POPLA appeal P4 Parking

Nameless

Hi All,

I am currently fighting for a POPLA code for a fake PCN received from P4 Parking.

However, I have been given a POPLA code for another PCN i received.

The initial rejection letter from P4 Nighthawk can be found here:

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I am drafting a POPLA appeal and will post here for feedback and comments.

Thanks all

Nameless

POPLA appeal:

Ive made a start on the appeal - first time - so please provide some feedback:

Dear POPLA Assessor,
Re: P4 Parking Nighthawk fake PCN, verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from P4 Parking Nighthawk.
On xxxxxx 2014, I found x parking charge notices on my car issued by P4Parking. The PCN numbers for each charge are: xxxxxxx (x a few) (see PCN attached).

My car was parked in the private estate as a visitor which for the apartment blocks on xxxxx. A visitors permit was acquired and the car was about to be moved to its visitors location when the PCN was issued. This permit was in my car but fell on the floor. The estate has numerous cars coming in and going, for loading, unloading, drop-off etc - there are no clear sings to inform drivers of the conditions of parking.
I believe that the charge (totaling £x00) is not a genuine pre estimate of loss incurred by P4Parking and is punitive, contravening the Unfair Contract Terms Act 1997. Additionally,P4Parking have not quantified their alleged loss or demonstrated any proprietary interest in the land.
I submit the following points to show that I am not liable for the parking charge:


1) No genuine pre-estimate of loss

1. The amount of the charge is not a genuine pre estimate of loss incurred by P4Parking and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because P4Parking have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee). Since there are no charges levied in parking cars on the estate in question then the charge is certainly excessive, since there are no losses to the landowner. The only losses that may be applied are those of the Landowner.
There was no damage nor obstruction caused so there can be no loss arising from the incident. P4 Parking Nighthawk notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that P4 Parking Nighthawk charge the same fixed charge to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

P4 Parking Nighthawk and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect P4 Parking Nighthawk might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... 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".

No doubt P4 Parking Nighthawk will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a Parking Eye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye’s generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.


2) Contract with the landowner - P4 Parking Nighthawk has no legal standing

P4 Parking Nighthawk do not own this private land and are acting merely as agents for the owner/occupier. P4 Parking Nighthawk have not provided me with any evidence that it is lawfully entitled to demand money from the driver, since they do not own nor have any interest or assignment of the title of the land in question. I do not believe P4 Parking Nighthawk has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract (as evidenced in the Higher Court findings in VCS vs HMRC 2012). I put P4 Parking Nighthawk to strict proof that they have the necessary authorisation at this location in the form of a signed and dated contract with the landowner, specifically evidencing the ability of P4 Parking Nighthawk to pursue parking charges themselves, to the courts. P4 Parking Nighthawk must provide documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier (not just a signed 'witness statement' slip of paper saying it exists). The date of the parking contract must pre-date the parking event and all clauses and detail must be readable; so a redacted version would suggest 'hidden' relevant information and will not suffice.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual unredacted contract document, then POPLA should be consistent and rule any such statement invalid.

Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Parking Eye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers. In Parking Eye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the Parking Eye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints Parking Eye as their agent, and clause 22, where is state’s there is no agency relationship between Parking Eye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between Parking Eye and motorists who used the land. This decision was followed by Parking Eye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in Parking Eye v Sharmathat a parking operator has no standing to bring the claim in their own name. On 23/01/2014 in Parking Eye v Mr James Gosnold case number 3JD02357 in the High Wycombe County Court, District Judge Devlin found the witness statement was worthless, then a heavily redacted contract was deemed as not satisfying the “relevant contract” provisions of PoFA 2012. The Judge informed the Claimant that the claim was doomed to fail on the locus standi issue (Parking Eye had no standing to bring the claim in their own name).

My case is the same in terms of the Operator having no standing.


3) The signage was not compliant with the BPA Code of Practice
The estate has numerous entrances and exits - they were not all sianged according to the BPA requirements. If P4 Parking Nighthawk claims otherwise, I request photographic proof of signage of all entrances at the time of the alleged contravention. I contend that the signs and any core parking terms P$ PArking are relying upon were too small for the driver to discern when driving in and that the signs around estate fail to comply with the BPA Code of Practice requirements . I request that POPLA should check the Operator's evidence and signage map/photos on this point. I contend that the signs in that car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach (as in the case of Excel Parking Services Ltd v Martin Cutts, 2011).

4) BPA CODE OF PRACTICE BREACH - NO 'CREDITOR' IDENTIFIED
The Notice I have received make it clear that P4 Parking 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'. P4 Parking 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 UKPC or indeed 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”.

5) Unfair terms - Breach of the Unfair Contract Terms Act 1977 and Breach of the Unfair Terms in Consumer Contracts Regulations 1999

This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:

‘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.’

The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. District Enforcement may argue that they do not have to show their 'contractual charge' related to any loss, but they do have to show that it was not an unfair term in law. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract, then it is unfair in that the signage was neither specific nor transparent as to what must be paid and in what circumstances.

In the Unfair Terms in Consumer Contracts Regulations 1999:-

''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.''

The Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However,...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend this describes the charge exactly as an 'unfair financial burden' which produces the same effect as a penalty clause. The charge is designed ostensibly to be a deterrent, but is clearly a disguised penalty issued by a third party which has no cause of action in this instance and, in any case, is not the landowner and has no assignment of title.

In view of the above appeal points, I request that the parking charge is cancelled by POPLA.

Yours faithfully,

Coupon-mad

The PCN numbers for each charge are: xxxxxxx (x a few) (see PCN attached).

You can only use the POPLA code for one PCN number - the one it was issued for.

As regards the POPLA appeal, all of this below is specific only to ParkingEye so remove it:

'P4 Parking Nighthawk and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect P4 Parking Nighthawk might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach.'' There is a presumption... 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".

No doubt P4 Parking Nighthawk will send their usual well-known template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a Parking Eye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept Parking Eye’s generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''The whole business model of an Operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre-estimate of loss in order to be enforceable against the appellant.''



Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against Parking Eye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers. In Parking Eye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the Parking Eye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints Parking Eye as their agent, and clause 22, where is state’s there is no agency relationship between Parking Eye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between Parking Eye and motorists who used the land. This decision was followed by Parking Eye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in Parking Eye v Sharmathat a parking operator has no standing to bring the claim in their own name. On 23/01/2014 in Parking Eye v Mr James Gosnold case number 3JD02357 in the High Wycombe County Court, District Judge Devlin found the witness statement was worthless, then a heavily redacted contract was deemed as not satisfying the “relevant contract” provisions of PoFA 2012. The Judge informed the Claimant that the claim was doomed to fail on the locus standi issue (Parking Eye had no standing to bring the claim in their own name).'



And this bit isn't a BPA breach at all, it's a POFA omission of wording (i.e. it's much more important than a mere BPA CoP breach, if you haven't named the driver):

4) BPA CODE OF PRACTICE BREACH - NO 'CREDITOR' IDENTIFIED

should be

4) NO 'CREDITOR' IDENTIFIED IN THE NTK - NO KEEPER LIABILITY ESTABLISHED UNDER POFA 2012.

Nameless

anyone else have any other input?

Coupon-mad

Post up how the draft looks now it's been trimmed!