Urgent help needed: Parkdirect UK appeal rejected

Newjoiner82

Dear team,

I have followed the site and forum from a long time in the past but just recently joined it. I must say what a great job all of you forum members are doing and its only that reason that I get the confidence that i can fight against these unjust companies.

I had a PCN from ParkdirectUK which I had appealed against after reading the posts on this forum as well as other websites.

It was a very unfair claim as the junction is extremely confusing and the driver had to turn into this road, where the alleged breach of contract happened because it was only bus access ahead. The driver was new to area and got confused so waited for a few minutes and asked around people how to reach the chimes shopping area. In that time the photos were captured and they are now claiming that the car stopped where no stopping was in place. In any case the signage in that area was extremely poor and not well lit and it is another of those cases of covert operations.

See google street view of this junction (its the small street on right)

maps.google.co.uk/maps?ll=51.544391,-0.475271&spn=0.18,0.3&cbll=51.544391,-0.475271&layer=c&panoid=nwE7ftaC_hu3L-SFQ54Bdw&cbp=,334.03,,2,12.389999&output=classic&dg=ntvo


I had as a result send through a strong response in the line of the response which was suggested on pepipoo.

forums.pepipoo.com/index.php?act=attach&type=post&id=24503

I had send them a second class post sent out on 18 Feb14 and they responded and sent a rejection dated 26 March (although the stamp franked on the letter was later only). I had asked them to acknowledge my letter in 14 days and final response in 35 days which they seem to have breached as I only received their letter late. Is there any law which they breached via not responding to timelines i suggested? I didn't get any acknowledgement of my letter in any case.

Meanwhile, as I was away on holidays and have just been able to read thier letter , which I attach here. Unfortunately by checking on the POPLA link for validity of appeal code, it is only valid till tomorrow (Wednesday 23rd April is the last day).

Hence I have tried to write the appeal quickly gathering the best and valid points all the various appeals i saw. Please see below by POPLA appeal.

I would appreciate an early response/feedback from you all as i am scared of the debt collection process and would rather pay than get all those threatening letters

Apologies for the rush and looking forward to your feedbacks.

[FONT=&quot]POPLA Reference Number:
Vehicle Reg:
PPC: Parkdirect UK
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN: 04/02/2014

I am the registered keeper of the vehicle and wish to appeal against the Operator, ParkDirect UK. My points of appeal are summarised as below, and the details of each point are contained within this appeal.[/FONT][FONT=&quot]

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. Agency agreement - no Locus Standi
3. BPA Code Of Practice breach - no 'creditor' identified – no ‘keeper liability’
4. Unclear/restricted/unlit signage
5. Unlawful Penalty Charge [/FONT]
[FONT=&quot]6. Unfair terms - Unenforceable Disguised Penalty
7. Lack of Grace Period and covert ticketing operation not BPA CoP compliant[/FONT]
[FONT=&quot]8. [ANPR Accuracy - is it applicable as well??] 7. Business Rates[/FONT][FONT=&quot]
9. Business Rates
10. Summary
[/FONT][FONT=&quot]
1. Charge not a genuine pre-estimate of loss[/FONT][FONT=&quot]
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount (off which there is none as it was a no waiting/stopping area), and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and is not a genuine pre-estimate of loss and therefore an unenforceable penalty.
The BPA code of practice states: 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.[/FONT]
[FONT=&quot]The legal document (the postal PCN which serves as the Notice to Keeper) refers to 'contravention'. In addition, in their rejection letter ParkDirect UK have described the event as a 'breach of contract'. This is really about breach of contract, so loss must be shown. As such, it is not a contractually agreed fee to stop/wait in no stopping/waiting area and so they have failed to exempt their charge from the basic contract law and BPA Code of Practice requirement that a charge for contravention or breach must wholly comprise a genuine pre-estimate of loss. This is a road and as such, a car stopping causes no obstruction, no breach of signed terms at that spot and certainly no loss to the landowner, retailers or this Operator. If ParkDirect UK had intended to create a 'no stopping/waiting zone' then as was explained by the Lead Adjudicator in the POPLA Annual Report 2013, the area must be clearly signed as a no-stopping zone (e.g. double red lines or large yellow hatching or yellow box and adjacent clear and lit signage stating 'no stopping/loading'). [/FONT][FONT=&quot]

Therefore, this Operator cannot demonstrate any initial quantifiable loss caused by the car being stationary in that section of the road in order that the driver could clear the confusion and turn around on the road, which took mere minutes.

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. The Operator has stated that if there were no breaches, their 'costs' would not exist but in looking at their list of heads on the rejection letter, the opposite is true. They have listed normal operational costs and tax-deductible back office functions and no initial loss has been shown from which any other costs could possibly flow as a direct consequence of this parking event. The Operator would in fact 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.

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


2. Agency agreement - no Locus Standi

This is a mere site agreement at best, a bare licence limited to 'issuing tickets'. There is no assignment of rights for ParkDirect UK to pursue PCNs in the courts in their own name or to form contracts. A non-landowner private parking company must have a contract with the landowner - not an agreement with a managing agent - and it must comply with paragraph 7 of the BPA Code of Practice or there is no authority.

A site agreement or redacted contract will not suffice. I put ParkDirect UK to strict proof of their specific BPA compliant contract wording. If the client is a managing agent, I put this Operator to strict proof that the actual landholder authorised the managing agent to grant this parking operator, at this site, the standing to sue and to make contracts in their own name. N.B.: I am not merely challenging the 'issuing of PCNs' because, of course, anyone could put a piece of paper on a car windscreen. This is a question of a lack of standing, title or specific authority from the landowner.

Further, I believe that ParkDirect UK should ensure that all evidence on which it seeks to rely is forwarded to me, otherwise it cannot be considered at the POPLA appeal stage, and clearly they have denied me that right in their rejection letter dated xxx by refusing to provide me with a copy of the legal agreement between themselves and the landowner.

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

3. BPA Code Of Practice breach - no 'creditor' identified – no ‘keeper liability’[/FONT]
[FONT=&quot]The Notice I have received makes it clear that ParkDirect UK is relying on Schedule 4 of the Protection of Freedoms Act 2012. As such, there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged 'charge'. ParkDirect UK has failed to comply in the wording of their Notice to Keeper since they have failed to identify the “Creditor”. This may, in law, be ‘ParkDirect UK’ or ‘ParkDirect UK Ltd' (both legal names are on the NTK) or indeed their client or some other party. The Act requires a Notice to Keeper to have words to the effect that “The Creditor is….” .[/FONT]
[FONT=&quot]The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not indicate that the “creditor must be named, but “identified”. The driver is entitled to know the identity of the party with whom he has allegedly contracted and in failing to specifically identify the “Creditor”, ParkDirect UK has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.[/FONT]
[FONT=&quot]It was an 'immediate' PCN, with no Grace Period, which breaches the BPA Code of Practice. No 'period of parking' on an NTK breaches POFA and it fails to repeat ‘facts’ from the PCN - even the sum to pay is hidden in small print and it omits required wording from paragraph 8(2)(c) of Schedule 4 of POFA 2012 which states that “The notice must…inform the keeper… that the parking charges have not been paid in full” . There is no 'keeper liability' from a fundamentally flawed NTK.[/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT][FONT=&quot]

4. Unclear/restricted/unlit signage
The sign at the entrance to the road (where the breach is alleged to have been committed) is positioned on the passenger side of a standard right-hand drive vehicle and does not say anything more than “No stopping or waiting”. This makes the sign difficult for a driver to see from inside the car, once approaching the road. In fact, there are multiple signs on the road, just before the entrance to this road, which are council erected regarding “Entry to vine street restricted, prohibited vehicles turn here”. The car drivers have no option but to turn into this road to take a U turn and identify an alternate route to the Shopping centre which is next door. It is also difficult to view this sign without impeding the flow of traffic and pedestrians behind. I enclose photograph that demonstrate the entrance signage. The BPA Code of Practice at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead” and “There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background”. Beyond that the parking boards are unlit and extremely difficult to read in the night.
I therefore respectfully request that my appeal is upheld and the charge dismissed

[/FONT]
[FONT=&quot]
5. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a no stopping or waiting, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of 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 could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.[/FONT][FONT=&quot]
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. Unfair terms - Unenforceable Disguised Penalty
The sign, the Notice to Keeper and the rejection letter are unclear, ambiguous and contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back which makes it a very cluttered and unclear Notice. Further, the NTK states a discounted payment amount of £60, whereas the rejection letter doesn’t provide a discounted period even though the letter rejecting their claim was sent by me within the 14 day period. is confusing and contradictory. 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 applies.

This is not a transparent contract and is a disguised penalty so it is not recoverable in law:

The Office of Fair Trading guidelines re the UTCCRs 1999:
Group 18(a): unfair financial burdens
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.

[/FONT]
[FONT=&quot]7. Lack of Grace Period and covert ticketing operation not BPA CoP compliant[/FONT]
[FONT=&quot]The unknown person taking the pictures didn't apply a windscreen PCN so the driver had no idea of any contract nor any alleged breach. No employee was seen wearing any kind of uniform or ID showing they are involved with 'parking enforcement', please could I see evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, the lack of grace period and the secret pictures taken leads me to believe this was not a trained operative. Nor were they using a liveried vehicle, I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA CoP as this is not a reasonable, consistent nor transparent operation.[/FONT]
[FONT=&quot]For your reference, when I visited the site post the PCN, I observed a person covertly taking pictures in the area (please see pictures attached which seems to be there approach to catch unsuspecting people who are confused at that junction). [/FONT]
[FONT=&quot]8. [ANPR Accuracy - is it applicable as well??][/FONT][FONT=&quot]
Parkdirect UK are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Parkdirect UK to present records as to the dates and times of when the cameras were checked, calibrated and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on three images purporting to show my vehicle as being in the road at specific times – it’s vital that Parkdirect UK produce evidence in response to these points.

9. Business Rates
As this road is now being used for the purpose of running a business for Parkdirect UK, which is entirely separate from any other business and generates revenue and profit for Parkdirect UK, I do not believe that Parkdirect UK has declared the running of their business venture at this location to the Local Valuation Office and Local Authority for the purpose of the payment of Business Rates.
I put Parkdirect UK to strict proof that they have so registered the business they are operating at this road with the Valuation Office and to provide proof that Business Rates are being paid to the Local Authority, or to provide proof or explanation of their exemption from such Business Rates.[/FONT][FONT=&quot]

10. Summary
On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

[/FONT]
[FONT=&quot]I respectfully request that my appeal be upheld and the PCN cancelled.[/FONT][FONT=&quot]

[/FONT]
[FONT=&quot]
Yours faithfully[/FONT]
[FONT=&quot]Signed[/FONT][FONT=&quot]: [/FONT]
[FONT=&quot]Dated:[/FONT]

Hot_Bring

I've skim read your appeal and it looks fine. I'd remove point 9 - whether the PPC pays the correct rates / tax is irrelevant.

Given the tight timescale you are working to I would make the change I've mentioned and get it uploaded to POPLA.

Stroma

Send it via popla systems , don't post it as you will be late

Redx

yes these tickets are usually unfair

no they are not normally breaking any "laws" as private parking is largely unregulated

the trick here is not to try to get too clever , just follow the help given

ie:- "dont get mad , get even" and cost them money at popla

as mentioned above , post it on the popla appeals website by logging in , putting the top part of your appeal in the box (the part down to below the bullet points) , below that put , see attachment for ful appeal , then attach your full appeal as an attachment and submit it

ensure you have the popla ref number and personal details and reg number in both the online box and in the appeal attachment before submission (I know they are removed on here due to privacy)

you will get an email acknowledgement

that way you wont miss the deadline for receiving your appeal

Coupon-mad

Watch out with Park Direct - their signage pretends the sum is a contractual 'fee' to allow such parking. It is not, but the sign needs checking if you can do so today.

You could instead use a version like this specific one, as long as the points about the sign in paras 1, 2 and 6 are relevant to YOUR car park signs:

https://forums.moneysavingexpert.com/discussion/comment/65278839#Comment_65278839

Also double check that it is all true for your case, such as the sentence near the end of the link I have given you: 'The Operator has stated that if there were no breaches, their 'costs' would not exist but in looking at their list of heads on the rejection letter, the opposite is true. They have listed normal operational costs and tax-deductible back office functions' (is that also the case for your rejection letter, probably but you need to be sure the best template is wholly relevant).

If you try to appeal online and get an error code, DO NOT GIVE UP, do not post it as it will be too late! Try a different browser and/or double check you are not trying to 'upload evidence' when in fact you need to 'submit an appeal'. Many posters get their knickers in a twist over this issue.

HTH

14wrence

That looks like the exact same place I was fined by Park Direct. They must make a fortune from unwitting drivers, who confused, enter what looks like a road to turn around in due to the high street coming to an end.

Please take a look at my simoialr story. https://forums.moneysavingexpert.com/discussion/4914297

So far I haven't heard from ParkDirect.

Newjoiner82

Thank you Hot Bring, Stroma, RedX, Coupon-mad, 14wrence for your comments and inputs so far. It is fantastic to have such a great group of people who are ready to help out anyone in need and so quickly.

I will revise my appeal and repost it to the group shortly.

14wrence, it is good to know that my car was not the only exception in this case and they seem to be doing it blatantly at that junction where drivers get confused and turn into that road.

I had a few other quick questions to the group:
1. Should I send across the pictures where I noticed this attendent taking pictures on the sly of unsuspecting customers? (point 7)
2. I will take out the business rates point as suggested
3. Coupon-mad, the notice in the road is actually same as the one which was seen by PoolieFritz in his car park. I attach the link below again for ease of use. I didn't notice the issue of contractual fee, do you see it in this case? The only difference to the PoolieFritz case is that this was actually just a road with "no stopping and waiting" restriction. Even with that, our rejection letter and GPEOL para in response etc is almost same.
Signage:
i1294.photobucket.com/albums/b611/PoolieFritz/PCN/ParkDirectsignatexit_zpsb5b7e5ff.jpg
Rejection letter which was posted by PoolieFritz. (I am facing trouble uploading mine, will try to do it soon)
[FONT=&quot]i1294.photobucket.com/albums/b611/PoolieFritz/PCN/PCNpage1of2_zpsf445a173.jpg[/FONT]
[FONT=&quot]i1294.photobucket.com/albums/b611/PoolieFritz/PCN/2014-04-04pg2of3_redacted_zps092047bc.jpg[/FONT]

4. I will also leverage 14rwence's letter as both our cases happened on the same road.

Thanks again for the help and look forward to inputs while i revise my appeal.

The end plan is as the forum members pointed out to upload it online today with 1 day to spare (ie. tomorrow)

Thanks and regards

Newjoiner82

Please see attached my revised appeal which I plan to submit later tonight once I have signoff from the forum. I have incorporated the comments suggested by forum and leverage the examples highlighted and taken the relevant points where needed. Can you kindly let me know if I should remove some details at some points?

Many thanks for the help again.

POPLA Reference Number:
Vehicle Reg:
PPC: Parkdirect UK
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:

I am the registered keeper of the vehicle and wish to appeal against the Operator, ParkDirect UK.
My points of appeal are summarised as below, and the details of each point are contained within this appeal.

1. Signs clearly not visible at entrance to road (r/o 233 High Street) – no contract with driver
2. Poor signage inside the road – No Contract Formed with Driver
3. Lack of Grace Period and covert ticketing operation not BPA Code of Practice compliant
4. BPA Code Of Practice breach - no 'creditor' identified – no ‘keeper liability’
5. BPA Code of Practice breach - Complaints, challenges and appeals General principles were not followed
6. Agency agreement - no Locus Standi
7. Unfair terms - Unenforceable Disguised Penalty
8. Charge not a genuine pre-estimate of loss




1. Signs clearly not visible at entrance to road (r/o 233 High Street) – no contract with driver
Parkdirect UK has said to be in their rejection of appeal that the PCN is based on breach of contract. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. It is not enough to have some signs. Drivers entering the road (r/o 233 High Street) are given no clue to there being controlled parking in place due to the lack of appropriate signs at the entrance of the road. The prominent signs in the vicinity are an advertising hoarding and a local council erected sign “Entry to vine street restricted, prohibited vehicles turn here”. There is also a low positioned yellow sign on the passenger side (of a standard right-hand drive vehicle while turning on the road) saying “No stopping or waiting”. This sign is quite difficult for a driver to see from inside the car, once approaching the road. There is no sign whatsoever stating that the road is managed by Parkdirect UK and there are terms and conditions to be aware of.
This is a clear breach of section B, paragraph 18.2 of the British Parking Association’s Code:
“Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of…”

2. Poor signage inside the road – No Contract Formed with Driver
Signs within the site are located at difficult to see locations and are unlit and small in print. On inspection of the signage evidence provided by Parkdirect UK (information on two signs was marked on photographs) the following information was gathered:
1. FIRST SIGN: The sign laying out the terms and conditions is actually located on the back of the advertising sign at the entrance of the road. A driver going in the road will never be able to find it as
a. There is no view from the angle of the driver’s seat as it in reverse direction to the normal motion of the car
b. It was dark at that point of the night and the road as well as the signs were poorly lit (as can be observed also in the pictures provided by Parkdirect UK)
2. SECOND SIGN: The other sign highlighted by Parkdirect UK seems to be a “no stopping or waiting sign” which again is extremely difficult to find because:
a. It was unlit
b. It was low in height and located on the passenger side of the vehicle
c. It was partly covered by foliage and unclear

As a result, there was no contract formed with the driver and if ParkDirect UK had wanted to communicate the area to be a no-stopping zone then they were required to sign it accordingly, with clearway signage, yellow hashings or red lines, and repeater 'no stopping zone' signs facing the driver. Additionally it is entirely unclear as to the boundaries of the site supposedly being controlled by the signs.
Because they hid their sign behind entrance advertising hoarding in a dark corner, this Operator has failed to communicate the terms of parking. Due to the small font and position on the hoarding, it is nearly impossible for any driver to view it. And the yellow sign (if seen, which it was not because it is not prominent) could not have created a contract as there is no offer, consideration nor acceptance that can flow to/from an Operator using such wording.

I contend that the signs that Parkdirect UK is relying upon were too small for any driver to see, read or understand. This is unless any driver were to stop, get of, find and read the signage which would atleast take any reasonable person 5-10 minutes of time, which is much smaller than the alleged contravention duration. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])


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


3. Lack of Grace Period and covert ticketing operation not BPA Code of Practice compliant
The unknown person taking the pictures didn't apply a windscreen PCN so the driver had no idea of any contract nor any alleged breach. No employee was seen wearing any kind of ID showing they are involved with 'parking enforcement', please could I see evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, the lack of grace period and the secret pictures taken leads me to believe this was not a trained operative. Nor were they using a liveried vehicle, I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA code of practice as this is not a reasonable, consistent nor transparent operation.
For your reference, when I visited the site post the PCN, I observed a person covertly taking pictures in the area (please see pictures attached, which show a person covertly trying to take pictures and seems to be the approach followed by Parkdirect UK to catch unsuspecting people who are confused at that junction and turn into this road).

4. BPA Code Of Practice breach - no 'creditor' identified – no ‘keeper liability’
The Notice I have received makes it clear that ParkDirect UK is relying on Schedule 4 of the Protection of Freedoms Act 2012. As such, there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged 'charge'. ParkDirect UK has failed to comply in the wording of their Notice to Keeper since they have failed to identify the “Creditor”. This may, in law, be ‘ParkDirect UK’ or ‘ParkDirect UK Ltd' (both legal names are on the NTK) or indeed their client or some other party. The Act requires a Notice to Keeper to have words to the effect that “The Creditor is….” .
The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not indicate that the “creditor must be named, but “identified”. The driver is entitled to know the identity of the party with whom he has allegedly contracted and in failing to specifically identify the “Creditor”, ParkDirect UK has failed to provide any evidence that it, or a third party, is entitled to enforce an alleged breach of contractual terms and conditions.
It was an 'immediate' PCN, with no Grace Period, which breaches the BPA Code of Practice. No 'period of parking' on an NTK breaches POFA and it fails to repeat ‘facts’ from the PCN - even the sum to pay is hidden in small print and it omits required wording from paragraph 8(2)(c) of Schedule 4 of POFA 2012 which states that “The notice must…inform the keeper… that the parking charges have not been paid in full” . There is no 'keeper liability' from a fundamentally flawed NTK.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. BPA Code of Practice breach - Complaints, challenges and appeals General principles were not followed
I had posted out my challenge to Parkdirect UK on XXX and I didn’t receive any response from them until a letter stamped XXX arrived at my registered address. This is even though I had specifically requested them to acknowledge my challenge within 14 days of receiving my letter dated XXX (attached)
This is a clear breach of section B, paragraph 22.8 of the British Parking Association’s Code:
“You must acknowledge or reply to the challenge within 14 days of receiving it”
6. Agency agreement - no Locus Standi

This is a mere site agreement at best, a bare licence limited to 'issuing tickets'. There is no assignment of rights for ParkDirect UK to pursue PCNs in the courts in their own name or to form contracts. A non-landowner private parking company must have a contract with the landowner - not an agreement with a managing agent - and it must comply with paragraph 7 of the BPA Code of Practice or there is no authority.

A site agreement or redacted contract will not suffice. I put ParkDirect UK to strict proof of their specific BPA compliant contract wording. If the client is a managing agent, I put this Operator to strict proof that the actual landholder authorised the managing agent to grant this parking operator, at this site, the standing to sue and to make contracts in their own name. N.B.: I am not merely challenging the 'issuing of PCNs' because, of course, anyone could put a piece of paper on a car windscreen. This is a question of a lack of standing, title or specific authority from the landowner.

Further, I believe that ParkDirect UK should ensure that all evidence on which it seeks to rely is forwarded to me, otherwise it cannot be considered at the POPLA appeal stage, and clearly they have denied me that right in their rejection letter dated xxx by refusing to provide me with a copy of the legal agreement between themselves and the landowner.

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


7. Unfair terms - Unenforceable Disguised Penalty
The sign, the Notice to Keeper and the rejection letter are unclear, ambiguous and contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back which makes it a very cluttered and unclear Notice. Further, the NTK had stated a discounted payment amount of £60, whereas the rejection letter doesn’t give the option to pay a discounted amount although in the language in the payment options, it says “If you opt for independent arbitration of your case, you will lose the opportunity to pay a lower payment amount of £100” which again is confusing and contradictory.
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 applies.

This is not a transparent contract and is a disguised penalty so it is not recoverable in law:

The Office of Fair Trading guidelines re the UTCCRs 1999:
Group 18(a): unfair financial burdens
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. A term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.


8. Charge not a genuine pre-estimate of loss
The legal document (the postal PCN which serves as the Notice to Keeper) refers to 'contravention'. In addition, in their rejection letter ParkDirect UK have described the event as a 'breach of contract'. This is really about breach of contract, so loss must be shown. This is a road and as such, a car stopping causes no obstruction, no breach of signed terms at that spot and certainly no loss to the landowner, retailers or this Operator. If ParkDirect UK had intended to create a 'no stopping/waiting zone' then as was explained by the Lead Adjudicator in the POPLA Annual Report 2013, the area must be clearly signed as a no-stopping zone (e.g. double red lines or large yellow hatching or yellow box and adjacent clear and lit signage stating 'no stopping/loading').

Therefore, this Operator cannot demonstrate any initial quantifiable loss caused by the car being stationary in that section of the road for a few minutes, in order that the driver to clear the confusion, turn around on the road and find an alternate route.

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. The Operator has stated that if there were no breaches, their 'costs' would not exist but in looking at their list of heads on the rejection letter, the opposite is true. They have listed normal operational costs and tax-deductible back office functions and no initial loss has been shown from which any other costs could possibly flow as a direct consequence of this parking event. The Operator would in fact 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.


The demand for a payment of £100 is thus punitive, unreasonable, exceeds an appropriate amount (off which there is none as it was a no waiting/stopping area), and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and is not a genuine pre-estimate of loss and therefore an unenforceable penalty.


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.

I respectfully request that my appeal be upheld and the PCN cancelled.

Yours faithfully
Signed:
Dated:

Hot_Bring

You've changed the order ! GPEOL should be point 1 - just to help the adjudicator.

Newjoiner82

Thanks Hot Bring, I will make the changes. Is the rest of the appeal fine? And should I also move point 7 as the second point?

And if you had any insights on my other questions, which I asked earlier in the day that would be great.

Thanks again.
Regards

Coupon-mad

The sign at that car park is a bog standard 'breach of contract' allegation (it says stopping is not authorised so it can't be an agreed contractual sum to park). Makes your POPLA appeal easier to do that most other PD cases I have seen, and no GPEOL should win the day. I would make it point #1.