Park Direct UK PCN, would greatly appreciate any advice

PoolieFritz

OK that's my appeal letter in - I handed it in personally this afternoon to the receptionist where the PPC's serviced offices are located, as I happen to work nearby.

Sadly my neighbours had already coughed-up to these cowboys prior to them learning about this forum, just a shame that the PPC's bullying tactics aren't more widely publicised so that Joe Public would be more aware.

Will let you know once my POPLA code arrives, thanks again!

PoolieFritz

Good evening, just to let you know that my appeal refusal letter arrived today and I have the POPLA code, scans as below:

page 1: i1294.photobucket.com/albums/b611/PoolieFritz/PCN/2014-04-04pg1of3_redacted_zpsafd82448.jpg

page 2: i1294.photobucket.com/albums/b611/PoolieFritz/PCN/2014-04-04pg2of3_redacted_zps092047bc.jpg

Coupon-mad, I'd very interested in seeing that POPLA appeal that you mentioned earlier, the one you wrote for starstruck13 in February...many thanks in advance.

Coupon-mad

Put starstruck13 into the members list search, one of the clicky headings above your thread - the line of links above the gap and the blue reply button just above. Find his thread in seconds, better than me linking it for you and you being none the wiser how I found it.

Umkomaas

Coupon-mad wrote: »

Put starstruck13 into the members list search, one of the clicky headings above your thread - the line of links above the gap and the blue reply button just above. Find his thread in seconds, better than me linking it for you and you being none the wiser how I found it.

C-m, I checked the link as I was interested to read a 'Contractual Charge' POPLA appeal, but the thread seemed to fizzle out, possibly going off-forum as the final post was by 4CR to notify the OP that she was sending a PM.

No draft POPLA appeal at that point, did you also go off-forum beyond then?

https://forums.moneysavingexpert.com/discussion/comment/64106601#Comment_64106601

Coupon-mad

Whoops, yep and it's still in my sent items, off thread (sorry):


POPLA appeal - verification code ..........

1. Unlit and unclear, contradictory signs - no contract with Driver
This was late afternoon in a dimly lit car park; the driver unloaded a bulky unwieldy item for a few minutes in the dark and saw no signs. There was no intention to stay & no agreement to 'pay £100 for unloading'. In any case, the sign fails to show any sum to be payable at all for unloading (a wholly different activity than parking/waiting).

Terms are only imported into a contract if they are clear & so prominent that the party 'must' have known of it & agreed. It is not enough to have some signs; this wording is unclear & dresses up a penalty as a 'contractual' fee. It is not a sum payable in exchange for any consideration - just because a sign uses the word 'contractual' does not make it not a matter of breach. There is no allowance to park without 'authority' and the signage wording directly contradicts the NTK and the rejection letter; see point 4.

2. NTK - no 'keeper liability'.
The NTK fails to identify the 'creditor', state a 'period of parking' or meet the requirements of POFA. It is not for me to guess who the creditor is. It could be ParkDirectUK or 'ParkDirect UK Ltd' (both legal names are on the NTK). Or the creditor could be one of those who the letter states 'suffered loss', or their client ,or another party.

It was an 'immediate' PCN, with no Grace Period, which breaches the BPA CoP. No 'period of parking' on an NTK breaches POFA and it fails to repeat facts from the PCN - even the sum to pay is hidden in small print & it omits wording from paragraph 8 of Schedule 4 of POFA 2012. There is no 'keeper liability' from a fundamentally flawed NTK.

3. Agency agreement - no Locus Standi
This is a mere site agreement at best, a bare licence limited to 'issuing tickets'. There is no assignment of rights to pursue PCNs in the courts in their own name nor to form contracts. A non-landowner private parking company must have a contract with the landowner - not an agreement with a managing agent - and it must comply with paragraph 7 of the BPA Code of Practice or there is no authority.

A site agreement or redacted contract will not suffice. I put ParkDirect UK Ltd to strict proof of their specific BPA compliant contract wording. If the client is a managing agent, I put this Operator to strict proof that the actual landholder authorised the managing agent to grant this parking operator, at this site, the standing to sue and to make contracts in their own name. NB: I am not merely challenging the 'issuing of PCNs' because, of course, anyone could put a piece of paper on a car windscreen. This is a question of a lack of standing, title or specific authority from the landowner.

4. Unfair terms - Unenforceable Disguised Penalty
The sign & the Notice to Keeper are unclear, ambiguous & contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back which makes it a very cluttered and unclear Notice. The doctrine of 'contra proferentem' applies: this alleged contract was not agreed in advance (or at all) and as such, terms must be clear otherwise the interpretation that favours the consumer applies.

Further, the parking event is stated as a 'contravention' for 'breaching the terms' & this is repeated in the rejection letter. Yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a time-limited stay, a payment mechanism and a VAT invoice. There is none. This is a disguised penalty, which is not recoverable under contract law.

The OFT on UTCCR 1999:
Group 18(a): unfair financial burdens
'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 term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.

5. The NTK states the charge is for 'breach' so must prove it is a GPEOL.
This is really about breach of contract, so loss must be shown. The legal document (NTK) refers to 'breach of contract' & the rejection mentions 'loss to tenants, landowners and residents'. ParkDirect UK have failed to exempt their charge from the test that the charge must be a genuine pre-estimate of loss. The car park was not full and the driver was involved in a delivery to a resident, so they must show how this delivery caused initial loss and that the amount of the charge was a genuine pre-estimate of loss.




Here is another one that I wrote the other day about UKCPM who were also pretending the charge was a fee - it is similar in wording:

https://forums.moneysavingexpert.com/discussion/comment/65148860#Comment_65148860


If I was writing one now I would also add in this great quote from a POPLA Assessor, Marina Kapour, from a POPLA case won in the last few days:

''The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine preestimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.''




HTH - strong enough for a case where there is in fact no contractual sum involved., which is given away by the NTK, rejection letter and the signage when you really look at it. A PPC like Combined Parking Solutions or District Enforcement would need even stronger wording because they are a rare breed who try to make their charges look as if they really are a contractually agreed price for allowed parking. Hello Perky and Hello boys from DE! You'll look at this thread now because I have used your name haven't I?!

PoolieFritz

Good evening Coupon-mad, I have taken your examples and written a response for my POPLA appeal which takes note of this specific situation. Could I possibly PM you the letter for your consideration and advice or should I just post it here?

Many thanks

Stroma

Just post it here as coupon is on holidays right now

PoolieFritz

POPLA appeal - verification code XXXXX

1. Signs clearly not visible at entrance to car park – no contract with driver

Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. It is not enough to have some signs. Drivers entering the site are given no clue to there being any controlled parking in place due to the complete lack of appropriate signs at the entrance, as clearly shown in the following photographic evidence taken on XXX:

[photographs]

The only clear, visible signs are those advising ‘XXX XXX Shopping Precinct ENTRANCE’ and ‘Yasey’s Car Wash’. This is a clear breach of section B, paragraph 18.2 of the BPA’s 2012 Code:
“Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of…”

2. Signs within the site are unclear

Signs within the site do not state how long you can park, whether you should pay to park or how much you should pay to park. This directly contravenes advice stated in the ‘Signage’ section on page 2 of the BPA’s 2012 Consumer Guide:
“Signage: There will be a sign at the entrance to the car park that will explain in the broadest terms that the car park is private land and that it is managed by an AOS operator.
There will also be other signs in the car park itself which set out the terms and conditions for parking. These should be clear and easy to understand. The signs will say:

• how long you can park
• whether you should pay to park
• how much you should pay to park”

As per photographic evidence below showing a sign at the exit to the site, the signs do not state the required information:

[photo of sign]

3. NTK - no 'keeper liability'

The NTK fails to identify the 'creditor', state a 'period of parking' or meet the requirements of POFA. It is not for me to guess who the creditor is. It could be ParkDirectUK or 'ParkDirect UK Ltd' (both legal names are on the NTK). Or the creditor could be one of those who the letter states 'suffered loss', or their client, or another party.

It was an 'immediate' PCN, with no Grace Period, which breaches the BPA Code of Practice. No 'period of parking' on an NTK breaches POFA and it fails to repeat facts from the PCN - even the sum to pay is hidden in small print & it omits wording from paragraph 8 of Schedule 4 of POFA 2012. There is no 'keeper liability' from a fundamentally flawed NTK.

4. Agency agreement - no Locus Standi

This is a mere site agreement at best, a bare licence limited to 'issuing tickets'. There is no assignment of rights to pursue PCNs in the courts in their own name or to form contracts. A non-landowner private parking company must have a contract with the landowner - not an agreement with a managing agent - and it must comply with paragraph 7 of the BPA Code of Practice or there is no authority.

A site agreement or redacted contract will not suffice. I put ParkDirect UK Ltd to strict proof of their specific BPA compliant contract wording. If the client is a managing agent, I put this Operator to strict proof that the actual landholder authorised the managing agent to grant this parking operator, at this site, the standing to sue and to make contracts in their own name. NB: I am not merely challenging the 'issuing of PCNs' because, of course, anyone could put a piece of paper on a car windscreen. This is a question of a lack of standing, title or specific authority from the landowner.

5. Unfair terms - Unenforceable Disguised Penalty

The sign, the Notice to Keeper and the rejection letter are unclear, ambiguous and contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back which makes it a very cluttered and unclear Notice. Further, the NTK states a discounted payment amount of £60, whereas the rejection letter gives a discounted payment amount of £100 which again is confusing and contradictory. The doctrine of 'contra proferentem' applies: this alleged contract was not agreed in advance (or at all) and as such, terms must be clear otherwise the interpretation that favours the consumer applies.

This is not a transparent contract and is a disguised penalty so it is not recoverable in law:

The Office of Fair Trading guidelines re the UTCCRs 1999:
Group 18(a): unfair financial burdens
'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 term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.

PoolieFritz

I'd like to include a section addressing GPEOL but their refusal letter (links posted in comment #13) seems pretty tight, would appreciate any guidance on adding such a paragraph. Thanks!

Stroma

You should add on a genuine pre estimate of loss in the appeal, don't you make the decision whether they argument holds water, that must be determined by the assessor.

And if you want to add images to your appeal they should be printed out and added, popla Assessors will not click on links, and I wouldn't blame them.