F1rst Parking LLP - Hertfordshire University

Coupon-mad

Draft your POPLA appeal wording based on the examples you will find in post #3 of the NEWBIES thread and run it by us first. We/you need it to be strong as 8 tickets depend upon it and the PPC can show an 'initial loss' so it needs to be worded well.

MyStupidSon

Thank you so much for all your help with this. Here is our amended POPLA appeal. We have changed it to include the fact that the maximum they could have charged is £3 and therefore that is the extent of the loss they are entitled to claim.

Is that OK and is there anything else we should change?

Should we include any of the photos in the appeal?


"POPLA CODE «POPLA_Code»

As the registered keeper of the vehicle, registration number xxxxxxx at the time of the incident, I wish to appeal against the parking charge issued by F1rst Parking LLP.

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Unclear and non-compliant signage, forming no contract with drivers.


To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
The parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require F1rst Parking LLP to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’.F1rst Parking LLP cannot lawfully include their operational day to day running costs (e.g. provision of signs and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner charges a maximum of £3 for the area in question, this is the maximum loss they would be entitled to claim.The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge,as it cannot be used to state a loss where none exists.''


2. Contract with landowner - no locus standi
F1rst Parking LLP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous,signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between F1rst Parking LLP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517ParkingEye v Clarke 19th December 2013 (Transcript linked): (link)

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners.We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So Iam satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. F1rst Parking LLP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

3. Unclear and non-compliant signage, forming no contract withdrivers.
Due to their position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that F1rst Parking LLP are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must 'have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed."

Thank you again for all your help.

ColliesCarer

I would suggest you add the following at the end of your No Gpeol point.


In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.

Also 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”.
My case is the same and I respectfully request my case is upheld and the charge is dismissed.

MyStupidSon

Thank you all for the advice. We have added the suggested wording to the "no gpeol" paragraph. Do you think this is OK to send now?


"POPLA CODE «POPLA_Code»


As the registered keeper of the vehicle, registration number xxxxxx at the time of the incident, I wish to appeal against the parking charge issued by F1rst Parking LLP.

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Unclear and non-compliant signage, forming no contract with drivers.

To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
The parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require F1rst Parking LLP to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’.F1rst Parking LLP cannot lawfully include their operational day to day running costs (e.g. provision of signs and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner charges a maximum of £3 for the area in question, this is the maximum loss they would be entitled to claim. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge as it cannot be used to state a loss where none exists.''
In ParkingEye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
Also 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”. My case is the same and I respectfully request my case is upheld and the charge is dismissed.

2. Contract with landowner - no locus standi
F1rst Parking LLP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between F1rst Parking LLP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): (link).

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. F1rst Parking LLP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

3. Unclear and non-compliant signage, forming no contract with drivers.
Due to their position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that F1rst Parking LLP are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed."


Many thanks.

Coupon-mad

Yep that looks good, make sure you submit it 8 times - electronically to POPLA so it costs you nowt. They must be mad to spend 8 POPLA fees on this!

Stroma

Almost £220 down the swanny , lovely stuff

MyStupidSon

Thanks all, we'll try and get them off this evening.

Should we chase F1rst Parking for the one we are still waiting for a POPLA code for (we sent the appeal letter but heard nothing on that one)?

Also, do we need to do anything about the ones that are with Roxburghe?

Coupon-mad

Yes I would chase about the one you appealed about.

I would do nothing about the debt collector ones; keep their letters but generally in 99% of cases, this is no big deal. Once the POPLA decisions are made I would send a letter to F1rst Parking to state that you consider ALL the PCNs declared - in their opinion - unrecoverable (due to no GPEOL no doubt!). Then over the weeks, just ignore further contact except court papers or a Letter before Claim (would need a response). But this is rare and would put you in good stead if you've already re-stated the POPLA decision at them and reminded them it's binding on them to cancel the 'POPLA ones' and the others are - after all - exactly the same.

MyStupidSon

The POPLA form asks why you are appealing. Are we right in thinking that we just tick all apart from that the vehicle was stolen?

Umkomaas

MyStupidSon wrote: »

The POPLA form asks why you are appealing. Are we right in thinking that we just tick all apart from that the vehicle was stolen?

Correct. Forum advice is to tick any or all, other than stolen (unless appropriate). No one has yet come to 'harm' in doing this.