofa12 has not been followed correctly therefore there is no keeper liabilty and therefore as keeper you deny any debt to the PPC. The communication angle is not the angle to take, the non complaint NTk is the most significant angle and in my opinion should be first in your appeal, followed by a much better no GPEOL paragraph ths you currently have. Look at some PE ones linked to from post 3 of newbie thread.

A better more recent example is here: https://forums.moneysavingexpert.com/discussion/5039266 , but on
Y later in the thread not the initial appeal which looks similar to yours.
Again it will need adapting.

Coupon-mad

Post #15 of that thread isn't a bad POPLA appeal but misses out the point altogether about 'no keeper liability' due to a fatally late and non-compliant NTK. That's covered in various POPLA examples in post #3 of the Newbies thread, e.g. Civil Enforcement examples always have that section as they don't know a NTK from their elbow, either!

So I think you need 6 points of appeal altogether, which you must expand upon, so please do a draft including these points (some from the link Dee gave you):

1) The Charge is not a genuine pre-estimate of loss
2) No attempt to mitigate loss
3) Lack of keeper liability under POFA 2012 - no Notice to Keeper served by day 57.
4) Lack of signage - no contract with driver
5) Lack of standing/authority from landowner
6) Unreasonable/Unfair Terms