POPLA Appeal Letter check

ramenkid

Hi Guys,

Park Eye has rejected my first appeal so I'm now onto POPLA, got to send this off in the next few days. Park Eye captured the number plate clearly on the pictures coming in and out the carpark. I overstayed 11 minutes and they demand £70 (£40 if pay earlier - I have missed that though).

I have drafted a letter after some reading/research on a few sites, please can you guys have a look and see if it's ok? It's very long but I guess there are enough reasons there.

Any feedback would be very much appreciated.

Thanks.


Dear Sir/Madam,

I appeal against the decision of Parking Eye Ltd because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass.


My appeal points are (Details of the these points will follow in this letter):

1. Unlawful penalty charge
2. Not a genuine pre-estimate of loss
3. No valid contract with landowner
4. No contract with the driver
5. Unfair terms
6. Unreasonable

The operator does not appear to own the XXXXXX car park and is assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, The operator has not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since it holds neither interest, nor assignment of, title of the land in question.

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

So a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above, is the only acceptable item as evidence that a contract exists and authorises the Operator to write 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 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 Operator 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 stated, "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 the Operator asserts, a contractual term. If they were a contractual term, the Operator 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 the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

The Operator also make reference in their appeal refusal of (date) to “seek to recover the monies owed to us” and makes no reference to the Landlord at all.

7.1 of the BPA code of practice makes it a requirement that Parking Eye either own the land, or have the written authorisation of the land owner to enable them to operate on the land. I, as registered keeper, put Parking Eye to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerus task to produce the contract as secttion 8.1 of the code means it has to be available at all times.

19.5 of the code of practice states, “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,”

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was not full and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Parking Eye lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICESLIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by PoPLA itself in adjucation.

I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% by early payment that it is unreasonable to begin with.

1. Unlawful penalty charge

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator is either charging for losses or it is a penalty/fine.

The operator uses an invoice or request for monies, but headed “PARKING CHARGE NOTICE” to pass for an official Penalty Charge Notice, which only Police and Council Wardens can issue.


2. Not a Genuine Pre-estimate of loss

The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue at a retail outlet.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location.

The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time.

Note: the charges demanded by the operator as "genuine loss" are those allegedly incurred at the point of issuing the charge, and can not include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.


3. No valid contract with landowner

It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner ,has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.


4. No contract with the driver

There is no contract between Parking Eye and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

5. 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."

6. 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.”

I further contend that Parking Eye have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.

I would contend that this appeal should be allowed for these reasons.

Yours Faithfully,
XXXXXX

da_rule

All of your text above your first point needs to be given a heading and number. Something along the lines of "No standing to bring a claim".

Coupon-mad

Apart from that it is fine but very blue!

ramenkid

Thanks for the replies.

I have just submitted the appeal letter online. How long will it take for POPLA to reply? Will I need to send a printed letter by post just to be sure as there is no reference number given for my online appeal?

Thanks.

Coupon-mad

No need to post as well; you should get an email reply soon from POPLA giving you a decision date (likely to be in late May/early June).

ramenkid

I have just got POPLA's decision today which I won the appeal. On the letter, it says 'The Operator should now cancel the parking charge notice forthwith.'.

Is it there anything I have to do now? Will I need to contact Parking eye to tell them to cancel my parking charge?

Thanks guys.

da_rule

Nope, you don't have to do anything. POPLA will send a copy of the decision to ParkingEye who should send you a letter in a couple of weeks saying the charge has been cancelled.

Could you please post the text of the POPLA result (minus any identifiable information) on the POPLA result thread: https://forums.moneysavingexpert.com/discussion/4488337

This thread is again a shining example of what can be accomplished using the resources on this (and other) forums, without having to ask countless, inane, questions.

ramenkid

Thanks da_rule， i have now posted my appeal response on the provided link.

Thanks very much. :beer: