UKPC Parking Charge - a little advice please!

AKTAB

I am a community care worker and received a parking charge on my windscreen last month from UKPC whilst parked in a housing association car park visiting a disabled client. I have used this housing association car park occasionally for the last three years with a car permit given to me by the client without any problems. I say occasionally because for ease of access I usually use the parking bays on the road outside but when they are full I use the car park. You are only allowed to park on the road for an hour at a time but the council traffic wardens turn a blind eye when I frequently go over my time as they understand the reason why I am parked there. As a care worker I am there for at least an hour five days a week. I have been reading from this wonderful site as much as possible to see how best to address this problem as I do not want to pay the £90 charge they are demanding. The NTK has arrived and now I am just about to send them the 'First Appeal to the PPC template letter' via the post office with proof of postage. I have not included a point 4 in the letter as to why I was parked there. Can someone please just confirm to me that at this stage I am following the correct procedure as advised by this site. Thank you.

da_rule

Sounds like you have it spot on. Do as you were planning to do.

And while your waiting for the anticipated rejection of your appeal you could read up a bit on POPLA.

AKTAB

Thanks for confirmation that I am following the suggested procedure. Although the easiest option would have been to pay it at the reduced cost of £50 I just felt the whole thing was very unfair nor did I feel that I had broken any parking laws! I'm off to the post office now. Thanks again.

da_rule

Unless you're printing the appeals on the finest paper available tipped with gold leaf using the worlds most expensive printer ink then you're going to be quids in by what is essentially sending 2 letters and spending an hour or two doing some reading.

AKTAB

I'm at the POPLA stage now and have drafted an appeal letter for comments please. Having read as much stuff as possible in the newbies thread I hope I have got the points across that I need to. What has thrown me slightly is UKPC going on about their charge being 'commercially justifiable' I have absolutely no idea what they mean but I did find a sample to use as a reply I just hope I have it all in the right context and it's not too long winded.


All comments gratefully received:-


Dear POPLA Assessor,

I am the registered keeper of xxxxxx and I wish to appeal the PCN xxxxxxxx on the following basis:

1. The Charge is not a genuine pre-estimate of loss.
2. Lack of clear, readable signage - no contract with driver.
3. Lack of standing/authority from landowner.

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

When I went in search of the signs for this appeal evidence they state that the charge is for 'failure to comply’ with the parking conditions i.e. breach of terms. The rejection notice I received cites their charges as being ‘commercially justifiable’. UKPC must therefore prove the charge to be a genuine pre-estimate of loss on a car parked for 15 minutes displaying a valid permit in a free residential car park that was not even a quarter full.
UKPC 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 for example 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. There is no genuine loss being pursued.
I do not accept that the charge is 'commercially justified'. In each case that I have seen from the higher courts, including those presented by the UKPC, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted).

2. Lack of clear, readable signage - no contract with driver.

UKPC state that their signs are sufficiently prominent to bring the terms and conditions of parking to the attention of drivers. In the area of the car park that was being used at the time there are two signs located in front of parking bays, on the day in question one was obstructed by a work van and the other covered by foliage. Looking skyward another sign is attached to the side of the building and if you are 10 feet tall may well be sufficiently prominent to be able to read the terms and conditions of parking. One must wonder that if a company wish to make their signs ‘sufficiently prominent’ for drivers why are they not displayed in the most obvious place of all such as the entrance to the car park and in this case on the huge notice board that is parallel with the path leading down to the houses - one could not fail to miss these.

There was no contract made with the driver and therefore no agreement to pay. No consideration or acceptance flowed to and from either parties so no contract was formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UKPC and not expecting to read a contract when they arrive to visit friends or relatives and in this case carry out care to a disabled resident. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not drawn to the driver’s 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.'

The signs are certainly not ‘sufficiently obvious’ unless you are 10 feet tall or prepared to clamber over parked vehicles or fight through foliage to find them. If you were to park there in darkness the signs are not even lit. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of a hefty 'charge'. Terms on a notice or a 100 notices dotted around a large car park are not imported into the contract unless brought home so prominently that the party must have known of the terms and agreed to them in their entirety.

3. Lack of standing/authority from landowner.

UKPC 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 code of practice paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC 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 showing that UKPC are entitled to pursue these charges in their own right in the courts.

I require UKPC 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 UKPC 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.


In this case the driver was issued with a valid car permit by the housing association resident who is disabled and requires regular daily care. The car permit was clearly displayed and is not a ‘non valid photocopied permit’ as implied by UKPC. The driver has since had this verified as correct by Ms Dympna O’Neill who is the housing officer for Thames Valley Housing.
I respectfully ask that the POPLA assessor consider my points and request that my appeal is upheld and the charge dismissed.

Yours faithfully

Coupon-mad

UKPC going on about their charge being 'commercially justifiable' - they have absolutely no idea what they mean

Just put that right for you! They are just jumping on a bandwagon and they don't even know where it's going!

That's a good appeal and will win. Any chance Dympna can email her confirmation that the permit is valid and you could attach her email as evidence too?

AKTAB

Thanks for your reply. I am pleased you said that 'they' don't know what they are talking about - 'commercial justification' just sounds like a long winded load of nonsense!


I couldn't get hold of the housing officer but have sent my appeal anyway. If I am able to speak to her tomorrow I will send what I can ASAP.


So after all my letters from UKPC, some of which threatened court proceedings, warrants and bailiffs I have not buckled but stood firm and so with all the help given on this brilliant website (did loads of reading on the newbies thread) I have submitted my POPLA appeal - fingers crossed that it is successful, I will let you know.


Thanks once again.

The_Deep

Have you approached the HA? They should tell the PPC to cancel it immediately and place your vehicle(s) on a "white list".

Also, what has your employer got to say, they should be on to the HA as well.