Help with POPLA Appeal

ColliesCarer

Hi Bigp26,

I think that's looking really good.

I would suggest a few minor adjustments e.g using the term 'parking event' instead of the term 'parking violation' and there are a couple of extra things it would be useful to cover.

One is the self-ticketing (god knows who does that nor what sort of training they had) and the other is the ambiguity of the sign which is really a breach of contract but makes a pathetic and failed attempt to try to be a contractually agreed sum.

So would suggest inserting the following two paragraphs (highlighted below in blue) at the end of point 1)

There was no agreement to pay. No consideration/acceptance flowed - so no contract exists. Furthermore, if it was self-ticketing I require proof that the ticketer was trained in the BPA CoP & an explanation of why no grace period was allowed. In such conditions the BPA CoP does not allow ticketing.

The wording was unreadable and even if they could have been seen and read the terms are misleading, with words which attempt to dress up the charge as a 'contractual' fee. It is not; see point 2.

And to deal with the disguised contractual charge further I suggest changing the heading for point 2) and inserting two extra paragraphs at the beginning (as highlighted in blue).

2) The charge is for breach (not a contractual fee) and is not a genuine pre-estimate of loss but an unenforceable penalty.

Although certain wording on the example of the sign sent to me by the Operator attempts to claim that the sum sought is a contractual term, other wording on the sign contradicts this and shows the true nature is for breach, as the phrase ‘unauthorised parking will result in a Parking Charge Notice……' indicates.

In addition, in their rejection of my appeal the Operator states, ‘.…charges that may be imposed should these restrictions be breached’. It is, therefore, clear that the charge is for breaching the specific conditions stated. Parking by other drivers is NOT offered for a fee. It is not allowed. 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 shown to be a genuine pre estimate of the loss which may be caused by the parking breach.

The charge demanded far exceeds any loss to the landowner.........


I would also suggest strengthening and further emphasizing the inaccessible and unreadable nature of the signs - perhaps something similar to the wording below

after ...............on entering the area and in any lighting and all weather conditions.

Upon detailed inspection of the area, I finally saw that 2 very small signs were actually present on the walls to the left and right just as Rodwell Close is entered. These are however located very high up (I would estimate over 3 metres), and are unreadable when standing nearby on the pavement, let alone when driving past in a car. It would require a driver ...........

And I would either delete the words "outlining the contract" or change it to "outlining the alleged contract" in the line below

the print within the box outlining the contract will be less than 1.25cm, and the line at the bottom reading “Do not park here unless

The last sentence (shown below) in section 3) needs editing to refer to PPS.

This being the case, the burden of proof shifts to Parking eye. The driver expects Parking Eye to prove that they are not in breach of section 7.1 of the BPA code.

and would add after that sentence

I, therefore, put Private Parking Solutions (London) Ltd to strict proof of the contract terms with the site landowner (not an individual lessee or managing agent as they are another third party). A site agreement/witness statement saying they 'can issue Parking Charge Notices' will not suffice; this is not the issue. The whole unredacted contract is required to show what is authorised by way of charges and whether only for breach - and whether Private Parking Solutions (London) Ltd have the assignment of title or standing needed to pursue the matter in the courts in their own name.

Hope that's useful - wait and see what others think too

bigp26

Hi ColliesCarer,

Many thanks for the suggestions!

I have a few questions regarding some of your points:

- “The charge is for breach (not a contractual fee) and is not a genuine pre-estimate of loss but an unenforceable penalty.” Apologies, but I still can’t understand the difference between breach of contract and contractually agreed sum. What is the difference and which one is/should the PPC be using?

- “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 shown to be a genuine pre estimate of the loss which may be caused by the parking breach.” Again, sorry but I am lost!

Thanks again for all of your help! Please find an updated draft below,

P.

============

PCN No: xxxxxx
POPLA Code: xxxxxxxxxx

POPLA Postal Address

My Details
Issued: 15 March 2014
Reg:

12 April 2014.

Dear POPLA,

I am the driver of vehicle with registration number xxx xxxx and I contend that I am not liable for the parking charge as issued on 15 March 2014 by Private Parking Solutions (London) Ltd. I wish to appeal against the PCN notice on the following grounds.


1) No signage in vicinity – no contract with driver formed

The driver entered the road where there was an absence of signage in the vicinity. Along with the fact that multiple other cars were parked on the same road, the driver was lead to believe that the zone was unrestricted. To be clear, the driver neither saw any signs nor knew about any terms & conditions which governed the road where the alleged parking violation occurred.

Having revisited the location, I noted that the one sign which was cable tied to a council “Control Zone Ends” sign was only visible if approaching Rodwell Close from the left hand side. There was no such signage on the opposite side (which also has a “Control Zone Ends” sign, and therefore I would have not seen this as I approached Rodwell Close from the right. Please note that pictures of these signs have been attached. Upon closer inspection of this cable tied sign, I notice that it does not contain any terms and conditions and hence even if I had seen this, a contract would not have been formed: to be relied on as having formed a contract, all terms and conditions must be readable, understood and agreed to by any driver (elderly, disabled, short sighted etc) on entering the area and in any lighting and all weather conditions.

Upon detailed inspection of the area, I finally saw that 2 very small signs were actually present on the walls to the left and right just as Rodwell Close is entered. These are however located very high up (I would estimate over 3 metres), and are unreadable when standing nearby on the pavement, let alone when driving past in a car. It would require a driver to walk across grass verges, stand in a flowerbed and use a ladder to read the text within them. Even if such extreme measures were taken, the font was so small that most people would still struggle to read such text. As well as this, none such signs were available in the vicinity to where I had parked, which was approximately half way down the road.

Please can I also draw your attention to the example sign which was provided by Private Parking Solutions (London) Ltd in response to my original appeal. Using the measurements of the sign as provided, I have estimated that the largest print on this sign will be less than 2.5cm, the print within the box outlining the alleged contract will be less than 1.25cm, and the line at the bottom reading “Do not park here unless you agree to the terms & conditions displayed” is less than 0.5cm. To insist that such text is readable from the pavement approximately 10 feet below the sign is ridiculous and unacceptable. As such, I reiterate my point and appeal that no contract with the driver was formed as there was an absence of signage in the vicinity of the alleged parking violation (please also see attached photos).

There was no agreement to pay. No consideration/acceptance flowed - so no contract exists. Furthermore, if it was self-ticketing I require proof that the ticketer was trained in the BPA CoP & an explanation of why no grace period was allowed. In such conditions the BPA CoP does not allow ticketing.

The wording was unreadable and even if they could have been seen and read the terms are misleading, with words which attempt to dress up the charge as a 'contractual' fee. It is not; see point 2.


2) The charge is for breach (not a contractual fee) and is not a genuine pre-estimate of loss but an unenforceable penalty.

Although certain wording on the example of the sign sent to me by the Operator attempts to claim that the sum sought is a contractual term, other wording on the sign contradicts this and shows the true nature is for breach, as the phrase ‘unauthorised parking will result in a Parking Charge Notice……' indicates.

In addition, in their rejection of my appeal the Operator states, ‘.…charges that may be imposed should these restrictions be breached’. It is, therefore, clear that the charge is for breaching the specific conditions stated. Parking by other drivers is NOT offered for a fee. It is not allowed. 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 shown to be a genuine pre estimate of the loss which may be caused by the parking breach.

The charge demanded far exceeds any loss to the landowner. If it exceeds any loss, it becomes a penalty.

The £100 charge asked for far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the road or “car park” is apparently for parking permit holders only. The Borough of Hillingdon’s website also states that residents receive 1 free parking permit and 10 free visitor parking vouchers per annum. It also states that additional permits can be purchased for £40 (equating to 11p per day), and an additional sheet of 10 vouchers can be purchased for £5 (equating to 50p per day). In the appeal Private Parking Solutions (London) Ltd did not address this issue, and has not stated why they feel a £100 charge is an appropriate pre-estimate of loss.

For this charge to be justified a full breakdown of the costs Private Parking Solutions (London) Ltd has suffered as a result of the car being parked on the road or “car park” is required and should add up to £100.

Normal expenditure the company incurs to carry on their business (e.g. provision of parking, parking enforcement or signage erection) should not be included in the breakdown, as these operational costs would have been suffered irrespective of the car being parked at that car park.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


3) Lack of Proprietary Interest & non-compliant Contract with Landowner

Private Parking Solutions (London) Ltd’s lack of title or assigned interest in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis, as they are not the landowners and I have seen no evidence of a compliant contract with the landowner.

I do not believe that Private Parking Solutions (London) Ltd has demonstrated a proprietary interest in the land, because they have no legal possession which would give Private Parking Solutions (London) Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers.

I believe there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant.

In addition, Private Parking Solutions (London) Ltd lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge

The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Private Parking Solutions (London) Ltd. The driver expects Parking Eye Private Parking Solutions (London) Ltd to prove that they are not in breach of section 7.1 of the BPA code.

I, therefore, put Private Parking Solutions (London) Ltd to strict proof of the contract terms with the site landowner (not an individual lessee or managing agent as they are another third party). A site agreement/witness statement saying they 'can issue Parking Charge Notices' will not suffice; this is not the issue. The whole unredacted contract is required to show what is authorised by way of charges and whether only for breach - and whether Private Parking Solutions (London) Ltd have the assignment of title or standing needed to pursue the matter in the courts in their own name.

Kind Regards,
FirstName LastName.

ColliesCarer

Hi bigp26

1/ Breach of contract = claiming for damages because the rules of the alleged contract were broken so the charge must be a genuine loss - therefore the POPLA challenge is that it is not a genuine pre-estimate of loss and if they can't prove that it is then it becomes an unenforceable penalty

2/ A contractually agreed sum is a fee specified within the terms of a contract i.e. the price to be paid for x amount of parking.

Your PPC are attempting to say the charge is a contractually agreed sum but they fail - it isn't. Because

In order for there to be a contract there must be an offer, acceptance and an exchange of ‘consideration’ between the parties (i.e. each party must receive something of value from the other). If only one party receives the ‘consideration’ there can be no contract.

So it can’t be 2/ if what you are being asked to pay for is something that is NOT allowed because, clearly that’s a nonsense and, it fails to establish the essential requirements of a contract because there is no exchange of consideration when you are being asked to pay but get nothing in return.

So if it's not 2/ then it's actually 1/ i.e. damages for breach of contract

Hence this paragraph

“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 shown to be a genuine pre estimate of the loss which may be caused by the parking breach.”

which could be re-phrased as

“Clearly, permission to park can not be granted when parking isn't allowed 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 shown to be a genuine pre estimate of the loss which may be caused by the parking breach.”

You might find it useful to to take a look at other examples of each type:

Parking Eye are a PPC that typically use a breach of contract model so search the forum for recent Parking Eye POPLA appeals and if you Google “ParkingEye sign” and look at images you will see examples of the Breach of contract type signage, which uses wording such as “failure to comply will incur a charge of £X”

Other PPC's that also attempt but fail to use contractual terms can be found in this recent thread for UKCPM - take a look at the photos of the signs the OP posted for an example - very similar wording the sign your PPC is using

https://forums.moneysavingexpert.com/discussion/4899567

And also in this one for Athena ANPR which also try to use a contractual fee model but fail

https://forums.moneysavingexpert.com/discussion/4936219

Coupon-mad

If you haven't sent it yet, change these to 'the driver' or 'they':


...therefore I would have not seen this as I approached Rodwell Close from the right. Please note that pictures of these signs have been attached. Upon closer inspection of this cable tied sign, I notice that it does not contain any terms and conditions and hence even if I had seen this...


Apart from that it looks good to go! :T

Sparky099

Hi,
New to the forum and would appreciate any help with this.

I live in the Channel Islands and have just received a Final notice for a PCN (£100.00)from Parking Eye for being in a car park for an extra 14 minutes whilst using a hire car. Can they take me to court as I live in the Channel Islands? I originally received the info from the hire car company, who passed on my details to Parking Eye, who are chasing me direct. Not sure what to do? Thanks for any help given.

Coupon-mad

Send the template appeal in the NEWBIES thread, even if late (send it ONLINE). Add a point #4 that you are in the Channel Islands and if they take you to court over this matter you will defend it robustly, are aware that they lose cases regularly now and as such, you will claim costs for your flight and other expenses.

You need to get off this thread as it's not yours, click one click (see my signature) to page one to read current advice including the NEWBIES sticky thread at the top.

NO REPLY HERE PLEASE except of course from bigp26.

bigp26

Hello all!

Quick update for you all - I received a reply from POPLA and have won the appeal!

HOWEVER...

I received a letter from a debt collection company yesterday! As the car is under my mother's name this came as a bit of a shock and both my elderly parents are now stressed out about the car getting towed away!

What rights do I have for this? Surely this is harassment? I spoke to the PPC today and they said they weren't even aware that a POPLA appeal had been made! I subsequently forwarded on the confirmation from POPLA and they said they would speak to the debt collection company.

I however don't trust these thieving scum and wanted to notify the debt collection company myself - So I called them but was greeted with exceptionally rude service as they wanted to speak to my mother and not me!

What should be my next steps? Is this going to show up on my mother's history?!

Many thanks in advance - your help is much appreciated!

P.

Dee140157

Ok

First of all nothing is going to happen to your mum's car credit history, or any other possession she may have.

These are debt collectors letters, not bailiffs letters. They have no legal standing at all.

However you should not be receiving them. You need to fire a very strongly worded email off to BPA complaining like mad about the PPC.

Whilst we usually say not to bother getting in contact with debt collection agencies as this makes you seem like a live target and they persist all the more, in this case I would send a strongly worded letter telling them to cease and desist contact with you as you do not owe any money, giving details of your winning appeal. Tell, them if you do hear again you will be taking them to court for harassment.

Umkomaas

Debt collectors can't tow anything away, so tell your parents there is absolutely nothing to concern them. You've won at POPLA, and maybe, just maybe the PPC will do the honourable thing and call off the DCA dogs.

Just so you know the logistics that would have to be satisfied for 'a tow' would be as follows

1. You lose your PCN appeal to the PPC
2. You appeal to POPLA and lose
3. You refuse to pay your PCN after POPLA decision (which you are entitled to do)
4. The PCN issues a LBCCC
5. The PPC issues MCOL (court) papers
6. You submit your defence
7. You appear at the county court
8. The Judge finds against you
9. The Judge makes an order against you
10. You have 28 days to pay the amount the Judge orders you to pay
11. You fail/refuse to pay the order
12. The PPC makes an application to the court for bailiffs to be appointed
13. Bailiffs appointed
14. Bailiffs approach you for payment
15. You refuse payment
16. Bailiffs turn up at the crack of dawn
17. Bailiffs clamp the vehicle
18. Bailiffs demand payment
19. You refuse to make payment
20. Bailiffs call a tow truck
21. Tow truck turns up
22. You still refuse to make payment
23. Tow truck lifts the vehicle
24. You still refuse to make payment
25. Tow truck disappears over the horizon with your vehicle

Or something like that (I may gave missed a few stages!!). Now please convince your parents that there's not a chance in a million of their worst nightmare ever materialising in this case.

bigp26

Many thanks Umkomaas!

Maybe my father will leave the car on the drive rather than the garage (lol - he saw a tow truck near our road and decided he would put the car in the garage just in case).

In terms of next steps what would you recommend? Is there any way that such incompetence by the PPC would mean that a bad debt/debt collection record will be placed on my mother's records? (they are just as worried about this as the car being towed!).

Kind Regards,
Pav.