Advice following rejection of appeal by NCP

dw801

On 22 Mar, having paid the correct fee and obtained a ticket I parked at the NCP car park at Shenfield station in Essex. The ticket was of the simple paper kind and could not be stuck to the windscreen. I placed the ticket in clear sight on the top of the dash. Before I left the car I realised the driver's door wasn't shut properly, so I quickly opened and closed it. On returning I saw the penalty notice and saw the ticket must have been blown upside down when I opened the door the second time (it was a blustery day). The penalty notice was for parking without clearly displaying a valid permit.

This is the first parking ticket I've had in many years and I only had a day or two to act before I went overseas on holiday, so I did an on line appeal to NCP, setting out the circumstances described above. There was no facility to attach a scanned copy of the ticket so I set out all the information on the ticket and offered to,provide the original. The appeal was rejected on the grounds that 'due to the misuse of our parking facilities, and the fraudulent use of permits being widespread, we cannot accept copies (or originals).

Having read the guidance on here I wish I'd seen this site at the outset. I have a valid ticket and wish to go to independent appeal, but I don't want to lose that and end up paying £75 - for nothing! One thing I notice is that clearly visible on both sides of the ticket a serial number is printed. Surely NCP could check the veracity of the ticket using this. I clearly shouldn't have so readily admitted to being the driver, but at the time I wasn't to,know.

Grateful for any advice how to go about making an independent appeal in this case, and what my chances are.

Many thanks in anticipation

Redx

read the newbies sticky thread, all the info you need is in there , so if you have a popla code, draft a popla appeal in notepad

Coupon-mad

Your early appeal was fine in fact - indeed in the NEWBIEs thread, I suggest early appeals to NCP which is better than waiting for them to faff about later on pretending the keeper can't appeal. Saying you were the driver is a common mistake and not the end of the world - you will still win at POPLA so read post #3 of the NEWBIES thread and show us your draft POPLA appeal! In your case it can be written as the driver because they already know it's you, but that won't save them from losing to the usual winning points you will find in the link in the NEWBIES thread.

dw801

Thanks very much for your reply. My draft appeal letter to POPLA is as follows;

Dear POPLA Assessor,

I am the registered keeper of the vehicle above and I Appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

When I arrived and parked at the Shenfield Station NCP car park at approximately 1105 on 22 March 2014 I paid the full off-peak fee of £2.60 (valid until 0400 23 March 2014) and obtained a ticket (no 0785548). The ticket was of a simple paper not (i.e not adhesive and attachable to the windscreen) and I placed the ticket in clear view on top of the dashboard, taking care to ensure it was fully visible. I then retrieved some items from the boot and as I went to lock the vehicle I noticed the driver's door was not properly closed. I opened the driver's door slightly and gently closed it before locking the car remotely with the key. On my return to my vehicle later that day at around 1430, I noticed the penalty charge notice on my windscreen, and that the ticket, while still clearly visible on the dashboard, was upside down. It was a blustery day and Even though I had only slightly opened, and then gently closed the driver's door to ensure it was properly shut, this was clearly enough for the associated air pressure to blow the ticket upside down. I did not notice this when I left the vehicle, and the PCN Was issued on the grounds that my vehicle was parked in a permit bay without displaying a valid permit.

My initial appeal to NCP was rejected on the grounds that entitlement to park could not be established and the appeal rejection letter from NCP States that copies (or originals) of parking permits cannot be accepted as proof of entitlemt to park,at a later date. I would contest that I can prove I have purchased a valid permit (original/scanned copy attached) and therefore, that the £50 penalty issued (rising to £75 after 14 days) is not a genuine pre-estimate of loss. Furthermore, there is a serial number clearly marked on both sides of the parking permit, and this would have been visible to the parking attendant who issued the PCN. This reference number must serve some purpose, and thus could surely have been used by NCP to confirm the validity of the parking permit visible in my vehicle (albeit face down on the dash).

This concludes my appeal. I respectfully request that my appeal be upheld and the charge dismissed, on the grounds set out above.

Yours faithfully

Grateful for any comments and suggestions of other grounds that could apply in this case. This is my first go at one of these, hope I got,it right!

Thanks again

Nodding_Donkey

That will fail, sorry to be blunt but have you actually read the newbies thread?

Coupon-mad

You need 'no standing/landowner contract' for starters, it's a standard paragraph pretty much, as you will see in post #3 of the NEWBIES thread, in the examples in the hyperlink 'How to win at POPLA'. I see you have 'therefore, that the £50 penalty issued (rising to £75 after 14 days) is not a genuine pre-estimate of loss' (no GPEOL) which is important but I wouldn't rely on that alone without the 'no standing' paragraph asking for the landowner contract as proof of authority, etc. Also you need to elaborate on the 'no GPEOL' point!

Also we encourage 'non compliant signage' (regardless of what the signs are like!!) in any POPLA appeal to make the PPC jump through the hoops of supplying a site map and photos of the signs (which they can muck up). You get to see their evidence in due course so set them up for a fall and then pick them off when you see their evidence.

Delete ALL of this, winning at POPLA is not about 'what happened'. This sort of wording is merely mitigating circumstances, and it loses at POPLA so is pointless:


The ticket was of a simple paper not (i.e not adhesive and attachable to the windscreen) and I placed the ticket in clear view on top of the dashboard, taking care to ensure it was fully visible. I then retrieved some items from the boot and as I went to lock the vehicle I noticed the driver's door was not properly closed. I opened the driver's door slightly and gently closed it before locking the car remotely with the key. On my return to my vehicle later that day at around 1430, I noticed the penalty charge notice on my windscreen, and that the ticket, while still clearly visible on the dashboard, was upside down. It was a blustery day and Even though I had only slightly opened, and then gently closed the driver's door to ensure it was properly shut, this was clearly enough for the associated air pressure to blow the ticket upside down. I did not notice this when I left the vehicle, and the PCN Was issued on the grounds that my vehicle was parked in a permit bay without displaying a valid permit.

dw801

With many thanks for your comment on my earlier draft POPLA appeal, I have drawn on info on the forum to produce the following revised draft. I am not entirely sure about my para 2. The PCN and subsequent rejection letter from NCP make no reference to any photographic evidence (i.e. picture taken by parking attendant) and if they do subsequently produce this it won't help my case. Grateful for any pointers to things I could use and have missed, or could say better;


"Dear POPLA Assessor,
I am the registered keeper of the vehicle above and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;


1) No standing or authority to pursue charges nor form contracts with drivers. NCP do not own the land at the location mentioned in their PCN 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 POPLA, I assert that there are persuasive recent court decisions against NCP 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.


2) No visual evidence of the alleged contravention provided: Beyond the assertion of the NCP parking attendant, no evidence has been provided by NCP (i.e. a photograph of my vehicle showing an incorrectly displayed parking permit) has been offered by NCP to support the PCN they have issued. In this case the onus surely falls to NCP to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place, rather than me, as the registered keeper, to prove that the said breach did not take place.


3. No genuine pre-estimate of loss. I would contest the parking charge on the following points;


i. In their letter dated 9 April 2014 rejecting my initial appeal NCP state that they cannot accept copies (or originals) of permits provided at a later date as valid entitlement to park. I would contend that in refusing to do so, NCP are not taking the requisite steps to prove that a loss has occurred and therefore, sufficient basis for the issue of this parking charge.


ii. The parking permit has printed on both sides of the ticket, a 7 digit reference number. Even if the ticket were face down this would still be clearly visible and I contend, could have been used by NCP and their staff, to establish the veracity of the parking permit that I had purchased. That they have clearly not done so, I believe, is also further evidence that they have failed to make a genuine pre-estimate of loss.


iii. The correct charge for the period in question, which I paid in full, was the off-peak Saturday rate of £2.60, with the permit valid until 0400 the following Sunday. The parking contravention charge of £75 is out of all proportion to any potential loss on the part of NCP and therefore does not represent a genuine pre-estimate of loss. Furthermore, I would assert that the charge being claimed by NCP is a punitive sum. The following refers;


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.''


4. The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between NCP 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 NCP 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) NCP have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival.


I request that my appeal is upheld and for POPLA to inform NCP to cancel the PCN."


Thanks again





Yours faithfully,





THE REGISTERED KEEPER

Coupon-mad

I have tweaked it quite a bit and deleted irrelevant stuff about ParkingEye, should be good to go now:





Dear POPLA Assessor,
I am the registered keeper and driver of the vehicle above and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration;

1) No standing or authority to pursue charges nor form contracts with drivers. NCP 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 for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require NCP 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 any landholder). 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 otherwise there is no authority.

2) No visual evidence of the alleged contravention provided: Beyond the assertion of the NCP parking attendant, no evidence has been provided by NCP (i.e. a photograph of my vehicle showing the displayed parking permit) has been offered by NCP to support the PCN they have issued. In this case the onus surely falls to NCP to provide sufficient evidence to prove that the claimed breach of their terms and conditions took place. I contend the driver paid and displayed and no contravention occurred.

3) No genuine pre-estimate of loss.
I would contest the parking charge as not being a GPEOL on the following points:

I. NCP state that they cannot accept copies (or originals) of permits or pay & display tickets, provided at a later date, as valid entitlement to park. I would contend that in refusing to do so, NCP are not taking the requisite steps to prove that a loss has occurred.

ii. The parking permit has printed on both sides of the ticket, a reference number. Even if the ticket were face down this would still be clearly visible and I contend, could have been used by NCP and their staff, to establish the veracity of the parking permit. That they have clearly not done so, I believe, is also further evidence that they have failed to establish any loss occurred.

iii. The correct charge for the period in question was paid in full. The parking contravention charge is out of all proportion to any potential loss on the part of NCP and therefore does not represent a genuine pre-estimate of loss. There is no dispute that the driver did in fact pay the amount required.

iv. There is no loss flowing from this parking event. 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.

v. 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. As was found by District Judge Charles Harris QC in 'A Retailer v Ms B' (a case which turned on whether there was a loss to pursue from a consumer) no staff have been 'significantly diverted' from their duties. In this case, issuing a PCN and then handling appeals is a part of NCP salaried staff's normal day to day activity, so staffing costs/NI contributions cannot be properly included in a loss statement.

vi. Cases only go to POPLA in some 1% of cases, so the cost of a POPLA appeal is far too remote to include in a GPEOL statement set before parking events occur. The possibility of the POPLA route is rarer even than the debt collector route, so it cannot have been in the reasonable contemplation of NCP when setting the level of 'charge' that POPLA costs would flow from an average parking event. As a matter of policy, POPLA Assessors do not allow debt collection costs to be included in a GPEOL because most cases do not follow that route. The same applies to 'POPLA costs', as was found by Nadesh Karunairetnam in ref 4212674003 in November 2014:

'... the cost of bringing the case to POPLA is too remote - it would not be in the reasonable contemplation of the parties at the time the parking contract was formed between the motorist and the operator. Therefore, I must find that the operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss. '


4) Unreasonable/Unfair Terms
I would assert that the charge being claimed by NCP is a punitive sum. The following refers: 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.''

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 driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put NCP to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.


5) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed.
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply depending upon which way up the flimsy ticket ended up on the dashboard. 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, such as when the driver walks away and past a sign when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) NCP have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.


6) IF YOU HAD NOT ADMITTED YOU WERE DRIVING, HERE YOU COULD HAVE ADDED THE SLAM-DUNK WINNING APPEAL POINT THAT THERE IS NO KEEPER LIABILITY (EITHER BECAUSE NCP NEVER SERVED A 'NOTICE TO KEEPER' TO THE KEEPER IN THE POST, OR BECAUSE THE NTK IS FLAWED IN TERMS OF THE PRESCRIPTIVE WORDING REQUIRED UNDER PARAGRAPH 8 OF SCHEDULE 4 OF THE POFA 2012).

I request that my appeal is upheld and for POPLA to inform NCP to cancel the PCN.
Yours faithfully,


(YOUR NAME) seeing as you've told them you were driving.

dw801

Thanks very much for your help with this, it looks good to me. Will get it off to POPLA the next day or 2 and keep yo posted on the outcome.

dw801

My appeal was due to be considered by POPLA early next month, but they wrote to me yesterday to confirm that NCP have just cancelled the PCN, so success! Many thanks for all your help in fighting off NCP.

Stroma

Well done, they cancelled as they can't win against your appeal, so they threw in the towel lol