Park Direct UK PCN, would greatly appreciate any advice

da_rule

Stroma wrote: »

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.

Or if you're submitting the appeal online upload them as evidence and just make reference to them in the text (give them file names that you can refer to).

Umkomaas

PoolieFritz wrote: »

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!

The stuff they've listed under GPEOL in their reply to you does, I'm afraid, stitch things up 'pretty tight'.

Unfortunately for them, it's they who are well and truly stitched up.

Most on this list are business running costs which would occur whether or not you parked in 'contravention' of their trumped up rules. These 'losses' have been adjudicated upon endless times before by POPLA - all in favour of the motorist.

Build in a standard GPEOL appeal point from the examples in the sticky.

Coupon-mad

PoolieFritz wrote: »

page 1: http://i1294.photobucket.com/albums/b611/PoolieFritz/PCN/2014-04-04pg1of3_redacted_zpsafd82448.jpg
page 2: http://i1294.photobucket.com/albums/b611/PoolieFritz/PCN/2014-04-04pg2of3_redacted_zps092047bc.jpg

PoolieFritz wrote: »

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

It is not water-tight and will not fool POPLA, don't worry!

You have missed out my point #5 above, which would be your point #6 and I have tweaked the wording to suit and added a second paragraph in the same heading, which quotes from a POPLA Assessor so that they should recognise the reasoning (makes their job easier!):



6. The NTK states the charge is for 'contravention' and the signs declare this parking event 'unauthorised' so this Operator must prove a genuine pre-estimate of loss.
This is really about breach of contract, so loss must be shown. The legal document (the postal PCN which serves as the Notice to Keeper) refers to 'contravention' and the sign describes the circumstances which lead to a PCN as being 'unauthorised'. In addition, in their rejection letter ParkDirect have described the event as a 'breach of contract'. As such, it is not a contractually agreed fee to park and so they have failed to exempt their charge from the basic contract law and BPA Code of Practice requirement that a charge for contravention or breach must wholly comprise a genuine pre-estimate of loss. This is a free car park and the normal effect of a double yellow line in the Highway Code in fact allows loading/unloading as a specific exemption. As such, this is a normal parking event, causing no obstruction, no breach of signed terms at that spot and certainly no loss to the landowner, retailers or this Operator. If ParkDirect had intended to create a 'no stopping zone' then as was explained by the Lead Adjudicator in the POPLA Annual Report 2013, the area must be clearly signed as a no-stopping zone (e.g. double red lines or yellow hatching or at the very least, double yellows plus kerb blips and adjacent signage stating 'no stopping/loading'). The fact is that the car was legitimately stopped temporarily to collect items, in accordance with the normal meaning for double yellow lines merely on the ground with no other signs adjacent signs at that kerbside area. Therefore, this Operator cannot demonstrate any initial quantifiable loss caused by the car being stationary in that section of the car park in order that the driver could be close enough to collect an item from a shop, which took mere minutes.

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. The Operator has stated that if there were no breaches, their 'costs' would not exist but in looking at their list of heads on the rejection letter, the opposite is true. They have listed normal operational costs and tax-deductible back office functions and no initial loss has been shown from which any other costs could possibly flow as a direct consequence of this parking event. The Operator would in fact 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.





By the way I am off on another mini-break somewhere in the UK from tomorrow until Easter so I might just take some photos of a notorious car park (clue - a ParkingEye one!).

4consumerrights

OOh coupon - enjoy your break - (Newquay perhaps?)
you may even be lucky enough to pick up a parking charge driving around looking for a space to park!

To the OP - this is a self - ticketer who uploads photos directly to Park Direct - it neither complies with the criteria for windscreen tickets or for those issued by traditional ANPR - some Ntk arrive at erratic times.

DO NOT IDENTIFY the driver here for you or your friend as Park Direct NtK's are (as coupon states) not compliant under POFA

This site is coming up more frequently and I believe the sports/bingo? hall own it.

PoolieFritz

Again, many thanks for your replies - the support on here really is second-to-none!

PoolieFritz

Along with Coupon-mad's excellent GPEOL addition and following further reading on this forum, I have changed Section 3, 'no keeper liability' in my appeal letter and also wanted to add a third paragraph to Section 4, Agency agreement - no Locus Standi, after reading info in trisontana's post #991 in the POPLA Decision thread (forums.moneysavingexpert.com/showpost.php?p=65252563&postcount=991), in which the assessor states, "I note with concern that the Operator has provided a copy of its contract with the land owner to POPLA only..."

This shall be my final draft unless there are any further suggestions...thanks again!

---

POPLA appeal against ParkDirect UK - verification code xxx

I am the registered keeper of the vehicle and wish to appeal against the Operator, ParkDirect UK.

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 Cross Court 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 of site entrance]

The only clear, visible signs are those advising ‘Cross Court Shopping Precinct ENTRANCE’ and ‘Yasey’s Car Wash’. This is a clear breach of section B, paragraph 18.2 of the British Parking Association’s 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 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. BPA Code Of Practice breach - no 'creditor' identified – no ‘keeper liability’
The Notice I have received makes it clear that ParkDirect UK is relying on Schedule 4 of the Protection of Freedoms Act 2012. As such, there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged 'charge'. ParkDirect UK has failed to comply in the wording of their Notice to Keeper since they have failed to identify the “Creditor”. This may, in law, be ‘ParkDirect UK’ or ‘ParkDirect UK Ltd' (both legal names are on the NTK) or indeed their client or some other party. The Act requires a Notice to Keeper to have words to the effect that “The Creditor is….” .

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not indicate that the “creditor must be named, but “identified”. The driver is entitled to know the identity of the party with whom he has allegedly contracted and in failing to specifically identify the “Creditor”, ParkDirect UK has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.

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 and it omits required wording from paragraph 8(2)(c) of Schedule 4 of POFA 2012 which states that “The notice must…inform the keeper… that the parking charges have not been paid in full” . 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 for ParkDirect UK 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 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. N.B.: 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.

Further, I believe that ParkDirect UK should ensure that all evidence on which it seeks to rely is forwarded to me, otherwise it cannot be considered at the POPLA appeal stage, and clearly they have denied me that right in their rejection letter dated xxx by refusing to provide me with a copy of the legal agreement between themselves and 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.

6. The NTK states the charge is for 'contravention' and the signs declare this parking event 'unauthorised' so this Operator must prove a genuine pre-estimate of loss.

This is really about breach of contract, so loss must be shown. The legal document (the postal PCN which serves as the Notice to Keeper) refers to 'contravention' and the sign describes the circumstances which lead to a PCN as being 'unauthorised'. In addition, in their rejection letter ParkDirect have described the event as a 'breach of contract'. As such, it is not a contractually agreed fee to park and so they have failed to exempt their charge from the basic contract law and BPA Code of Practice requirement that a charge for contravention or breach must wholly comprise a genuine pre-estimate of loss. This is a free car park and the normal effect of a double yellow line in the Highway Code in fact allows loading/unloading as a specific exemption. As such, this is a normal parking event, causing no obstruction, no breach of signed terms at that spot and certainly no loss to the landowner, retailers or this Operator. If ParkDirect had intended to create a 'no stopping zone' then as was explained by the Lead Adjudicator in the POPLA Annual Report 2013, the area must be clearly signed as a no-stopping zone (e.g. double red lines or yellow hatching or at the very least, double yellows plus kerb blips and adjacent signage stating 'no stopping/loading'). The fact is that the car was legitimately stopped temporarily to collect items, in accordance with the normal meaning for double yellow lines merely on the ground with no other signs adjacent signs at that kerbside area.

Therefore, this Operator cannot demonstrate any initial quantifiable loss caused by the car being stationary in that section of the car park in order that the driver could be close enough to collect an item from a shop, which took mere minutes.

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. The Operator has stated that if there were no breaches, their 'costs' would not exist but in looking at their list of heads on the rejection letter, the opposite is true. They have listed normal operational costs and tax-deductible back office functions and no initial loss has been shown from which any other costs could possibly flow as a direct consequence of this parking event. The Operator would in fact 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.

I respectfully request that my appeal be upheld and the PCN cancelled.

Signed:

Dated:

bod1467

I am the registered keeper of the vehicle and wish to appeal against the Operator, ParkDirect UK. My points of appeal are summarised as below, and the details of each point are contained within this appeal.

1. Signs clearly not visible at entrance to car park – no contract with driver
2. Etc.
3. Etc.
4. Etc.
5. Etc.
6. Etc.

Is the only suggestion I would make. (i.e. make it easy for the assessor to find the appeal point they want to use for you to win).

PoolieFritz

I have just submitted my POPLA appeal online, am I correct in thinking that it takes around 6-8 weeks for POPLA to give their decision on the appeal?

I seem to recall reading it somewhere on the forums but cannot seem to find it any longer.

da_rule

That is the guidance although it can take longer. In their reply to you they should give you some indication of when the matter will go before an assessor.

PoolieFritz

Good news folks, I was notified of my win at POPLA on Friday, thank you so much for all your help! I'll post the details on the POPLA Decisions thread soon. Thanks again!!