JAS PCN at a Staples parking in Essex

robanvar

Thank you for the good advices available in this forum. This is my first post in a forum, so please excuse me if I am not doing it the right way.

My question:When making POPLA appeal, do I need to provide photographic evidence for unclear signage?

I have a copy of email appeal I sent to the PPC and the response received back from them. Do I need to provide evidences to support my appeal? I am planning to use the text provided in the following post - forums.moneysavingexpert.com/showthread.php?p=65370663#post65370663

And I am planning to use following appeal points (all from above post except point 4, as I did not receive NTK)
1) The Charge is not a genuine pre-estimate of loss
2) Lack of signage - no contract with driver
3) Lack of standing/authority from landowner
5) Unreasonable/Unfair Terms

Background Information-
I received a PCN in a windscreen sticker issued by J.A.S Parking Solutions. My car was parked in a Staples parking in Essex. PCN states 'Breach of term and condition' and reasons for PCN are breach of conditions (1) Unauthorised parking and (6) Did not use car park providers premise and went elsewhere.

I did not receive NTK from JAS, but I appealed to JAS using the text provided in the sticky note of this forum and they rejected the appeal as in all other cases discussed here. They provided a POPLA code and I checked its validity (it is showing as valid).

ezerscrooge

Photographic evidence would be useful - just insert the image in your appeal letter at the appropriate place.

My feeling is that it will win on the No GPEOL as they all do for 'breach of terms' but it is always useful to have more valid points in your letter.

You've done the right thing by refering to the threads and putting your case together. The C-M text is a great, just make sure the wording fully reflects your case.

Do post your draft appeal on here for feedback before you send it.

robanvar

Thank you ezerscrooge, I will draft the appeal letter today evening and will post it here.

Coupon-mad

Yes the one you've found is fairly typical winning POPLA words:

https://forums.moneysavingexpert.com/discussion/comment/65370663#Comment_65370663

But you could also search the parking forum for 'JAS Staples POPLA' and you should find other JAS threads with a ready made POPLA appeal or two. We've had loads of other JAS/Staples threads and many have already won at POPLA. Use the 'search this forum' heading above the sticky threads on page one of this forum, next to 'forum tools' and put in 'JAS Staples POPLA'.

robanvar

Thank you Coupon-Mad, I have used some text from the below post related to JAS.
forums.moneysavingexpert.com/showpost.php?p=64400600&postcount=53

Here is a draft version for my POPLA appeal. I should be grateful if you could tell me if any additional details should be added.


APPEAL RE: PCN JAS***** from J.A.S. Parking Solutions Ltd issued on **/**/2014
CAR PARK: Staples, *********************, Essex
VEHICLE REG: **** ***

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

1) The Charge is not a genuine pre-estimate of loss
The parking charge notice states the charge is for 'breach of terms and conditions' so J.A.S. must prove the charge to be a genuine pre-estimate of loss. There was no parking charge levied in above car park, the car park is “free”. There is no loss flowing from this parking event because the car park was not even 25% full, 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) UNCLEAR AND NON-COMPLIANT SIGNAGE - no contract with driver
Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand. The signs and any core parking terms JAS are relying upon were too small for any driver to see, read or understand. I have uploaded a photograph as evidence for small print signage board used in above Car Park

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.

3) Lack of standing/authority from landowner
J.A.S 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 J.A.S to strict proof of the contract terms with the actual landowner (not a lessee or agent). J.A.S. 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 license to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that J.A.S is entitled to pursue these charges in their own right.

I require J.A.S 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) 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.

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 fulfill 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 high positioned small print 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, 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.

robanvar

I will submit my POPLA appeal with above text today evening. Will update the outcome later.

robanvar

This is a photo of a signage in the car park. //imageshack.com/a/img834/9162/jsgty.jpg
(could not upload image/link)

Can some one advise whether I should upload this image as evidence for small print signage?

Umkomaas

robanvar wrote: »

This is a photo of a signage in the car park. //imageshack.com/a/img834/9162/jsgty.jpg
(could not upload image/link)

Can some one advise whether I should upload this image as evidence for small print signage?

Clicky Link:

http://imagizer.imageshack.us/a/img834/9162/jsgty.jpg

Definitely include it and cross reference it in your 'Signage' appeal point to POPLA. You'd need a microscope to read that!

Coupon-mad

Terrible sign!

robanvar

I am happy to inform that I received POPLA decision today and my appeal was allowed. Thank you for all your help.
..............

Decision from POPLA:

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

The operator issued parking charge notice number JAS##### arising out of the presence at Staples/ Carphone Warehouse, on ## April 2014, of a vehicle with registration mark #######.the operator recorded that the driver did not use the car park providers premises at all. 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 does not represent a genuine pre-estimate of loss.

The operator has responded by stating that the amount of the parking charge notice complies with what the BPA deems reasonable. The operator submits that the sum has been calculated after consultation with various bodies. The operator has submitted a list of losses which they incur, amongst other things, the operator has included expenses such as the parking management companies costs e.g. rent, telephone, heating and stationary fees. I find that this does not represent a genuine pre-estimate of loss. In order for the amount of the parking charge to be a genuine pre-estimate of loss, the operator must show that the loss was incurred directly as a result of the appellant’s breach. The operator must also give an estimate figure for the losses incurred which is specific to the breach in order for the Assessor to determine whether the amount of the parking charge does in fact represent a genuine pre-estimate of loss.

Considering carefully, all the evidence before me, I find that as the appellant’s case is that the amount of the parking charge does not represent a genuine pre-estimate of loss, the burden shifts to the operator to prove otherwise. I find that the operator has not discharged this burden.

Accordingly, this appeal must be allowed.

xx xx

Assessor

Dee140157

Well done. Good old no GPEOL. Please post this success on the POPLA appeals thread, along with the name of your assessor as it helps keep track of the wins.