UKCPS - 11 digit POPLA reference?

speakerphone

Thanks to all for taking the time to answer. That judgement makes interesting reading(!)

Coupon-mad - I have had another bash mostly using your example - hope it is ok to borrow so much? I just tweaked a few bits so it applied to my case. Also I didn't really understand point 5 so just left it as is.

Do you think this will be a good appeal to send in now?

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Dear POPLA,

I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:[FONT=&quot]

[/FONT]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.

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.

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

The alleged breach took place at night time and any signs were not adequately lit to be seen clearly while driving (and indeed were not seen by the driver).

Also, due to their high position, overall small size and the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand.

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.[FONT=&quot]
[/FONT][FONT=&quot]
[/FONT]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''.[FONT=&quot]
[/FONT]
3) Lack of standing/authority from landowner
[FONT=&quot]
[/FONT]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.[FONT=&quot]

[/FONT]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. [FONT=&quot]
[/FONT]
4) Non compliant Notice to Keeper - no keeper liability established under POFA 2012[FONT=&quot]

[/FONT]
The Notice to Keeper fails to state the period of parking, only the time of the issue of the alleged notice, and also fails to inform the keeper of the arrangements for the resolution of disputes or complaints that are available.

In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4:[FONT=&quot]

[/FONT]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. [FONT=&quot]
[/FONT](g)inform the keeper of any discount offered for prompt paymentand the arrangements for the resolution of disputes or complaints that are available'
[FONT=&quot]
[/FONT]The NTK is a nullity so no keeper liability exists. [FONT=&quot]

[/FONT]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. [FONT=&quot]
[/FONT]
An unlit sign of terms placed to high to read, is far from 'transparent'.[FONT=&quot]

[/FONT]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.


6) Failed to comply with initial request for a popla code

I contacted UKCPS following the Notice to Keeper and clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently. UKCPS ignored this requirement. They therefore failed to comply with the BPA Code of Practice.

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

Coupon-mad

Yep that will win, and it's fine to copy from any other POPLA appeal example on here. I would add to this last bit as shown:

I contacted UKCPS following the Notice to Keeper and clearly stated that I denied all liability to their company and required a POPLA verification code for me to appeal independently. UKCPS ignored this requirement. They therefore failed to comply with the BPA Code of Practice. They then issued me with an 11 digit POPLA code which clearly would not work, so I had to complain to the BPA to sort that out before I could appeal to you. I consider this sharp practice and I find that UKCPS are known to routinely issue incorrect POPLA codes:
http://parking-prankster.blogspot.co.uk/2013/12/ukcps-try-new-scam-handing-out-fake.html

Seeing as POPLA has been running for nearly two years and in complete contrast to UKCPS, this is my first experience of the system, it is an insult that an AOS member can try to evade POPLA in this way. I do hope once you have found in my favour you will report this issue and the lie about keepers only being able to appeal if the car is stolen, because this behaviour breaches the CPUTR 2008 and jeopardises people's chances to appeal.

nigelbb

ColliesCarer wrote: »

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....."

They always shoot themselves in the foot with this mish-mash. As I frequently point out you cannot enter into a contract to do something that is forbidden.

Most PPCs pervert contract law by alleging that the motorist entered into a contract for parking & that when that contract was breached damages become due. It's a load of nonsense of course (especially in a free car park) but it's an even bigger load of nonsense to claim that someone would contractually agree to pay £100 for the privilege of parking outside a marked bay or similar 'service'.

speakerphone

Thank you so much! So glad to have found the forum, I would never have managed this on my own. I've submitted the appeal to the POPLA website so fingers crossed. Cheers!

JamersPad

How did you get on?

speakerphone

Hi, just heard the other day that the appeal was allowed so thanks to all here! Here is part of the decision they sent:

The Operator recorded that the vehicle was parked outside of a marked parking bay which is not authorised.

The Appellant has made various representations; I have not dealt with them all as I am allowing this appeal on the following ground.

It is the Appellant’s case that the amount of the parking charge notice does not represent a genuine pre – estimate of loss caused by her breach. The Operator has responded by stating that the charge is a genuine pre-estimate of loss. The Operator has provided a table showing the losses they have incurred as a result of the Appellant’s breach. I find that the table does reflect losses incurred in relation to the appeal process. I note that the Operator states their initial loss to be the cost of the warden and associated vehicle costs.

Whilst I appreciate that in some cases e.g. where the car park is a pay and display one, the issuing of the parking charge notice may be held to be an initial loss, however, in this circumstance the car park is free and therefore I find that there is no initial loss caused here. The Operator has not shown that by parking outside of a marked bay, the Appellant at that point caused a loss to themselves or the landowner. The Operator has only shown that they incurred the loss as a result of the appeals process after issuing the parking charge notice. In order for a charge to be a genuine pre-estimate of loss, the Operator has to show that they at first have incurred an initial loss by the Appellants’ breach directly.

Considering carefully, all the evidence before me, I find that as the Operator has not shown that they have incurred an initial loss as a result of the Appellant’s breach, the charge sought is not a genuine pre-estimate of loss.

Accordingly, this appeal must be allowed.

Yay!

Dee140157

Well done on winning appeal. Please can you post this on the POPLA successful appeals thread and name the assessor too please.

Umkomaas

In order for a charge to be a genuine pre-estimate of loss, the Operator has to show that they at first have incurred an initial loss by the Appellants’ breach directly.

Doesn't this mean that any PCN issued for a free car park has absolutely no standing whatsoever?

Well, that gets rid of over 50% of PPCs

speakerphone

All done. It was weird because they had sent me an incorrect POPLA appeal number, which i queried with the BPA and said that I would be making a complaint after I had dealt with the appeal. Then the BPA sent me this a few weeks later:

We have investigated your complaint regarding the incorrect verification code being issued to you for you to appeal to POPLA. The operator has confirmed that there was a programming error which explained why an incorrect Code was sent out. The error has been corrected and the operator has assured me your parking charge notice has been cancelled due to the mistake made.

In view of the above, I have closed the investigation.

So I wasn't expecting to hear anything else, but then I got the POPLA appeal decision. Anyway just glad its finished!

Stroma

Now make a complaint to the bpa about the fact that this was unjustified and not a pre estimate of loss by the operator, which is against the ba code of practice. I would send a complaint to the dvla stating that as this company is breach of the CoP they are breaching their kadoe agreement with them