POPLA appeal - ATHENA/LIDL - Advice please

Umkomaas

If I hadn't read your

I wanted to add that I was considering becoming a regular shopper and that my first visit to the store had turned into a distressing situation

I'd have assumed from your draft letter that you were an existing and loyal customer. And I'm sure that's the way Lidl will read it.

I'm pretty sure they will be much keener to help an 'existing and loyal' customer than one who 'might' become one. I'd leave it as it is.

ColliesCarer

I agree with Umkomaas that you should leave the bit about considering becoming a regular customer out.

Personally I would also alter the opening sentence to be something like ...

"I am writing to make an official complaint to you because I consider the actions of your agent are unlawful and it is my understanding that Lidl are jointly and severally liable for those actions......."

Regarding the POPLA appeal - would suggest you include the statement they made in their rejection letter about "fail to comply" perhaps by altering the 1st paragraph of point 1/ to something like ....

"Athena ANPR Ltd have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum, which I dispute. In their letter to me rejecting my appeal they state "There are sufficient number of signs in the car park, which clearly state that if you fail to comply with the terms you will be liable to pay a parking charge". The words "fail to comply" would indicate the charge is in fact a sum sought as damages for an alleged breach of contract.

In my original appeal to Athena ANPR Ltd I requested that they clarify the basis of the charge........ "

minimii123

ColliesCarer wrote: »

I agree with Umkomaas that you should leave the bit about considering becoming a regular customer out.

Personally I would also alter the opening sentence to be something like ...

"I am writing to make an official complaint to you because I consider the actions of your agent are unlawful and it is my understanding that Lidl are jointly and severally liable for those actions......."

Regarding the POPLA appeal - would suggest you include the statement they made in their rejection letter about "fail to comply" perhaps by altering the 1st paragraph of point 1/ to something like ....

"Athena ANPR Ltd have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum, which I dispute. In their letter to me rejecting my appeal they state "There are sufficient number of signs in the car park, which clearly state that if you fail to comply with the terms you will be liable to pay a parking charge". The words "fail to comply" would indicate the charge is in fact a sum sought as damages for an alleged breach of contract.

In my original appeal to Athena ANPR Ltd I requested that they clarify the basis of the charge........ "

Thank you for your replies for which I am very grateful.
I have made the changes to the letter to the store, and included your suggestions in my POPLA appeal which I have added below.


POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:

On xx of xxx 2014 I was sent an invoice from Athena ANPR as keeper of the above vehicle requiring payment of a charge of £90 for an alleged parking contravention.
I would like to appeal this notice on the following grounds:


1 ) - Charge not a genuine pre-estimate of loss
2 ) - No Creditor identified on the Notice to Appellant
3 ) - No authority to levy charges
4 ) - Lack of contract
5 ) – Cameras


1) This charge is not a contractually agreed sum. It is a disguised breach and is not a genuine pre estimate of loss.

Athena ANPR Ltd have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum which I dispute. In their letter to me rejecting my appeal they state "There are sufficient number of signs in the car park, which clearly state that if you fail to comply with the terms you will be liable to pay a parking charge". The words "fail to comply" would indicate the charge is in fact a sum sought as damages for an alleged breach of contract.

In my original appeal to Athena ANPR Ltd I requested that they clarify the basis of the charge. If alleging 'contractual fee' I requested they send me a VAT invoice by return and explain the daily rate of parking, however, in their rejection letter Athena ANPR Ltd failed to address this point and failed to provide the information or VAT invoice requested. Nor have they provided a calculation to show this is a genuine pre estimate of loss if alleging breach of contract.

a) This charge is not a contractually agreed sum – it is a disguised breach

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.

This is a free (for 90 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 90 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!

The same sum is also sought for returning to the car park within 2 hours, something clearly disallowed by the wording “No return within 2 hours … “, which is immediately followed by “or charge of £90 will apply” - in other words “don’t do this or else” which shows the charges are actually for failing to comply, which equals a deterrent for breach.

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' at XXXXX is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there 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”.

It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.

I require Athena ANPR Ltd to provide a VAT invoice, details of the daily rates of parking and proof that this chargeable regime at this location is registered for business rates.

b) Charge not a genuine pre-estimate of loss

If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach.

The car park is free and there was no damage or obstruction caused (nor is any being alleged). I submit that on a free car park there can be no loss arising from any alleged overstay.

The demand for £90 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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.
The appellant requires Athena ANPR to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.

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



2 ) No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Athena ANPR, there is no specific identification of the Creditor who may, in law, be Athena ANPR or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.

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

3) No Legal Standing or Authority to Pursue Charges or Form Contracts with Drivers

Athena ANPR Ltd are not the landowner and do not have title or assigned interest in this land which means that 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 landowner and I have seen no evidence that they are lawfully entitled to demand money from a driver or keeper.

Athena ANPR Ltd is a member of the British Parking Association, and the BPA Code of Practice states, in Section 7.1, that the operator must have written authority from the landowner to recover parking charges, including pursuing through court action in their own name.

I therefore put Athena ANPR Ltd to strict proof that they have the necessary authorisation at the location in question i.e. a relevant contemporaneous contract with the landowner (not an individual lessee or managing agent as they are another third party) to pursue these charges in the courts in their own name as creditor. In the event that witness statements are submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance.

Even if a basic contract is produced and mentions Parking Charge Notices, I submit that such a contract is a commercial matter between the Operator and the owner/occupier and the lack of ownership or assignment of title or interest in the land reduces any such contract to one that exists simply on an agency basis between Athena ANPR Ltd and the owner/occupier. Such a contract would contain nothing that Athena ANPR Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer as it doesn’t create any contractual relationship between Athena ANPR Ltd and motorists who used the land. A parking operator has no standing to bring the claim in their own name.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4 ) No contract
There was no contract between the driver and Athena ANPR. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. And even if there was a contract, which has yet to be proven, then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5 ) Cameras
Athena ANPR are obliged to make sure their equipment is in working order and comply with the requirements of the BPA Code of Practice part 21. The appellant required them to present evidence on whether the cameras were checked and maintained recently in relation to the date of the alleged incident, to ensure the accuracy of any Athena ANPR images. They have failed to do so, although this is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
I also challenge The Operator to show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and demand that they demonstrate adherence.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully ,

Umkomaas

From a presentational point of view your headings for each appeal point should be the same as your bullet point list. It just doesn't look right the way it currently is with slight variation between the two.

In terms of content, it looks good to me.

minimii123

Umkomaas wrote: »

From a presentational point of view your headings for each appeal point should be the same as your bullet point list. It just doesn't look right the way it currently is with slight variation between the two.

In terms of content, it looks good to me.

Thanks, I thought I should put paragraph 1(b) before paragraph 1 (a) and change the wording on the summary points at the beginning of the appeal to read:
1 )a) - Charge is not a genuine pre-estimate of loss
b) - charge is not a contractually agreed sum
2 ) - No Creditor identified on the Notice to Appellant
3 ) - No authority to levy charges
4 ) - Lack of contract
5 ) – Cameras

Would this read better?

Coupon-mad

Yep that will be fine - it looks like another winner!

minimii123

I just wanted to update you on my progress with my appeal. I emailed a letter of complaint and a copy of a redacted bank statement showing my Lidl transaction to the MD of Lidl and also sent a POPLA appeal in online. Today I returned home from work and guess what was in the post.... a PARKING CHARGE CANCELLATION NOTICE!!. :j
Thank you so much for all the help and advice received from the forum, I wouldn't have had the confidence to do it without you. I'm so glad I followed the advice of "not to follow like a sheep and pay, but to get angry and fight!"

Coupon-mad

Well done - Lidl sorted it out...but it begs the question why do they allow it and how many idiots* just pay?


* I say 'idiots' but this week I found out an intelligent colleague and her Mum both recently paid fake PCNs re Supermarket visits. Yet here I am in the same building as her and she didn't know the whole thing is a fake parking ticket racket. Yes...I nearly screamed but then put her right for the future and to tell friends - and she's already intercepted one which her friend was talking about over dinner just days after she heard from me what these are all about!

minimii123

To be fair, if you have never received a parking ticket before you don't have anything to compare it to.
I have spread the word among family and friends as well and a few people have said to me that they had received parking charge notices in the past but just paid up because it was the easiest thing to do.

Redx

actually , the easiest thing to do is pass it to http://www.parkingticketappeals.org.uk/ and pay £16

the next easiest thing to do is fight it by appealing and learning the process like you , me , coupon-mad and hundreds of others have done and this is by far the cheapest method of getting a cancellation

the more difficult thing to do is to ignore it at the start and then get overwhelmed once the appeal deadlines have passed

sometimes it can be easy or difficult to get a landowner or retailer to cancel a ticket, but as you have seen it can be done

the stupidest thing to do is pay up because that encourages them to bully and lie to more people to pay for their exotic holidays and flash cars which is all based on no real contracts in place for the most part

you can see that with the lady that turned up in court today and got a no show from PE so the case was dismissed, probably because they ticketed her on a public road !