JAS Parking (Staples)

secretmachines

that's great, thank you guys - some more homework for the weekend!

I'll post up here when I've re-edited if that's ok

Dee140157

Whatever you do, don't run out of time.

secretmachines

Dee140157 wrote: »

Whatever you do, don't run out of time.

definitely won't do that! 14th Oct is etched in my mind!

might get an opportunity one evening this week, hopefully.

secretmachines

hi everyone, thanks for you continued help and patience!

I have rejigged my letter as recommended above, I have used Dustykitten's template as suggested... I have also written Section 3 myself, using my (limited) knowledge! Does it say the right thing?

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Dear POPLA,

I am the registered keeper of vehicle reg xxxxxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

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

1) The Charge is not a genuine pre-estimate of loss

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and without it costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach.

JAS when rejecting my appeal stated that the cost had been estimated on the cost of the staff issuing the parking charge notice (e.g. salary, equipment, stationary, insurance, etc.) Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

In the rejection JAS also state potential losses to the retailer due to the parking contravention (if appropriate). An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions. This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.

The charge that was imposed 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. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £94 can be reduced to £56.40 by early payment the charge is unreasonable to begin with.

2) No attempt to mitigate loss

JAS state that “The reason the parking charge notice was issued was because [the driver] parked [their] vehicle in Staples/Klick Fitness car park and went out towards the County Council buildings”. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.

3) Lack of keeper liability under POFA 2012 - no Notice to Keeper served by day 57

I refer to Protection of Freedoms Act 2012, SCHEDULE 4, Recovery of unpaid parking charges:
“8 (5) The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.” In this case, the Keeper cannot be held liable:

The PCN was issued on 4th March 2014, the Notice To Keeper was dated 3rd September 2014, 183 days later.

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).

4) Lack of signage - no contract with driver

The JAS appeal refusal states that the claim in question is based in contract law.

As the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of JAS and not expecting to read a contract when they park. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.

On close inspection the signs say that it is a breach to turn in the carpark; it is impossible to leave the carpark without turning as you have to exit the way you entered who would agree to these terms, they are so unreasonable.

5) Lack of standing/authority from landowner

J.A.S 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. Therefore JAS have no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that JAS are entitled to pursue these charges in their own right.

I require JAS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

6) Unreasonable/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. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A small print sign which cannot be read until you leave your vehicle and then then states that you cannot turn, is far from 'transparent'.

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".

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.”

I contend it is wholly unreasonable to rely on signs with such small print and impossible conditions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

Yep that will win - nicely done. Submit it by ticking 3 out of 4 appeal boxes on the POPLA website (it's obvious which) and then enjoy the weekend!

secretmachines

Coupon-mad wrote: »

Yep that will win - nicely done. Submit it by ticking 3 out of 4 appeal boxes on the POPLA website (it's obvious which) and then enjoy the weekend!

thank you! all submitted
will I get an email confirmation of this, or just wait for the good news?

Coupon-mad

Email confirmation soon from POPLA, then if the PPC bother to contest it, you will be copied into an evidence pack of drivel next month from the PPC, which you can rebut by email to POPLA (search the forum for GPEOL rebuttal).

secretmachines

Great, received my notification of appeal letter from popla, decision to be made on / around 3rd Nov

secretmachines

Just been copied in on JAS' response to the POPLA appeal... Interesting!

Quote "I appellant has not denied that there was a breach of the terms and conditions but has submitted an internet based copy and paste appeal format. They have also not submitted a receipt to be considered with their appeal."

They also say they've attached details of preestimate of loss and contract with landowners agent... they haven't.

Coupon-mad

Hilarious!