MET - Chiltern railway

slickshoes

Hi,

I am a newbie, and have read the stickies, so I think I understand the correct proceedure. Im just after a little confirmation that I am doing everything correctly please?

A brief description of my situation: I park in a chiltern railway car park daily, and usually pay without fail. On this day, I genuinely forgot to make the payment, and of course received the windscreen ticket upon my return, issued by MET parking. I admit that it is my mistake that I failed to pay, but the amount requested of £100 is completely unreasonable.

As advised on the forums, I ignored the ticket and have just received the NTK (or 'PCN' as they call it). As I understand it, now is the the time to make a soft appeal to MET, which should be rejected, and get a POPLA code?

I am planning on using the templated appeal letter found in the newbie sticky, challenging GPEOL, signage and contract.

However, I have a query, if anyone can advise?

- I have seen on a number of threads the mention of 'bylaws' when talking about railway car parks. Im not sure that I understand the significance and how it would affect my situation? It does not mention bylaws on the windscreen ticket or NTK, but it does on the station signage.

Many thanks

Coupon-mad

Sorry you got no replies yet and welcome to MSE forums!

A perfect first post as you've read the info here and your planned appeal is exactly right for this stage. As for the byelaws situation we only find this is an issue with 'penalty' charge notices issued by CP Plus or by train operators (tickets issued by Northern Rail or SWT for example). Not fake PCNs from MET nor NCP nor Meteor.

MET 'parking charge notices' are bog standard ones, even if issued in a railway car park they are not byelaws tickets at all. And currently MET are cancelling at POPLA stage when they see a forum-worded appeal. You'll have won this by Easter!

slickshoes

Thanks very much for the response! I feel much more relaxed now that you have clarified my query and confirmed that I am on the right track.

prjohnsonnn10

see my other post on the met /chiltern / roxburghe thread.

in short met wont issue you a popla appeal code on chiltern land.have some fun and ask them exactly WHO you can appeal to then !! they probably wont answetr you

dvla are VERY interested in this currently and are looking into it as met are still requesting keeper details fro chiltern tickets and are NOT offering any appeal process.

peter

slickshoes

Thanks for the info Peter. MET did reject my appeal as expected, but thankfully they did issue a POPLA code in this instance.

I have prepared my POPLA appeal now, and would appreciate it if anybody could take a look to make sure it is ok to send?

Dear Sir/Madam,
POPLA CODE xxxxxxxxxx

As the registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge issued by MET Parking Services.

My appeal is based on the following grounds.

1. Genuine pre-estimate of loss.

2. Unlawful penalty charge

3. No contractual authority to levy charges.

4. Unclear and non-compliant signage


To expand on these points:
1) Genuine pre-estimate of loss
MET Parking Services state in their letter of rejection that the parking charge represents a claim for liquidated damages. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.
The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

MET Parking cannot lawfully include their operational day-to-day running costs in any 'loss' claimed. In this case, MET Parking has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £50 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.

2) Unlawful penalty charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at dressing up an unlawful penalty 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) .

In the case of Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd, Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

(C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

And in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Finally, I believe MET are in breach of the Unfair Terms Act 1997 and Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
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.


3. No contractual authority to levy charges

MET have not provided me with any evidence that they are lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that MET Parking Services has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

I request MET provide POPLA documentary evidence in the form of a full copy of the original contemporaneous site agreement/contract with the landowner/occupier signed and dated (not just a signed slip of paper saying it exists). Specifically, to comply with the Code of Practice, the contract needs to specifically grant MET the right to pursue parking charges in the courts in their own name, as creditor.

It is widely known that some contracts between landowner and a parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require MET Parking Services to produce an actual copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

I also 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 the legal standing to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012). I say that any contract is also not compliant with the requirements set out in the BPA Code of Practice.

4) Unclear and non-compliant signage
I contend that the signs and any core parking terms MET are relying upon were too small for any driver to see, read or understand whilst simultaneously being in motion driving into the car park.

I request that POPLA verify 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 and machines in that car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the full terms and any consequences for breach, as in this case of ‘Excel Parking Services Ltd v Martin Cutts, 2011’ and;

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance on the drivers side, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.


On the basis of all the 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 the CPUTR 2008, the UTCCR 1999 and basic contract law.

This ‘charge’ is unfair and punitive and, as such, I respectfully request that this appeal be allowed.

Yours faithfully,
XXXXXXXXXX

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prjohnsonnn10

1.I suspect Coupon Mad may come and give you specific advice on the letter itself but when i won my 3 appeals at POPLA against MET in these Chiltern car parks i made sure that i asked them before hand ie NOW to provide me with a specific breakdown of how the loss amount I had caused was comprised. They didnt of course provide this (they cant) and i think this just covers off all the angles as my POPLA wins were on the basis that I had asked for a breakdown and was entitled to know how the costs were made up but MET failed to proviide it so I won.

2.you could of course give us all here an interesting potential 'win' at POPLA and appeal to them PURELY on the grounds of No liability as you are the Registered Keeper...assuming you are the RK and that you arent the driver in this offence? There is no liability at these car parks to the RK and I have a letter from MET stating this in black and white (i forced their hand by paying one of their GBP 100 'fines'and as the RK then getting them to acknowledging this ). They had to refund a this amount to me of course and I obtained their admission of their !rror'in writing. They claimed that they had issued the ticket to me as the RK due to an !dministrative error'in January this year ! Of course they have been issuing these Notice to Keepers for 3 years in Chiltern car parks and DVLA have all of my evidence and correspondance going back over 2 years to prove it . They started an enquiry into MET at these car parks 10 days ago.

3. Finally - interesting to see you have obtained a POPLA code from them here - MET have written to DVLA and Chiltern on my cases and adviused that they are no longer issuing these codes at Chiltern car parks as they 'have no obligation to do so'as they are 'being managed under byelaws'. Its all a real meess, they know it and so do DVLA now and MET have been forum shopping between byelaws and PoFA for 3 years. I intend to pursue this all the way and my aoim is to try and get refunds for all Chiltern parkers who have been stung with these false RK letters over the years and paid the GBP 100 or GBP 60 amounts in the belief that they have been 'liable'as RK's when in fact MET knew all along that they werent.

BTW on their failure to provide to me an !ppeal'service of any sort I have a complaint into DVLA and BPA on this also...... MET and BPA have refused to answer my simple request for a year on exactly WHO or WHAT is now the independant appeal process at these car parks.

Anyway, MET are in a total mess here and we will get the refunds I hope for the many 100's of people whi have been scammed as RK's - good luck and well done for getting a POPLA code

........go on............. make us all happy and appeal it JUST on the grounds of no RK liability at these railway car parks!! . I can give you a copy of the letter as evidence for you where they admitted it to me and refunded me my GBP100.

Coupon-mad

I like that - clever, prjohnsonnn10! Can you start a new thread about that and show us their letter and yours? :T

''I forced their hand by paying one of their GBP 100 'fines' and as the RK then getting them to acknowledging this ). They had to refund a this amount to me of course and I obtained their admission of their 'error' in writing. They claimed that they had issued the ticket to me as the RK due to an 'administrative error' in January this year ! ''

:T

There's no exemption of course to a PPC, allowing them not to issue a POPLA code just because a site isn't under POFA 2012. POFA and POPLA are not the same thing and the BPA CoP binds the AOS memebers to issue POPLA codes with all rejection letters if the person has appealed 'in time'.


And to the OP, slickshoes, that POPLA appeal is very strong and will win. MET will give up. To make it even better I would remove this wordy bit which was written regarding ParkingEye not MET, and adds nothing relevant:

''It is widely known that some contracts between landowner and a parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require MET Parking Services to produce an actual copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company''


...and add another point that in a railway car park there is no keeper liability because byelaws prevail. As such you contend the byelaws apply (attach a link as evidence if you can find the byelaws by Googling) and so this is not 'relevant land'.

slickshoes

Thanks for your helpful responses. Much appreciated.

@prjohnsonnn10, I made sure to ask MET to supply me with a breakdown of how the loss was comprised in my original appeal. They of course failed to do so, and simply pointed me towards their vague FAQ's.

I will add a section on No keeper liability, although I'm not sure I am brave enough to appeal purely on those grounds.

@Coupon-mad, Thanks for the feedback. I removed the suggested section, and included the following extra section:

5) There is no 'keeper liability' since bylaws apply at this railway car park. This is not relevant land under POFA2012 so the NTK is flawed.
This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the registered keeper). The Operator has issued a defective Notice citing an Act which does not apply at this particular site, in an attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to Chiltern Railway’s Bylaws taking precedence, and rendering this land outwith POFA and outwith 'registered keeper liability'. For this Operator to claim in their standard letters that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Bylaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around this railway.

prjohnsonnn10

There is a way to go yet with this particular 'battle' but just by way of a brief update, we had written confirmation today from DVLA that MET Parking are CANCELLING a total of 589 NTK tickets issued in Chiltern Railway car parks as a result of incorrectly claiming Keeper Liability on 'railway land'.

Obviously a big step forward and it has taken us a full year to get them to this point and there's still some way to go in obtaining full refunds all the way back to inception of PoFA 2012 but we feel as if at least we are on the way to righting this major 'invoicing injustice'. ....

Coupon-mad

Well done so far with this fightback!

prjohnsonnn10

slickshoes.........what's the latest with your 'appeal'?