Help with PCN for Wing Parking

hoohoo

Complain to the BPA. Aos@britishparking.co.uk

If they reject an appeal they must supply a popla code

HO87

Let's not forget that Wing work exclusively for London Boroughs and their arm's length housing companies. Their appeals mechanisms are multi-layered and often include as many as two levels of appeal - beyond those to Wing themselves - with the Borough/Housing company before you get a POPLA code. This has been queried on many occasions with the the BPA (included by me direct to Steve Clark) and they claim this is perfectly acceptable and in fairness (as if that ever forms part of Wing's operation) these extra levels of appeal are often required by their clients.

Wing do not immediately divulge how their appeals systems work (it varies from borough to borough) and the motorist has to ask at every stage who they have to appeal to next. I believe this is contrary to the CoP and certainly contrary to the spirit of it.

Regardless of this I would be tempted to write to Wing and demand that they provide a POPLA code in line with the CoP within 14 days or put up or shut up. Or is that one cunningly hidden at the bottom of their letter?

Agooner

Thanks Coupon-mad, I've emailed Wing asking for confirmation that the original email was sent to me. I didn't give them a timeframe in which to provide this, but I did say that if they refused to, I would be taking my appeal to the BPA.

@ HO87 Thanks for the info re Wing's procedures. The POPLA code they provided me is the one hidden at the end of their last email. I checked the code on the BPA website and it had expired 56 days ago! Had I received their email/letter I would have actioned it then.

Thanks all

Coupon-mad

We would say complain now to the BPA. No point hanging about.

Agooner

I misunderstood your previous reply @coupon-mad. I've complained to the BPA.

Thanks.

Agooner

Hi all,

Here is a copy of my appeal to the BPA. I would really appreciate your thoughts on it; if there are any points I should include/omit.

Thanks

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:

1) The Charge is not a genuine pre-estimate of loss

The car park is provided “free” to all residents. 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.

Wing Parking when rejecting my appeal stated that the cost had been used "because damages is specifically defined in The Protection of Freedoms Act 2012 as relating to the amount of the parking charge stated on "one or more notices" (i.e. the car park signage)...Furthermore, since the Act permits parking charges to be rendered on private land, and the case of Parking Eye Limited v Somerfield Stores Limited [2012] EWCA Civ 1338 (Court of Appeal) held that the parking company was entitled to claim the sum of £75 in 2005 for a parking charge, (and the case specifically says that such a charge was not a "penalty") - which with inflation is close to £95 - and would therefore not be a "penalty", reference to the Unfair Contract Terms Act is not of any relevance in the context of this parking charge."

The operator did not outline how the amount being claimed was a genuine pre-estimate loss to the company or the landowner. Instead they stated that the sum being claimed has legal precedent from a case in 2005. Although the parking company in the case of Parking Eye Limited v Somerfield Stores Limited 2012 may have suffered a loss to the sum of £75, the case is irrelevant to my appeal and the onus is still with Wing Parking to illustrate how the amount being claimed is a genuine pre-estimate of loss to the company.

The charge that was imposed 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. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £120 can be reduced to £60 by early payment the charge is unreasonable to begin with.

2) Lack of signage - no contract with driver

The Wing Parking appeal refusal states that the claim in question is based in contract law.

As the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. This car park is entered via a busy road and no signs are visible until you are inside the car park. Due to 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. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of Wing Parking and not expecting to read a contract when they park. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

3) Lack of standing/authority from landowner

Wing Parking do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Wing Parking have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question. Therefore Wing Parking have 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 Wing Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Wing Parking 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 Wing Parking are entitled to pursue these charges in their own right.

I require Wing Parking 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.

Also, Wing Parking's client, Catalyst Housing Group, is not the landowner and does not have the standing to offer contracts nor to bring a claim for trespass. The area where the driver parked is privately owned, with the homeowner having purchased the property from, Catalyst Housing Group. Therefore, Wing Parking does not hold the necessary legal interest in the property.

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. 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.

A small print sign which cannot be read until you leave your vehicle and then then states that you cannot turn, 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 signs with such small print and impossible conditions 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.

5) Untimely response to the resquest for a POPLA code

The operator insisted on a two stage appeal process, which I complied with. The notice to owner letter received on 02/05/2014 was appealed on 03/05/2014. This appeal was rejected on 20/05/2015 and a stage 2 appeal, compliant with Wing Parking's procedures was made on 22/05/2014. I receieved a confirmation email for the appeal, but a response was not received until 18/09/2014. The operator stated that they have no record of my appeal and invited me to pay the PCN. on 19/09/2014, I emailed asking for a reply to my email of 22/05/2014 and a response to my stage 2 appeal in which I asked for a POPLA code.

The operator replied via email on 26/09/2014 with a copy of the response they claimed to have emailed to me 04/07/2014. In the email, it was also stated that confirmation that the email was sent was attached.

I did not receieve the email that the operator claims to have sent on 04/07/2014 and the confirmation that they claimed to have attached was not attached.

Wing Parking made me go through a 2 stage appeal process but never sent a POPLA code at all and the email they claim to have forwarded was never sent and has not been proved as sent. It appears to be a figment of Wing Parking's imagination or was stuck at their end as a draft email and never sent.

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

Yours Sincerely

Coupon-mad

I am confused - that's not an email complaint to the BPA. You just need to send them the letters you have received and a couple of sentences of complaint based on your point #5 above ONLY (NOT appeal!). You can't start a complaint email to the BPA 'Dear POPLA'.

HO87

Have Wing forwarded the original email as is or does it appear that they have cut and pasted a section of text?

If they claim it is the original email then you should be able to look at the header detail. Does this show dates/times that are consistent with their claim?

Agooner

@ Coupon-mad sorry for the confusion. I've sent the email to the BPA, just on point 5. The letter I copied is a draft of my appeal in POPLA in case the response from Wing Parking/BPA is not favourable.

@ HO87 I am waiting for a response from Wing Parking with the original email with a header as to when it was sent.

Thanks all

Agooner

Hi all,

A quick update:I've received a reply from the BPA in response to my email disputing Wing parking's claim that the POPLA code was sent in a timely manner.

Wing parking provided the BPA with a dubious copy of confirmation that the email was sent on 04/07/2014.

Office
From: Appeals
Sent: 04/07/2014 10:37
To:
Subject: RE: Appeal for PCN no
Attachments:

Please find attached our reply to your recent appeal.

Regards


Mark

I have triple checked all folders, spam and otherwise and I am certain that the email was not received when it was claimed to have been sent. However, the BPA stated:

As the operator has responded to your appeal, there has been no breach of our Code of Practice. As we are not a regulatory body we cannot become involved with why the response may not have been received and we cannot force the operator to issue the rejection letter again.

The 28 days expiry for the POPLA code has lapsed. Should I appeal to POPLA stating that I did not receive the code from the operator in time/when it was sent? Hopefully they will still be able to take on my case. Wing stated in their last email that they would not enter into further correspondence with me.

What would be my next best steps?

Thanks