Another Park Direct UK victim

Hii Guys
First of all a big thanks to all of you guys for helping people fight against private parking companies fraud.

I have also been victim of Park Direct UK. As I was not aware of this forum so I submitted an appeal to Park Direct UK Ltd based on mitigating circumstances and guess what I lost.

I now want to take it to POPLA. I have checked the code and its ok. I have about 10 days to submit appeal to POPLA.

Just a brief back ground:
There is a no through road (dead end) in front of apartment blocks. Its opening is on main road. On the opposite side there is a small shopping block. We normally used to pick items .
On that day we entered the dead end road and immediately identified that some kind of parking restrictions had came to force.

The person driving stopped in front of sign and I went out and saw the board. There was 'No Stop and wait' restriction in place. We decided to turn back. The driver backed off and I went to collect the goods.

Our total presence was less then a minute.

And still we got the ticket. The four pictures they have send us are for a duration of 50 seconds. They are asking to pay £100 for 50 seconds,
Also I have noticed that the notice is not giving any period of parking and only giving time of contravention. Also the time on pictures is 3 minutes different from time of alleged contravention.

I have compiled my appeal to POPLA as follows, kindly review it before submission:
Dear POPLA,
I am the registered keeper & this is my appeal:

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

The place of incident is not a designated car park, it is simply a dead end space in front of an apartment block. There is no parking income generated from this area. Also we never stopped there, as soon as we saw the sign we turned back. The pictures send by Park Direct UK Ltd, shows our presence for less than 50 seconds.
There is no loss flowing from this incident as there was no loss of potential parking income as a result of this event.

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 sign is not readable from raod, in order to understand it, the driver has to approach it. I put Park Direct UK to strict proof otherwise; as well as a site map they must show legibility from road. There is no entrance sign, no lighting on site and the sign is not prominent & not reflective. 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
Park Direct UK 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 Park Direct UK to strict proof of the contract terms with the actual landowner (not a lessee or agent). Park Direct UK 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 space 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 Park Direct UK are entitled to pursue these charges in their own right.

I require Park Direct UK 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 space. 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) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the pictures provided show time of presence different from the time of issue of alleged PCN. The time of PCN is XXXpm where as pictures of our presence are from XXX to XXX pm (less then 50 seconds)

5) Sufficient Grace Period Not allowed:

POFPA ACT 2012 specifies that:
13 grace periods
13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.
13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.

The copies of the photos they provided are enclosed. This shows car presence for only 50 seconds. In the last few seconds the car is shown exiting the place. We are entitled sufficient grace period to exit the space as per the POFPA ACT. Park Direct UK Ltd has not allowed us this grace period. Thus this PCN is invalid.

6) 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.


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 profit by charging a disproportionate sum where no loss has been caused by a car in a free space where no parking income is normally generated. 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.
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Replies

  • edited 30 May 2014 at 8:45PM
    da_ruleda_rule Forumite
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    edited 30 May 2014 at 8:45PM
    Your point 5 - It is the Code of Practice for the BPA which sets out grace periods.

    What do you mean by the POFPA Act 2012? Do you meant the Protection of Freedoms Act? In which case the abbreviation of POFA 2012.
  • edited 30 May 2014 at 8:51PM
    Dee140157Dee140157 Forumite
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    edited 30 May 2014 at 8:51PM
    To be clear, point 5 is taken direct from the BPA code of practice. POFPA Act 2012 is an incorrect term.
    This point is worth putting in, but you are less likely to win on this than on other points which are legal points. Which seems crazy because this seems the most obvious point to win on given the circumstances.

    I have to say a valiant effort given that your first appeal was on circumstances and you have taken everything you have read and since used it to create a detailed POPLA appeal.
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • Coupon-madCoupon-mad
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    That's a good effort which should win but you may wish to add more about the NTK not being compliant and therefore there is no keeper liability (but that's ONLY relevant if your first appeal didn't give away who was driving, otherwise criticism of the NTK is less relevant).

    Here's a post from yesterday where I advised another person about their POPLA appeal to ParkDirect UK over a 'total presence under one minute' as well:

    http://forums.moneysavingexpert.com/showthread.php?p=65655461&highlight=#post65655461

    HTH - feel free to plagiarise anything you want to add to your own appeal.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • EmaanEmaan Forumite
    5 Posts
    Thanks guys for your advice.
    I have corrected the reference to BPA code of practice. POFA was indeed wrong reference.
    Coupon mad : Unfortunately I did give away drivers identity :( however I have expanded on NTK a little bit more ( seems no harm).
    Also I have changed point 2 also.
    4) Non compliant Notice to Keeper - no keeper liability established under POFA ACT 2012

    On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the pictures provided show time of presence different from the time of issue of alleged PCN. The time of PCN is XXXpm where as pictures of our presence are from XXX to XXX pm (less then 50 seconds).
    This is due to the fact that INDEED THERE WAS NO PARKING, WAITING OR STOPPING!
    There is no 'keeper liability' from a fundamentally flawed NTK and POFA 2012 only applies to parking events. This was not a parking event at all, it was an example of ParkDirect's well documented (in the national press) sharp practice in taking photos of any vehicle which drives through/turns around near their operative with her mobile phone camera, then sending out speculative demands.

    2) No contract with Driver - no parking event occurred

    This was late afternoon and the driver left within a minute and had no intention to park. There was no intention to park, stop or wait and no agreement to pay £100. Terms are only imported into a contract if they are clear & so prominent that the party 'must' have known of it & agreed. This charge is spurious and the signage wording which I have subsequently checked is unclear & dresses up an obvious deterrent (really a penalty) as a 'contractual' fee. It is not; see point 1.
  • Coupon-madCoupon-mad
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    That's looking good and as you say there is no harm in criticising the NTK!

    As for the no GPEOL paragraph #1 I would suggest changing the title & start of that point to match the one in the linked example I gave before (IF your NTK letter says 'breach of contract' on it anywhere! - which is for you to check) so that it starts:


    ' 1. The NTK states the charge is for 'breach' so must prove it is a GPEOL.
    This is really about breach of contract, so loss must be shown or the charge is unenforceable. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation. '


    The reason I wrote that one in those words was because a cursory glance at the signage by the Assessor at POPLA might have led them to believe it's a 'contractual fee to be allowed to park', in the case in question. Obviously we haven't seen the sign in your case but ParkDirect signs sometimes don't mention 'breach' or 'failure to comply' or 'contravention'. So you need to point out to POPLA where the operator gives the game away that it's really a matter of breach so there must be a GPEOL.


    and there was a typo & grammatical error here which I have adjusted & added to the sentence:


    2) Lack of signage - no contract with driver
    The sign is not readable from the road. In order to understand it, the driver has to approach it on foot after parking the car and this is too late because the contract terms must be made clear prior to the parking of the car.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
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  • The_DeepThe_Deep Forumite
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    As this appears to be an attempt to obtain money by misrepresentation this should be brought to the attention of Trading Standards.

    Also, if the PPC is not offering parking, either free or paid, is this not a straightforward claim for trespass
    You never know how far you can go until you go too far.
  • Guys_DadGuys_Dad Forumite
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    I would make the Grace point your first and put into the appeal the slightly changed wording from your first post.

    "On that day the driver entered the dead end road and immediately identified that some kind of parking restrictions had came to force.

    They stopped in front of sign and the passenger went out to read the board. There was 'No Stop and wait' restriction in place. They decided to turn back and park elsewhere to allow the passenger.to collect goods from the shops.

    Their total presence was less then a minute.
    "

    Your current appeal will win, but the facts are that the PPC has not followed the BPA code and the driver is entitled to read any notices before deciding whether or not to park. That is the main point and I think you should make it clear that this is what happened.

    Maybe an adjudicator might just allow the appeal on that point rather than the GPEOL if it was the prominent plank of your appeal.
  • EmaanEmaan Forumite
    5 Posts
    Thanks Coupon mad.

    I have checked NTK and they are not saying any thing about breach, they are just mentioning

    'We believe that a parking charge is payable with respect to above vehicle for the following alleged contravention: stopping or waiting where stopping and waiting restrictions are in force at a location which had the terms of parking clearly displayed on the warning signs'

    Do you think these word imply breach? what do you recommend?

    Guys Dad, thanks I shall make the amendments in the appeal.
  • edited 3 June 2014 at 10:11PM
    Coupon-madCoupon-mad
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    edited 3 June 2014 at 10:11PM
    I thought on the top right their NTK letters (in the box) they used to say 'breach of contract' so maybe they've changed them since...but not well enough! The word 'contravention' = breach so yes, it doesn't just imply it and you can state that:


    1. The NTK states the charge is a 'contravention' of 'restrictions' so the Operator must prove it is a GPEOL.
    The legal document (the Notice to Keeper) states that this is an allegation of a 'contravention' of 'restrictions'. So despite an attempt to word their signs to (arguably) suggest a contractual fee, in fact this is not the business model pursued in the NTK. This is not in fact a contractual fee to 'pay for the privilege' of parking in contravention of restrictions - clearly an operator cannot offer a driver a contract to be allowed to do something which is, in fact, disallowed. So this is is really about breach of contract so the charge must be based upon a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top of this/any page where it says:
    Forum Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • EmaanEmaan Forumite
    5 Posts
    Thanks a lot Coupon mad
    I have now incorporated your wordings into my appeal and am going to submit it shortly.

    I shall keep you you guys posted.

    I have just learned that BBC program 'Watch Dog' is doing a program on private parking companies, next Wednesday. I feel we should all submit our stories to them
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