APCOA ticket in Travelodge

Redx

if you check the popla website they tell you that payment for a ticket will not be considered as an appeal point

its up to the PPC to prove their charge is a gpeol , not you , clearly not if they have only lost a few quid

misbehavingexpert

Redx wrote: »

its up to the PPC to prove their charge is a gpeol , not you , clearly not if they have only lost a few quid

They've not even lost a few quid, i.e. the parking fee, that's my point!

Will post POPLA appeal for comment shortly as it's an amalgamation of a few templates found on this forum; hope that's alright!

misbehavingexpert

Outline of APCOA appeal below, mashed from various examples on the site. I have included a slightly-modified version of a sentence I found on another post in this forum wherein someone had a season ticket of some kind (highlighted blue). Thanks all for your help.

Dear POPLA,

I am the registered keeper of the above vehicle. I received a Notice to Keeper (NTK) from APCOA Parking dated 16/07/2014 for a parking charge of £60 issued on [DATE] at 11:35:50 for a breach of contractual terms and conditions by the driver of the vehicle.

I denied all liability to APCOA on 05/08/2014. Following APCOA’s rejection of my submission on 15/08/2014, I wish to appeal on the grounds stated below. I would ask that all points below are taken into consideration.

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

APCOA’s sign states the charge is for 'breach of [the] parking conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss.

There is no loss flowing from this parking 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.

The parking charge should compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges.

In this instance, unpaid charges are nil as a parking ticket for the vehicle was purchased to cover the date of issue of the Parking Charge Notice (PCN) as per the attached evidence. Any breakdown purporting to be a genuine pre-estimate of loss cannot include general business expenses because these would remain the same whether or not there were any alleged breaches of contract by drivers.

In addition, nor is the charge 'commercially justified'. If APCOA cites 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing an effort at a loss statement by another Operator (VCS) that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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 APCOA contracts are nothing like ParkingEye's contract in the Beavis case anyway, where ParkingEye 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, APCOA 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) as per point 3, below.

2) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between APCOA and the driver

I see that the sign is unlit, so that in darkness it is not visible and the words are unreadable. I put APCOA to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. The sign is not prominent and 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.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) APCOA has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

APCOA signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.

3) Lack of standing/authority from landowner

BPA CoP paragraphs 7.1 & 7.2dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not a lessee or agent). APCOA has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. 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 APCOA are entitled to pursue these charges in their own right.

I require APCOA 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.

4) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. This makes this a non-compliant NTK under the POFA 2012, Schedule 4:

Schedule 4 para8(1):'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—

(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.

POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'.

The NTK is a nullity so no keeper liability exists.

5) Unreasonable/Unfair Terms

I would assert that the charge being claimed by APCOA is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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 sign of terms placed as described in point 2 above, 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 unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. 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 for POPLA to inform APCOA that the charge is dismissed.

Yours faithfully,

[NAME]

Coupon-mad

Was it dark when you parked, if not then that example is littered with irrelevant stuff about 'unlit' signs in the dark!

And I guess you have copied an Excel version for this bit but the thing about them being paid is specific to Excel appeals only, so remove this:

In my case, APCOA 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) as per point 3, below.

There is almost certainly more you can say is wrong about the NTK (I assume it arrived between day 29 and day 57 as you haven't mentioned it arrived late?). But as well as the period of parking being missing I suspect some of the details such as identifying who the 'creditor' is, are missing. And more than one date are likely to be missing as required by paragraph 8, as well as not specifying any unpaid parking charges on the NTD and NTK (not the PCN sum, any 'charges' which were outstanding before the PCN was even given - IMHO if that is 'zero' then the NTD and NTK still have to specify it).

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

8(1)A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(a) is given in accordance with this paragraph if the following requirements are met.
(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(i) specify the date on which the notice is sent (if it is sent by post)


Finally, APCOA are one of several PPCs who have started to copy PPS' made-up GPEOL calculation after the event, to try to win at POPLA like PPS did twice (an error). Look, this is what APCOA and others are doing following some recent fairly useless but sneaky BPA 'training':

http://parking-prankster.blogspot.co.uk/2014/08/large-number-of-parking-companies-lying.html

Typical 'plagiarising' PPCs list a whole load of costs including 3 hours Management time spent on every PCN, LOL! So you need to rebut that in advance which means adding more to the first appeal point about GPEOL. Go to the newbies thread post #3 and click on the PPS POPLA appeal example for Didcot car park, where you will see a longer 'no GPEOL' argument saying the PPC has massaged their calculations after the event. It quotes a POPLA case decided by Ricky Powell and the wording from Henry Greenslade of POPLA, saying that a GPEOL cannot be a summary of costs calculated afterwards.

You need to grab some of that information and add it to your POPLA appeal to knock APCOA's efforts into touch. It will work.

misbehavingexpert

Brilliant, thanks so much for your reply!

Coupon-mad wrote: »

Was it dark when you parked, if not then that example is littered with irrelevant stuff about 'unlit' signs in the dark!

It wasn't dark, but I thought the legislation says that the signs needs to be visible in the dark [for it to be an acceptably valid sign], i.e. to form a contract and independent of this appeal and its circumstances.

Coupon-mad wrote: »

There is almost certainly more you can say is wrong about the NTK (I assume it arrived between day 29 and day 57 as you haven't mentioned it arrived late?). But as well as the period of parking being missing I suspect some of the details such as identifying who the 'creditor' is, are missing. And more than one date are likely to be missing as required by paragraph 8, as well as not specifying any unpaid parking charges on the NTD and NTK (not the PCN sum, any 'charges' which were outstanding before the PCN was even given - IMHO if that is 'zero' then the NTD and NTK still have to specify it).
...

The arrival date was indeed ok. There are indeed some other details missing (btw I'm using paragraph 9 not 8 as driver is not identified, but have cross-references and the points still apply); I'll incorporate these into a new draft.

Q1) I don't understand what dates they need to explicitly state?

Q2) I don't understand about the creditor thing: do they need to explicitly use the term? They include their own details and how to pay them obviously.

Coupon-mad wrote: »

You need to grab some of that information and add it to your POPLA appeal to knock APCOA's efforts into touch. It will work.

Q3) Am I right to assume you think I should provide the evidence that parking was paid for, including the bold/blue text above?

I'll incorporate everything else into a new draft today or tomorrow. My deadline is next Friday. Thanks again so much for your help.

misbehavingexpert

Here it is; significantly re-worded stuff from the Didcot case (I couldn't find a link from NEWBIES so I searched and found the thread titled "Premier Parking Solutions Rejected Appeal POPLA next stop?" - hope that was right?

New stuff in blue. I have also changed point 2 in light of your first comment Coupon Mad.. thanks again!

Dear POPLA,

I am the registered keeper of the above vehicle. I received a Notice to Keeper (NTK) from APCOA Parking dated 16/07/2014 for a parking charge of £60 issued on [DATE] at 11:35:50 for a breach of contractual terms and conditions by the driver of the vehicle.

I denied all liability to APCOA on 05/08/2014. Following APCOA’s rejection of my submission on 15/08/2014, I wish to appeal on the grounds stated below. I would ask that all points below are taken into consideration.

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

APCOA’s sign states the charge is for 'breach of [the] parking conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss (GPEOL).

There is no loss flowing from this parking 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.

The parking charge should compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges.

In this instance, unpaid charges are nil as a parking ticket for the vehicle was purchased to cover the date of issue of the Parking Charge Notice (PCN) as per the attached evidence. Any breakdown purporting to be a genuine pre-estimate of loss cannot include general business expenses because these would remain the same whether or not there were any alleged breaches of contract by drivers.

In addition, nor is the charge 'commercially justified'. If APCOA cites 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing an effort at a loss statement by another Operator (VCS) that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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 APCOA contracts are nothing like ParkingEye's contract in the Beavis case anyway, where ParkingEye 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, APCOA are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they have no standing nor loss to claim in their own right anyway. This is one of several reasons why I will require the landowner contract in full (unredacted) as per point 3, below.
APCOA’s letter of rejection against my appeal, and their signage as stated above, confirm that they consider the charge to be for contractual breach, meaning that they must demonstrate their charge to be based on an advance regard to genuine pre-estimate of loss, rather than a tariff. This cannot consider any attempt by APCOA to massage its POPLA evidence to now manufacture a ‘loss’ statement which duplicates layers of staff time, include double counting, or otherwise represent a crude calculation of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss.
To quote Assessor Chris Adamson, from a POPLA decision v PPS, earlier in 2014:
''... ‘No valid ticket or permit displayed’... The Operator submits that the charge is not a sum sought as damages, rather it is ‘an excess charge not a breach or a sum for damages’. Accordingly the Operator submits that it need not reflect the loss caused by the breach. In this case, I am not minded to accept this submission. The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking. The Operator has submitted in the alternative that the sum, ‘if considered genuine pre-estimation of losses’ is based on a number heading related to direct loss. I do not accept this submission. Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made. Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits.

...It seems clear from the Operator evidence that, whilst its intentions were actually to charge a tariff, the signage displayed did not indicate this. It has not demonstrated that anything was being offered in return. Instead the wording of the sign indicates damages, although it does not appear that the Operator’s intentions when setting the level of the charge were to compensate for the loss estimated. Accordingly, I must allow the appeal.'' Chris Adamson, Assessor (Feb 2014).

I have found another recent POPLA case v PPS (decision reference 6860024043 in February 2014), when Assessor Nozir Uddin decided to allow the appeal on the basis that the Operator had failed to prove that the parking charge amount was a genuine pre-estimate of loss. This was because PPS' intentions prior to parking charges being issued at that site, were stated to be that the charge was 'a sum in the nature of a contractual fee rather than a sum for the breach of it'. And yet the signage and rejection letter gave away the fact it was really a matter of breach of contract which required a GPEOL (as is the case here). In that case, PPS tried to argue both scenarios - which cannot be allowed, they cannot say it was either one or the other depending upon which suits. Here are some excerpts from PPS' statement regarding POPLA case 6860024043:
''The amount sought as a PCN is a term of the contract rather than a sum for the breach of it. This contractual agreement is clearly worded on our warning signage.''
''With regards to the claim that there has been no loss suffered by the company, we consider the amount on the PCN as a reasonable charge and as part of a contractual agreement. ''

This sum due for parking, or a percentage of it, would be the only 'contractual sum' in the alleged contract which can represent consideration (refuted anyway, as stated above). A PCN for £60 is not recoverable in this instance, however APCOA tries to slant the calculations.

The point I am making is that any suggestion that APCOA’s charges are based on any loss must be untrue because this was not their stated intention in advance. Recently, understand that APCOA has tried its luck in following PPS’ example in the above cases, by pretending that its intention all along was to charge for loss. This (PPS’) approach fooled POPLA on at least two occasions until robust appeals exposing the truth achieved a more measured view, as in POPLA code 6861754004 (PPS again) where Assessor Ricky Powell noticed the heavily duplicated and frankly ridiculous staffing costs:

''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

It seems to me that PPS has tried to mislead POPLA to gain pecuniary advantage against motorists who have all paid for parking and can prove it; in following PPS’ example, APCOA would be doing the same. This is unsupportable and unprofessional, as is the massaged 'loss statement' that they may now suddenly use to try to magically meet the sum of a PCN.
In simple terms, if APCOA’s tries to follow PPS’ approach of massaging ‘loss’ figures as above:
- It beggars belief that managers and directors would spend hours on each POPLA case. There are too many layers of repeated checks by highly paid staff to be credible.
- APCOA uses PPS’ template POPLA 'GPEOL' summary & response which would not be individually written nor even applicable to my own case at all.
- staff/NI are all tax-deductible costs of running a business and do not directly flow from one alleged breach in a car park where there was no initial loss.
- APCOA staff do not just handle appeals, their work includes dealing with clients/permits, and Directors have supervisory/staffing/new business and Management duties so I am not liable to pay their wages nor to line the pockets of APCOA’s owner with yet more profits. Any calculation incorporating this would be laughable in their GPEOL statement.
- POPLA related 'work' cannot apply to each PCN as a 'genuine pre-estimate', because only 1% or 2% of cases ever get to POPLA stage.
- Since the vast majority will never to go to appeal, let alone as far as POPLA, this is comparable to cases where Operators add 'debt collection' costs. In those cases, POPLA routinely dismiss those heads on the basis that 'cases may never get to debt collection stage so this is not applicable'. The same applies to 'POPLA costs'.
- If I had not appealed at all, instead paying between day 14 and day 28 then the full cost of the PCN would have applied. APCOA's GPEOL must explain that.
- Any other 'business costs' (including a DVLA fee that in fact costs £2.50 and stationery/postage) cannot be added since this does not flow from all PCNs.

Where an Operator has submitted a breakdown of the losses incurred as a result of the breach and a large percentage of the amount comes from staff costs, they must be able to justify those heads as relating to every typical PCN (whether appealed or not). If APCOA includes several layers of checks on the work of other staff members, I would contend this is an unnecessary amount of checks and that the Operator has not shown that the items referred to are substantially linked to the loss incurred by every breach.

Indeed, in the 2014 Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

Even if APCOA has since changed its GPEOL calculations from any versions similar to those of PPS presented to POPLA Assessors just a few months ago, then I contend that the calculation (even if it is a more credible effort than those previously presented) must fail as it is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any effort by APCOA would be disingenuous and merely an over-inflated and duplicated new 'calculation of alleged actual loss, made afterwards'. It is not enforceable according to the words of Mr Greenslade.

2) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between APCOA and the driver

I see that the sign is unlit and with tiny font, so that in darkness it is not visible and the words are unreadable. I put APCOA to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. The sign is not prominent and 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 sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) APCOA has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

APCOA signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.

[Section 3 as before]

4) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

The following points (A)-(D) may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4 para 9, as reproduced (where relevant) below and highlighted accordingly:
(A) The 'period of parking' is not shown, only the time of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 9(2)(a) and 9(2)(b));
(B) Does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 9(2)(c))
(C) Specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking, as shown by the evidence attached (in contravention of POFA 12 Schedule 4 para 9(2)(d));
(D) Does not explicitly identify the creditor (as required by POFA 12 Schedule 4 para 9(2)(h)).

Schedule 4 para9
(1):'A notice which is to be relied on as a {NTK} is given if the following requirements are met.
(2)The notice must—
(a) specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full
(c) state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d) if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i) specified in the notice to keeper, and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;

POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'.

The NTK is a nullity so no keeper liability exists.

[Section 5 as before]

I therefore respectfully request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.

Yours faithfully,

[NAME]

Dee140157

It's really hard to read blue writing on an ipad. Sorry .

And that has to be the longest no GPEOL section I have seen. I suspect you will have repeated yourself several times. Can you abbreviate it a bit and post in black if you want it to be read. My eyes glazed over! I can't do a word count on the ipad, but it must be high.

On the keeper liability section keep the first half. Don't bother with the second half. They have access to POFA 12 too!

The rest looks ok.

Guys_Dad

All the appeal needs now is this https://www.google.co.uk/search?q=picture+of+kitchen+sink&espv=2&biw=1366&bih=643&tbm=isch&imgil=KhMywq_096BBhM%253A%253BpIZL9iA-6bgn9M%253Bhttp%25253A%25252F%25252Fwww.msmindbody.com%25252Fthe-secret-to-happiness-thats-hiding-in-your-kitchen-sink%25252F&source=iu&fir=KhMywq_096BBhM%253A%252CpIZL9iA-6bgn9M%252C_&usg=__8UFwjW553mcCU6ewoknqKmRJyDs%3D&sa=X&ei=xJwMVKbhE9DgaKnbgkg&ved=0CEYQ9QEwAg#facrc=_&imgdii=_&imgrc=KhMywq_096BBhM%253A%3BpIZL9iA-6bgn9M%3Bhttp%253A%252F%252Fwww.msmindbody.com%252Fwp-content%252Fuploads%252F2014%252F05%252Fgleamingkitchensink.jpeg%3Bhttp%253A%252F%252Fwww.msmindbody.com%252Fthe-secret-to-happiness-thats-hiding-in-your-kitchen-sink%252F%3B834%3B581

Look, I know you want a comprehensive appeal and don't want to leave out anything, but yours is overloaded. Look at the POPLA DECISIONS thread to see a more focussed appeal.

But in the end, it's your appeal and it's best you do it how you think fit. Clearly you have copied chunks from a number of successful appeals, but ask yourself "Do I need all of that"?

Coupon-mad

misbehavingexpert wrote: »

It wasn't dark, but I thought the legislation says that the signs needs to be visible in the dark [for it to be an acceptably valid sign], i.e. to form a contract and independent of this appeal and its circumstances.

Yes - technically - but the fact it is unlit isn't relevant to your case so I would remove anything saying 'unlit' or 'dark'.

I'm using paragraph 9 not 8 as driver is not identified,

Not correct. Paragraph 9 is for postal PCNs where there was never a windscreen ticket at all. You need to cite paragraph 8.

Q1) I don't understand what dates they need to explicitly state?

It is complicated but have a look at paragraph 8.

Q2) I don't understand about the creditor thing: do they need to explicitly use the term? They include their own details and how to pay them obviously.

Yes they need to 'identify the creditor' so you should argue that cannot possibly be left to assumption. Use pedantic/critical words like the POPLA assessor did as shown in post #8 here:
http://forums.pepipoo.com/index.php?showtopic=91553&hl=knom

Q3) Am I right to assume you think I should provide the evidence that parking was paid for, including the bold/blue text above?

We don't usually suggest people talk in detail about whether parking was paid for; just to mention it briefly and say this means there was no initial loss. But if you want you could include proof it was paid as an attachment as long as the evidence doesn't suggest a name of who was driving/in the car.

misbehavingexpert

Brilliant thanks all; I'm so grateful for your help. Sorry, it was a very long no GPEOL argument. just trying to cover all bases and trying (badly) to guard against a dodgy 'loss' calculation as mentioned.

Dear POPLA,

I am the registered keeper of the above vehicle. I received a Notice to Keeper (NTK) from APCOA Parking dated 16/07/2014 for a parking charge of £60 issued on [DATE] at 11:35:50 for a breach of contractual terms and conditions by the driver of the vehicle.

I denied all liability to APCOA on 05/08/2014. Following APCOA’s rejection of my submission on 15/08/2014, I wish to appeal on the grounds stated below. I would ask that all points below are taken into consideration.

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

APCOA’s letter of rejection against my appeal, and their signage, both confirm that they consider the charge to be for contractual breach, meaning that they must demonstrate their charge to be based on an advance regard to genuine pre-estimate of loss. This cannot consider any attempt by APCOA to massage its evidence to manufacture a ‘loss’ statement which duplicates layers of staff time, include double counting, or otherwise represent a crude calculation of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss.

There is no loss flowing from this parking event. APCOA 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.

The parking charge should compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges.

In this instance, unpaid charges are nil as a parking ticket for the vehicle was purchased to cover parking including the date of issue of the Parking Charge Notice (PCN).

In addition, nor is the charge 'commercially justified'. If APCOA cites 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing an effort at a loss statement by another Operator (VCS) that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

In my case, APCOA are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they have no standing nor loss to claim in their own right anyway. This is one of several reasons why I will require the landowner contract in full (unredacted) as per point 3, below.

In several cases this year, Operators (e.g. PPS) have tried to massage ‘loss’ calculations or imply that their original intention was to rely on a parking charge being a tariff or a charge for damage. However, APCOA cannot argue this to be the case by their own acknowledgement of the charge as one for breach.

To quote Assessor Chris Adamson, from a POPLA decision v PPS, earlier in 2014:
''... ‘No valid ticket or permit displayed’... The Operator submits that the charge is not a sum sought as damages, rather it is ‘an excess charge not a breach or a sum for damages’. Accordingly the Operator submits that it need not reflect the loss caused by the breach. In this case, I am not minded to accept this submission. The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking. The Operator has submitted in the alternative that the sum, ‘if considered genuine pre-estimation of losses’ is based on a number heading related to direct loss. I do not accept this submission. Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made. Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits.
...It seems clear from the Operator evidence that, whilst its intentions were actually to charge a tariff, the signage displayed did not indicate this. It has not demonstrated that anything was being offered in return. Instead the wording of the sign indicates damages, although it does not appear that the Operator’s intentions when setting the level of the charge were to compensate for the loss estimated. Accordingly, I must allow the appeal.'' Chris Adamson, Assessor (Feb 2014).

In February 2014, Assessor Nozir Uddin allowed the appeal (decision ref. 6860024043) on the basis that the Operator had failed to prove that the parking charge amount was a genuine pre-estimate of loss. This was because PPS' intentions prior to parking charges being issued at that site, were stated to be that the charge was 'a sum in the nature of a contractual fee rather than a sum for the breach of it'. And yet the signage and rejection letter gave away the fact it was really a matter of breach of contract which required a GPEOL (as is the case here). In that case, PPS tried to argue both scenarios - which cannot be allowed, they cannot say it was either one or the other depending upon which suits.

In POPLA code 6861754004:
''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

This sum due for parking, or a percentage of it, would be the only 'contractual sum' in the alleged contract which can represent consideration (refuted anyway, as stated above). A PCN for £60 is not recoverable in this instance, however APCOA tries to slant the calculations.
Where an Operator has submitted a breakdown of the losses incurred as a result of the breach and a large percentage of the amount comes from staff costs, they must be able to justify those heads as relating to every typical PCN (whether appealed or not). If APCOA includes several layers of checks on the work of other staff members, I would contend this is an unnecessary amount of checks and that the Operator has not shown that the items referred to are substantially linked to the loss incurred by every breach.

Indeed, in the 2014 Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

Even if APCOA has since changed its GPEOL calculations from any versions similar to those of PPS presented to POPLA Assessors just a few months ago, then I contend that the calculation (even if it is a more credible effort than those previously presented) must fail as it is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any effort by APCOA would be disingenuous and merely an over-inflated and duplicated new 'calculation of alleged actual loss, made afterwards'. It is not enforceable according to the words of Mr Greenslade.

2) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between APCOA and the driver

I see that the sign has tiny font, so that the words are barely readable. I put APCOA to strict proof otherwise; as well as a site map they must show photos. The sign is not prominent and 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 sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) APCOA has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

APCOA signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.

3) Lack of standing/authority from landowner

BPA CoP paragraphs 7.1 & 7.2dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not a lessee or agent). APCOA has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. 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 APCOA are entitled to pursue these charges in their own right.

I require APCOA 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.

4) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

The following points (A)-(E) may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4 para 8:
(A) The 'period of parking' is not shown, only the time of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b));
(B) It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 8(2)(c))
(C) It specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking (in contravention of POFA 12 Schedule 4 para 8(2)(d));
(D) It does not identify the creditor (as required by POFA 12 Schedule 4 para 8(2)(h)).
(E) The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 para 8(2)(i)).

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant.

POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. The NTK is a nullity so no keeper liability exists.

5) Unreasonable/Unfair Terms

I would assert that the charge being claimed by APCOA is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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 sign of terms placed as described in point 2 above, 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 barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. 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 for POPLA to inform APCOA that the charge is dismissed.

Yours faithfully,

[NAME]