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Please could anyone review my POPLA appeal letter?
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MUMMYOF4SMALLS
Posts: 27 Forumite
PLEASE SEE REVISED POPLA APPEAL LETTER AT #14 BELOW, THANKS.
Dear Sir/Madam,
I appeal against the decision of MET Parking Services (MET) because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.
The operator does not appear to 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, the operator has 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 require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.
Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.
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 stated, "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.
The Operator also makes reference in their appeal refusal of 13/03/2014 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.
7.1 of the BPA code of practice makes it a requirement that MET either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put MET to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.
19.5 of the BPA Code of Practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”
There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident. Neither can MET lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. The MET parking attendant watched the driver walk towards the edge of a boundary and made no attempt to warn/stop the driver. He had a legal duty under contract law to mitigate any loss See VEHICLE CONTROL SERVICES LIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, had no breach occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.
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 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 50% by early payment that it is unreasonable to begin with.
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), MET v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty/fine.
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.
The signage on site states that parking is limited to 90 minutes. There is no option to stay for longer by paying. A clear penalty.
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.
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."
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.”
I would contend that this appeal should be allowed for these reasons.
Dear Sir/Madam,
I appeal against the decision of MET Parking Services (MET) because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.
The operator does not appear to 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, the operator has 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 require the operator to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.
Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.
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 stated, "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.
The Operator also makes reference in their appeal refusal of 13/03/2014 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.
7.1 of the BPA code of practice makes it a requirement that MET either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put MET to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.
19.5 of the BPA Code of Practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”
There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was nearly empty and there was no physical damage caused. There can have been no loss arising from this incident. Neither can MET lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. The MET parking attendant watched the driver walk towards the edge of a boundary and made no attempt to warn/stop the driver. He had a legal duty under contract law to mitigate any loss See VEHICLE CONTROL SERVICES LIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, had no breach occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.
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 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 50% by early payment that it is unreasonable to begin with.
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), MET v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
The operator is either charging for losses or it is a penalty/fine.
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.
The signage on site states that parking is limited to 90 minutes. There is no option to stay for longer by paying. A clear penalty.
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.
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."
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.”
I would contend that this appeal should be allowed for these reasons.
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Comments
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I would advise you to number each section and also to have these reproduced at the beginning just before the explanations, again in numbered format so the assessor can see them clearly
also, where it says unlawful penalty charge , this header and the explanation need the words NOT A GENUINE PRE ESTIMATE OF LOSS, just so the assessor is clear about it
also NO VALID CONTRACT WITH LANDOWNER should feature here too
best to look at this guidance template here https://forums.moneysavingexpert.com/discussion/48161650 -
Personally I think you've over complicated your appeal.
The appeals I've written have been based around a very brief summary to start ( based on the main three points ) and then a slight expansion on the three points. The three points being :
1. No Genuine Pre-Estimate of Loss
2. Inadequate signage
3. No authority for the PPC to issue charges on the land in question
I'd do a numbered list like the one I've just listed and then three points expanding on each of them - each being numbered as per the list."The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis." - Dante Alighieri0 -
Thank you both for your comments. I'll amend it tonight when the smalls are in bed!
How do I know (or do we always assume) that MacDonalds (in this instance) has no valid contract with the landowner?
In your opinions, do you think I will win this appeal?
I am so cross about it all. Especially as the parking attendant watched me leave and I clearly hadn't seen the sign...
Would it be OK to post my amended version of my appeal letter later?0 -
mummyof4smalls wrote: »Thank you both for your comments. I'll amend it tonight when the smalls are in bed!
How do I know (or do we always assume) that MacDonalds (in this instance) has no valid contract with the landowner?
In your opinions, do you think I will win this appeal?
I am so cross about it all. Especially as the parking attendant watched me leave and I clearly hadn't seen the sign...
Would it be OK to post my amended version of my appeal letter later?
We don't know if the PPC has a valid contract with McD's - that's why your challenging them on it ! Often the contract, if there is one, doesn't allow the PPC to chase payment through the courts and sometimes they have no right to payment.
If you include the GPEOL item I mentioned then you have a 100% chance of winning."The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis." - Dante Alighieri0 -
Many McD's Managers have cancelled MET tickets when a person has complained on here.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
it doesnt matter what you think in these cases , all that matters is you challenge them to provide proof for each and every appeal point, to popla, if necessary to a court too
they are the one issuing the charges and invoices , so its their job to prove they are valid , not yours to prove or disprove
their attendant had a duty of care to minimise losses by telling you about your actions and that it would result in a ticket - they did not do this so its an extra point if it went to court, but for now concentrate on the key appeal points ( they should do it to minimise the damage due to any contract at the time if they see something untoward)0 -
Coupon-mad wrote: »Many McD's Managers have cancelled MET tickets when a person has complained on here.
..but he lied and said he couldn't cancel the ticket. When I challenged him on this he still lied and then another customer overheard our conversation and told him this was untrue as he'd had a ticket cancelled by a store manager. He then changed his tune from 'can't' to 'won't' cancel the ticket.0 -
As suggested the sections should be numbered as this makes it easier to reference.
Don't worry about the McD's manager deciding he can't get involved. That appeal will win it, IMO, but it just means having to wait for things to come through.My very sincere apologies for those hoping to request off-board assistance but I am now so inundated with requests that in order to do justice to those "already in the system" I am no longer accepting PM's and am unlikely to do so for the foreseeable future (August 2016).
For those seeking more detailed advice and guidance regarding small claims cases arising from private parking issues I recommend that you visit the Private Parking forum on PePiPoo.com0 -
mummyof4smalls wrote: »..but he lied and said he couldn't cancel the ticket. When I challenged him on this he still lied and then another customer overheard our conversation and told him this was untrue as he'd had a ticket cancelled by a store manager. He then changed his tune from 'can't' to 'won't' cancel the ticket.
As you've mentioned he is lying. You could report him to the McD CEO - [EMAIL="jill.mcdonald@uk.mcd.com"]jill.mcdonald@uk.mcd.com[/EMAIL]
"The darkest places in hell are reserved for those who maintain their neutrality in times of moral crisis." - Dante Alighieri0 -
Just a few grammar tweaks, op, if you stay with your version:
#The operator does not appear to own this car park and [STRIKE]are[/STRIKE] is assumed....
#since [STRIKE]they do not own nor have any[/STRIKE] it holds neither interest in, nor assignment of, title of the land in question.
You use the singular elsewhere, rightly - it is a company.
#[STRIKE]Contracts are complicated things, so[/STRIKE] so a witness statement signed by someone is not good enough, nor is a statement that a person has seen it.
# A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator[STRIKE]
the right, under contract, [/STRIKE]to write[STRIKE] numerous letters [/STRIKE]to an appellant chasing monies without taking them to Court, to pursue parking charges [STRIKE]its[/STRIKE] , to retain any monies received from appellants[STRIKE] and to pursue them. [[/STRIKE][you've just said that and pursuing precedes paying, but only if you're muggins]
#[STRIKE]I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.[/STRIKE] You can't say this; you haven't seen all BPA contracts, or have you?
#VEHICLE CONTROL SERVICES LIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. ccp full case ref.s here.
#The operator [STRIKE]could state the letter as an[/STRIKE]uses a facsimile 'invoice' or request for monies, [STRIKE]using the wording[/STRIKE] headed “CONTRACTUAL PARKING CHARGE NOTICE”in bold, to[STRIKE] be deemed [/STRIKE]pass for an official [STRIKE]parking fine[/STRIKE]Penalty Charge Notice, which only Police, Council Wardens and London Transport can issue.
#Lose this: The signage on site states that parking is limited to 90 minutes. There is no option to stay for longer by paying. A clear penalty-self-incriminating, acknowledges signage, ungrammatical, adds nothing,
Simpler is better, as you've been guided by the others above. Use numbered headings
We all know how tangling it can feel when you read and read and just want the thing done and dusted.*PPCS COUNT ON YOU FEELING LIKE THIS*
redx, hotbring, and HO87 have given you the perfect pathway. Please do follow it and SEND A COPY TO MCDONALDS,
I'd write a simple para. as a Supplementary, detailing exactly what the McD Mgr said, then was forced to concede, before the refusal to cancel. You are 'appalled that an employee of a global corporation has no concern for either Truth, the Law, or his employer's reputation.'CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
01274 760721, freephone0800 328 0006'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
Norman Kirk, NZLP- Prime Minister, 1972
***JE SUIS CHARLIE***
'It is difficult to free fools from the chains they revere' François-Marie AROUET
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