Care Parking Lapse in Formal Demand Letter

lozzabeth

Yep I think that too, as they aren't instructed by the Coliseum anymore and I gather it wasn't an amicable separation.

I'll take a look at the POPLA templates and start putting one together - do I have a deadline for submitting this?

Oh btw I emigrate to Oz in 3-weeks :-D I just don't like to leave behind any unfinished business and / or the possibility of returning to CCJs because of these crooks. I've put a post redirect in place to the folks so I'll be able to monitor the progress.....

Redx

28 days from the popla code date (check it using the checker in the newbies thread) for your appeal to be actually with popla, so lets assume 3 weeks to be on the safe side

you can appeal online and attach your appeal, plus giving them your email address (or a valid temporary email address if you wish , like a free gmail address just for this one purpose)

the popla decision will be about 5 to 8 weeks after submission , which you will receive by email as a pdf (or should do)

so put it together, check your expiry date and ensure its in beforehand , then emigrate and check for your emailed popla decision in 2 months or so , should be a slam dunk on not a gpeol or no contract or poor signage etc

post your draft appeal on here for checking before submission on the popla website , using a suitable browser like google chrome or opera or firefox etc

lozzabeth

Fab will do thanks Redx much appreciated

lozzabeth

I just checked and I have until 5th Aug (day I fly out!).

I looked at the templates for Care Parking and they appear to cover the following points:-

I am the registered keeper of xxxxxx and I wish to appeal the decision reached by Care Parking on PCN xxxxxxxx

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
4. ANPR accuracy
5. Unreasonable/Unfair Terms


However points 2 and 4 aren't really applicable as although I didn't see the signs they say there is a reflection of one in the photographic evidence provided. There was an actual operative taking pictures of my car too (and of me as I argued with the weasel!) so point 4 doesn't count. Should I just proceed with points 1, 3 & 5 do you think?

Dee140157

Always keep signage in. You can bet your bottom dollar they will be non compliant in some way! It's about Height, size of font, readability etc.
One PPC's sign was described as gibberish by a judge!
The onus is on the PPC to prove compliant not you to disprove.
But yes take ANPR out.

Was man in uniform clearly identified etc? If not you can add a point about that too.

Redx

you have no idea if the signage is BPA compliant, so you allege it isnt making them have to prove to popla that it is (its not about what you consider legible, its if the signage conforms to the BPA CoP)

for all you know they may send in the wrong car park details, the wrong signage details , all manner of things trip them up on signage and you wont find many signs that conform to the BPA CoP so it stays IN , whatever you believe, lol

dont do their job for them, put them to strict proof seeing as they are aiming the invoice at you , so make them prove every aspect of their invoice to the assessor

chances are you will win on not a gpeol but you need more than one winning appeal point

if there are no anpr and its a windscreen ticket, obviously you omit it, but that operative should have tried to prevent you breaking the rules and in not doing so he aided and abetted the rule breaking.

judges would say (and have said) he should have told you that if you carried on doing as you did then you would break the rules and so should suggest that you dont do it or he would have to ticket the vehicle (its called fair warning)

lozzabeth

Ok I'll ensure I keep that in. I'll start drafting up...

He was recognisable by the ticket machine over his shoulder but that was it - it was pelting down with rain so apart from a quick exchange I didn't pay much attention to him other than noting he was of school leaving age and extremely obnoxious . He could see clearly why i had parked there but continued tinkering with his machine while I put the baby in the car. Grrrrr!!

Redx

yep, you pay peanuts , you get monkeys, 1 hours instruction on using a ticket machine , no instructions on the law or the "rules" or the BPA CoP

Dee140157

Regarding the parking operative.
In the BPA code of practice it says:

9 Professionalism
9.1 The Code is based on the understanding that operators &
and drivers should deal with each other in a respectful way.
This means that as a member of the AOS you must maintain a professional standard of behaviour in carrying out your operational duties.This includes making sure that
• your front-line operational staff wear a uniform and carry a photo-identity card that is visible and available for inspection by drivers
• you deal with drivers and other members of the public in a professional way, avoiding using aggressive or threatening language.

It won't win an appeal, but I would still put it in there for good measure. It is always good to put breaches of the c.o.p. in front of POPLA.

lozzabeth

I have taken a couple of templates and merged them together while hi-lighting anything particular to my case in blue, could you please advise if this looks ok?

My concern is that I was parked in a disabled bay which is shown on the floor markings. Regardless of the signs the blue pictures drawn out on the floor are pretty obvious. I just didn't have much option at the time, as was agreed by NEXT and the Estates Management of the Retail Park.


[FONT=&quot]Dear POPLA Assessor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds:

1. No Genuine Pre Estimate of Loss
2. Contract with Landowner
3. Misleading Signage[/FONT]
[FONT=&quot]


1. a) The Charge is not a contractual fee – it is a disguised breach
The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the Notice to Keeper and the rejection letter to my appeal the Operator states that the charge is for “being in contravention of” the terms printed on the contractual warning signs. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that:

"The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pays the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid disabled badge” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

On the day in question there was neither damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach. [/FONT]T[FONT=&quot]he car park was not even a quarter full and all of the disabled parking spaces outside of the Store were vacant on either side of the vehicle, as shown by the photographic evidence. Additionally there can be no loss of potential income in a free car park.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2. Contract with Landowner
Care Parking does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.[/FONT]

In addition to the above, Coliseum Estates Management on behalf of the landowner, have deemed this charge void and have since requested that Care Parking cancel their pursuit of any parking charge.

[FONT=&quot]It is also my understanding that Care Parking are no longer instructed by the Coliseum's Management Company and any agreements in existence have since been terminated.[/FONT]

[FONT=&quot]3. Misleading Signs[/FONT][FONT=&quot]
Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading, with wording that dresses up the charge as a 'contractual' fee. It is not; see point 1 a). [/FONT][FONT=&quot]
[/FONT]
[FONT=&quot]There was no agreement to pay. No consideration/acceptance flowed - so no contract exists. [/FONT][FONT=&quot]
[/FONT]
[FONT=&quot]The sign misleadingly alleges a 'contractual' sum. If so, there would be a payment mechanism and a VAT invoice. There is none. This is not a transparent contract and is a disguised penalty. Terms must be clear otherwise under the doctrine of contra proferentem, the interpretation that favours the consumer applies.[/FONT][FONT=&quot]

[/FONT]This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of Care Parking not expecting to read a contract when they arrive to shop. 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.'

The signs are certainly not 'startling'. Nor was there any lighting to illuminate the terms, which were in a very small font. 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 any hefty 'charge'. Terms on a notice - or even several notices dotted around a large retail 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.

[FONT=&quot][FONT=&quot]In conclusion, I request that my appeal be upheld and the charge dismissed.[/FONT]
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