Help! What are the key points for a winning POPLA case?

mr_sunshine · 13 May 2014 at 6:50PM

Thanks ColliesCarer.

Here's a draft copy of my POPLA. Took most of the key points mentioned from previously post.

Let me know if this is alright? Will need to submit soon. Thank you all!

POPLA Reference Number:
Vehicle Reg:
PPC: AEJ Management
PCN Ref:
Date of PCN:

I as the registered keeper received an invoice from AEJ Management Ltd requiring payment of a charge of £90 (discounted to £50 if paid within 14 days) for parking in a pickup/drop off area at Gallions Reach Retail Park. The issue date on the invoice is 15/02/14.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Unclear, inadequate non-compliant signage
2. Charge not a genuine pre-estimate of loss
3. The amount of the charge is disproportionate
4. No authority to levy charges
5. No Creditor identified on the Notice to Appellant
6. Unlawful Penalty Charge
7. Summary

1. Unclear, inadequate non-compliant signage
There were inadequate signage and markings warning driver the bay parked was a “Pickup” or “Drop Off” areas. The markings on the bay are almost worn out (see picture A,B & C). When comparing the markings on the bay next to it (Disabled parking), a clear and vibrant yellow marking is seen from a far distance (see picture D).
Both “Disabled” and “Parent & Child” parking area contains a large signage and clear bay markings (see picture E & F). Pickup/Drop off area fails to set the same standards.

I contend that the signs and any core parking terms AEJ Management Ltd are relying upon were too small for any driver to see, read or understand. 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 and frequency) 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]

2. Charge not a genuine pre-estimate of loss
The demand for a payment of £90 (discounted to £50 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive 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 require AEJ Management Ltd. 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 (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

3. The amount of the charge is disproportionate
The amount of the charge is disproportionate to the loss incurred (off which there is none as this is a free car park) by AEJ Management Ltd. and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because being a free car park it is impossible to pay for any overstay. There can have been no loss arising from this incident. Neither can AEJ Management Ltd. lawfully include their operational day-to-day running costs in any “loss” claimed. I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking, as the parking meter rate in the corresponding area is £2.00 per hour. I would question that if a charge can be discounted by £30 by early payment that it is unreasonable to begin with.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract. AEJ Management Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles AEJ Management Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the AEJ Management Ltd. to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the AEJ Management Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the AEJ Management Ltd. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between AEJ Management Ltd. and the owner/occupier, containing nothing that AEJ Management Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

5. 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 AEJ Management Ltd., there is no specific identification of the Creditor who may, in law, be AEJ Management Ltd. 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, 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.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

7. 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.

AEJ Management has also failed to comply with the BPA code of Practice where they did not issue a POPLA code at the point to appeal rejection. Rejection received on email on 3rd April 2014. No official letter received until 5th May 2014.

Yours faithfully