help

AoD

No, this has nothing to do with POPLA. You need to go here;

http://www.theipc.info/#!independent-appeals-service/citr

beverley1296

AoD wrote: »

No, this has nothing to do with POPLA. You need to go here;

http://www.theipc.info/#!independent-appeals-service/citr

So am I ok still forwarding the template above after I change it for my circumstances (morrisons one)

beverley1296

I have just googled the address and on the photo there it shows a sign with big lettering saying WARNING the sign they have up now has a small blue P no warning as you approach it. So the warning one has been replaced seems to me to catch unsuspecting people out.

AoD

Post your draft appeal here so the experts can give it a final check. If this is a so called contractual charge rather than a breach you need to make sure the appeal is worded correctly.

ampersand

AoD is right on the money for you beverley, Follow that advice.

Just out of interest, from your post 7, do they really write 'you may of supplied'?, not 'have'?

beverley1296

ampersand wrote: »

AiD is right on the money for you beverley, Follow that advice.

Just out of interest, from your post 7, do they really write 'you may of supplied'?, not 'have'?

I copied and pasted it, that is exactly what they emailed.

beverley1296

I have just read the ticket and it is saying No Valid Parking Permit, yet I have looked and I cannot see where it says permit holders only, the parking area is outside a lock shop so why would she need a permit? What if she had of been a customer?

Here is what I am considering sending, hope I have worded it right.

Dear Sir/Madam,

Re: Blackpool Parking Awareness PCN, verification code XXXXXXX

I am the registered keeper and I wish to appeal a recent parking charge from Parking Awareness I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
I parked in a parking space and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. Parking awareness notices allege 'No valid parking permit, and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that Parking awareness charge the same for a two minute stop as they do for an hour it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

This charge from Parking Awareness as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

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.

Parking Awareness and IAS 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 Parking Awareness 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 Parking Awareness 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 ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye'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 the IAS and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

2) No standing or authority to pursue charges nor form contracts with drivers
Parking Awareness do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to IAS, I assert that there are persuasive recent court decisions against ParkingEye which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye 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 ParkingEye and motorists who used the land. This decision was followed by ParkingEye 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 ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

3) Flawed landowner contract and irregularities with any witness statement
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require Parking Awareness to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

CPUTR 2008 Part 2, Prohibitions
Misleading omissions
6(1) A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—

(a)the commercial practice omits material information,
(b)the commercial practice hides material information,

and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.

Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'
''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...''
Test of fairness
''A term is unfair if:
Contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

If they refute this then Parking Awareness must explain their position to IAS, produce the unredacted section of the contract and/or User Manual and show how they consider they can override the express wishes of the principal when Parking Awareness are mere agents. And explain how their secret 'exemption clause' meets the test of fairness if they do not share it with the party they hold liable. Such terms must be in the signage they are relying upon to have formed the alleged contract at the outset.

5)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between Parking Awareness and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Parking Awareness are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only 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. In breach of Appendix B (Mandatory Entrance Signs) Parking Awareness have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on walls and were not read nor even seen by the occupants of the car. In google images taken some time previous at the same spot on Chxxxxxx Road xxxxxxxxx where the parking area is, the signs warning were lot larger prior to me parking, for some reason these signs have been reduced significantly, I can only imagine this is to catch people unaware. I have enclosed before and after photos.

6) ANPR Accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Parking Awareness have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

I request that my appeal is upheld and for IAS to inform Parking Awareness to cancel the PCN.

Yours faithfully,

ColliesCarer

Hi Beverley,

DONT send any appeal in yet.

This wording on the rejection letter

"Not fully displaying a valid permit and therefore agreeing to pay consideration in the form of a Parking Charge Notice"

indicates your appeal will need special wording. The appeal you have posted will not be suitable.

Can you get a photos of the sign or could someone do it for you - then load them onto a photo sharing site like photobucket or tinypics and post the link to it here.
We could do with seeing exactly how it's worded?

beverley1296

Will try and upload photos tomorrow, thank you for your help xx

ColliesCarer

Thanks Beverley,

You mentioned the driver was a new driver - are they under 18 by any chance?

If you could also take a photo of the original windscreen ticket it would be useful to see the wording on that too but blank out anything that could identify who the ticket was issued to and exactly when.

Also what date was the rejection letter/email that contained the IAS code received - I think you have to get an IAS appeal in within 21 days