Care Parking Lapse in Formal Demand Letter

lozzabeth

Hi Everyone

I would be most grateful if you could share your thoughts on the below before I submit.

Many thanks!



Re: Care Parking PCN, reference code xxxxxxxxxx
POPLA Code:

I am the registered keeper and I wish to appeal a recent parking charge from Care Parking. I submit the points below to show that I am not liable for the parking charge:

1) The charge was dropped by the Landowner's Estate Management Company

2) The Notice to Keeper does not comply with the Protection of Freedoms Act 2012 by being late and over the statutory date allowed. As such there is no registered keeper liability for this charge

3) No genuine pre-estimate of loss

4) No standing or authority to pursue charges nor form contracts with drivers

5) The signage was not readable so there was no valid contract formed


1) Charge has been dropped by the Landowner's Estate Management.

At the same time I sent my appeal letter, I also sent an appeal letter to NEXT Retail the Store the vehicle was parked outside. As they have an ongoing action for child and parent spaces outside of their Store, the charge was immediately agreed to be dropped by Coliseum Management reference XXXXXX

I have since informed Coliseum Estate Management of Care Parking's pursuit of the Charge (to which they requested a copy) and have been informed that Care Parking were notified to drop the charge and they have since been relinquished from their Contract with the Coliseum.

2) The Notice to Keeper does not comply with the Protection of Freedoms Act 2012 by being late and over the statutory date allowed. As such there is no registered keeper liability for this charge

The date between the alleged offence and the date of the notice to myself, the registered keeper, was 63-days. This is irrespective of Care Parking's alleged conversation with the driver on the day or pictures of a yellow envelope on a windscreen.

3) No genuine pre-estimate of loss

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. The 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.

The British Parking Association Code of Practice uses the word 'MUST':

"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...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.''

4) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Care Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that Care Parking merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put Care Parking to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Care Parking and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).

Once again I point out that Care Parking have been informed by the Landowner's commericial site agent (Coliseum Estates management) to cancel this charge, therefore they are not acting on behalf of either landowner or commercial site agent.

5) The signage is not readable so there was no valid contract formed between Care Parking and the driver

There was no agreement to pay. 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 Care Parking and 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.

In conclusion, I request that my appeal be upheld and the charge dismissed.

Yours faithfully,

Dee140157

I think that's a slam dunk at POPLA. I will be surprised if point 1 doesn't win it for you!

Send it off.

lozzabeth

All submitted

lozzabeth

Update everyone..... POPLA appeal APPROVED!!!!! :beer:

It would appear Care Parking didn't even bother to submit any supporting information. They simply didn't try to put up an argument for their charge.

Many thanks everyone for all your help :j

Redx

exceelent news

please post the ppc and decision here https://forums.moneysavingexpert.com/discussion/4488337