Permit visable but not on windscreen

AoD

PCM do this as well though theirs is hidden at the top of their rejection letter.

The POPLA newsletter from November 2013 stated;

"Rather than just a reference, the verification code should be clearly identifiable as such, for example:

Your verification code, which you will need to appeal to POPLA, is XXXXXXXXXX."

It is clear that some PPCs are not doing this.

Coupon-mad

Just draft a 'normal' MSE version of a POPLA appeal using an example that's NOT about ANPR Camera postal PCNs, from the NEWBIES thread linked examples. Or by searching for POPLA appeals on here on any threads about windscreen tickets. You will need to adapt it and start it 'I am the driver and...' (instead of the usual 'I am the rk and'). That sign is nothing to worry about as it says you get a PCN for 'contravening'. Slam-dunk, they HAVE to show a GPEOL so point that word 'contravening' out in your POPLA appeal where you talk about no GPEOL.

You can also mention in the introduction, what AoD said above!

BritishBeef

Hi Coupon-mad. Thank you very much for your help again

Here's a draft letter for my appeal. I haven't added in the bit about Premier Park's signage regarding the word 'contravening' as I am really unsure how to word it? Could someone help me with this please?

POPLA Code: xxxxxxxxxxxxx
Vehicle Reg: xxxxxxx
PPC: Premier Park Ltd
PCN Ref: xxxxxxxxx
Alleged Contravention Date & Time:
Date of PCN: xxxxxxxxxxx

Dear Sir/Madam.
On 18th March 2014 a Penalty Charge Notice was attached to my vehicle by Premier Park Ltd requiring payment for a charge of £100 for an alleged parking contravention. I was the driver of the vehicle in question and I would like to appeal this notice on the following grounds:


1. Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."

2. Contract with the landowner - not compliant with the BPA code of practice and/or no legal status to offer parking or enforce charges

Premier Park Ltd do not appear to own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Premier Park Ltd has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I require Premier Park Ltd. to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

Contracts are complicated things, so a witness statement signed by someone is not enough, neither is a statement that a person has seen it. A copy of the original showing the points above is the only acceptable items as evidence that a contract exists and authorises Premier Park Ltd the right, under contract to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Premier Park Ltd. has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as Premier Park Ltd asserts, a contractual term. If they were a contractual term, Premier Park Ltd would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that Premier Park Ltd’s charges are in fact damages, or penalties, for which Premier Park Ltd must demonstrate their actual, or pre-estimated, loss, as set out above.

Premier Park Ltd also makes reference in their appeal refusal of 10th April 2014 to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.

3. Unreasonable

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”


4. Charge not a genuine pre-estimate of loss

The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.
The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.



I therefore respectfully request that my appeal is upheld and the charge is dismissed.




Yours Faithfully,

Coupon-mad

Well I would put no GPEOL first and add in the wording as shown, try this instead:


POPLA Code: xxxxxxxxxxxxx
Vehicle Reg: xxxxxxx
PPC: Premier Park Ltd
PCN Ref: xxxxxxxxx
Alleged Contravention Date & Time:
Date of PCN: xxxxxxxxxxx

Dear Sir/Madam.
On 18th March 2014 a Penalty Charge Notice was attached to my vehicle by Premier Park Ltd requiring payment for a charge of £100 for an alleged parking contravention. I was the driver of the vehicle in question and I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss
Their sign states the charge is for 'contravening terms' and the rejection letter mentions 'breach' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event. The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice which states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract...this charge must be based on the genuine pre-estimate of loss that you suffer.

This Operator cannot demonstrate any initial quantifiable loss. 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. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would 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.

2. Contract with the landowner - not compliant with the BPA code of practice and/or no legal status to offer parking or enforce charges
Premier Park Ltd have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Premier Park are entitled to demand money from me as a permit-displaying driver, fully authorised to park there.

I require Premier Park Ltd. to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

3. Unclear signage - no contract with driver to pay £100 under these circumstances
As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contract for me to pay £100. I relied upon the legitimate expectation that the vehicle would not be 'ticketed' when it was parked with a valid permit on the central console, because I took steps to ensure the permit was indeed visible from any angle when looking at that area through the windscreen. No contravention occurred because the loosely-worded sign says the permit must be displayed in the 'windscreen area' which is a very general sentence and does not require the permit to be attached anywhere specific nor even to be on the dashboard at all.

Therefore, the signage is not drafted in a specific, clear and transparent manner. If the Operator wished to insist that a permit must be attached to the windscreen itself or placed specifically on the dashboard, then they had ample opportunity to word their signs accordingly. Terms are only imported into a contract if they are clear so that the party 'must' have known of it and agreed. It is not enough to have some signs on site; in this car park the wording is woolly and unclear and so 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 must prevail.

4. Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a car displaying a permit in the 'windscreen area' with full authority of the resident to park in that bay. I put this Operator to strict proof to justify that their charge, under the circumstances described and with the loose wording on their signs in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Yours Faithfully,


DRIVER'S NAME

BritishBeef

Thank you so very much Coupon-mad - that's brilliant!

I'll get this sent off first thing tomorrow. First class post with proof of posting it would seem from the posts on this - is that right?

Also, do I need a covering letter or can I just send it as is but with the first page with a formal letter layout?

Regards,

BB.

Coupon-mad

If posting (yep, 1st class with free cert of posting from the PO Counter) you would send it with a POPLA form, looks like this below, with verification code & details filled in and the 10 digit code on it and on the letter (STAPLED SECURELY TOGETHER, no paper clips!):

https://docs.google.com/file/d/0B160FlN9Mss2ZFhqZnZqTzFIUUE/edit

I think maybe there should be a back page so look to download that form on the POPLA or BPA website. Tick 3 out of 4 appeal boxes (not the stolen car one).

Or just submit it on the POPLA website for electronic appeals. Most people do that. No need to post it at all and then you know POPLA have it.

BritishBeef

Coupon-mad wrote: »

If posting (yep, 1st class with free cert of posting from the PO Counter) you would send it with a POPLA form, looks like this below, with verification code & details filled in and the 10 digit code on it and on the letter (STAPLED SECURELY TOGETHER, no paper clips!):

https://docs.google.com/file/d/0B160FlN9Mss2ZFhqZnZqTzFIUUE/edit

I think maybe there should be a back page so look to download that form on the POPLA or BPA website. Tick 3 out of 4 appeal boxes (not the stolen car one).

Or just submit it on the POPLA website for electronic appeals. Most people do that. No need to post it at all and then you know POPLA have it.

Thanks again.

POPLA's site just have that front page form to download - there's no back page on there nor the BPA's site so presumably that's all I need.

BritishBeef

I've now submitted the appeal online and will also send a hard copy in the post in the morning. Thanks for everyone's help - especially Coupon-mad :T. Fingers crossed!

BritishBeef

Just seen the e-mail confirmation from POPLA. It has a copy of the appeal I submitted but it has removed all formatting so the whole neatly spaced appeal is now one solid block of text. How are they supposed to read through that?!

Coupon-mad

Dunno but it always happens - must be a glitch of their confirmation email. No worries.