UKCPS - 11 digit POPLA reference?

ColliesCarer

UKCPS sometimes try to claim the charge is not for breach of contract but is a contractually agreed sum and if that applies in your case you would need special wording in your POPLA.

What is the wording used in the NtK for the alleged event and on the signs at the location?

speakerphone

On the Ntk it says:

"On the XXXX vehicle registration number XXXX was observed out of marked bay and the driver of a vehicle is required to pay a parking charge which was fixed to the vehicle in respect of the parking of the vehicle on land at XXXXXX and by so parking he/she agreed to pay the charge of £100 under the terms of a relevant contract displayed on the said land"

On the signs on-site it says:

"Contractual agreement; this land is strictly for the parking of motor vehicles that comply with the following conditions below...this contractual agreement is made with UKCPS, do not park here unless you agree to the contractual charges above".

What should I change?

nigelbb

Is that really all that is on the signs? The exact wording is very important as I see a reference to 'comply with the following conditions'. We need to know what the conditions are as if you didn't comply then it cannot be an agreed contractual charge as you cannot enter into a contract to do something that is forbidden.

speakerphone

Oops sorry, here is a picture of the sign:

imgur.com/HyCjALI

trubster

speakerphone wrote: »

Oops sorry, here is a picture of the sign:

imgur.com/HyCjALI

FTFY



Contractually agreeing to breach the conditions? Really?

Stroma

And that is the sign they are using? How is this a contractual agreement ?

nigelbb

Stroma wrote: »

And that is the sign they are using? How is this a contractual agreement ?

But they have written 'Contractual Agreement' on the sign so it must be true.

speakerphone

Yes that's the sign...is it not worded correctly? I've never read one before now so I didn't have anything to judge it against. I had to go back the next day to take the picture as it was night time and the signs were not lit at all.

Coupon-mad

It's not, of course, as we can all see. It's saying 'failure to comply' so it needs to be a GPEOL. Here's one I wrote for someone v UKCPS recently, you could use:



Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so if a tyre was indeed over a bay line (which is denied as I am the keeper and it is up to UKCPS to show as much) there was no loss of potential income in a free car park.

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) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKCPS to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

3) Lack of standing/authority from landowner
UKCPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKCPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKCPS 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 UKCPS are entitled to pursue these charges in their own right.

I require UKCPS 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.

4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt paymentand the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists.

5) 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.

An unlit sign of terms placed to high to read, is far from 'transparent'.

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 rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' 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.

ColliesCarer

The sign is contradictory - on the one hand they are saying it's a contractual agreement (which would mean the charge was fee/tariff) but they are also using wording that indicates it's actually for failing to comply which = breach of contract = damages = has to be a genuine pre estimate of loss.
e.g "This land is strictly for the parking of vehicles that comply with the following conditions...."
"If you park a vehicle on this land and are not fully complying with the conditions....."

Take a look at this thread for OP bigp26 posts #22 - #24 for an example of how this needs to be dealt with in the no GPEOL point and an explanation of the difference between damages for breach of contract and a contractually agreed sum.

https://forums.moneysavingexpert.com/discussion/4931310

Also take a look at this case UKCPS recently lost as it could be useful to refer to it in your POPLA

https://forums.moneysavingexpert.com/discussion/4949627

EDIT: Apologies for the xover C-m - your post wasn't showing on my browser b4 I sent this