APCOA ticket in Travelodge

Coupon-mad

I have tweaked it a bit to avoid repetition and shorten it, to try to make it flow better. I removed some of the PPS stuff as it was too much about PPS and not enough about APCOA:




Dear POPLA,

I am the registered keeper of the above vehicle and I am not liable for this PCN. I wish to appeal on the grounds numbered 1 - 5 as outlined below:

1) The Charge is not a genuine pre-estimate of loss
APCOA’s charge represents liquidated damages for breach, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable. APCOA cannot demonstrate any initial loss caused by the parking event and even if they do try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

http://www.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.

Further, if APCOA claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put APCOA to strict proof that a GPEOL was ever discussed and decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.


2) The signage was not seen before parking - so there was no valid contract formed between APCOA and the driver
A lack of signs at the entrance to a car park, and unclear wording, creates no contract. Since receiving the NTK, I sought out and tried to read the sign which has tiny font, so that the words are barely readable. The sign is not prominent and not reflective. I put APCOA to strict proof otherwise; as well as a site map they must show photos. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. 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. 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.


3) Lack of standing/authority - APCOA have been shown in their failed small claims, to have no rights or authority from a Landowner
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). 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. 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 BPA Code of Practice and does not allow APCOA (specifically) to issue proceedings for this sum for this alleged contravention in this car park. APCOA have previously failed in their only attempted small claims in 2014 when it was exposed that only their principal (a Hospital) had the right to start court proceedings, and APCOA were merely a paid agent with no rights nor further 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. A 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 prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.


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.
Schedule 2 of the 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 and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event.

If this appeal is not successful then I hereby give notice to APCOA that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.

Yours faithfully,

misbehavingexpert

Coupon-mad wrote: »

I have tweaked it a bit to avoid repetition and shorten it, to try to make it flow better. I removed some of the PPS stuff as it was too much about PPS and not enough about APCOA:

That is absolutely amazing. Thank you so much!

Umkomaas

misbehavingexpert wrote: »

That is absolutely amazing. Thank you so much!

And did you spot the time CM was doing this? 1:37am! Devotion, or what?

misbehavingexpert

Submitted! Only changed "If the driver had paid this PCN ... and had never appealed it" to "If the driver had paid this PCN ... and it had never been appealed" to avoid any ambiguity.

Very many thanks to all involved. I'll let you know the result.

misbehavingexpert

Just received an e-mail from POPLA informing me that APCOA has cancelled the ticket. For info, judgement day was scheduled for 12 Oct.

Thanks to all who helped! Hope this helps others.

Coupon-mad

That's good news seeing as the above POPLA appeal is the version I suggest for APCOA 'windscreen ticket' cases - they didn't like it then!