POPLA appeal

parkingerror_2

Good evening,


I have drafted the below letter as an appeal to POPLA to a parking charge received earlier in the year so I wondering if the members of this forum could cast your eye over it and see if there are areas that I have not adequately covered within my letter.


Thank you in advance for your help.




I wish to appeal this PCN on the following grounds:

• The charge is considered punitive rather than genuine pre-estimate of loss resulting from liquidated damages
• There is no evidence of a valid contract or legal capacity to issue parking tickets
• The evidence provided by the Operator is not compliant with the British Parking Association Code of Professional Conduct ("BPACPC")
• The signage at the Site was not compliant with the BPACPC
• Unclear when contract commenced and ended
• ANPR - Inaccuracy and Non-compliance

Detailed Points:

• The charge is considered punitive rather than genuine pre-estimate of loss resulting from liquidated damages
  

The Operator has failed to justify how the £100 PCN charge is considered a genuine pre-estimate of loss rather than a punitive amount contravening the Unfair Contract Terms Act 1997 and Unfair Terms in Consumer Contracts Regulations 1999:

1. Under the Unfair Terms in Consumer Contracts Regulations 1999, Schedule 2 of those Regulations it gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e):
   
   1. ‘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.’
2. Furthermore, Regulation 5(1) says:
   
   1. ‘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’
3. And 5(2), which states:
   
   1. ‘A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.’
4. The £100 charge the Operator are imposing is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
   
   1. ‘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.’

Instead of responding to explain why the charge is a genuine pre-estimate of loss, they have advised me that it was contain within the alleged contract and that the amount falls within the British Parking Association recommended guidelines. This is not legally satisfactory as they should have explained how the charge relates to the liquidated damages suffered; including a breakdown of the amounts incurred, by whom, and when this calculation was determined and how these particular 'losses' arose. In addition, they have failed to explain how and why they charge a fixed sum no matter whether the alleged contravention was trivial or more serious as surely the length of breach should determine this.


Further to those points raised above, the photograph enclosed with the Operator's letter which allegedly shows the signage at the Site (which was not seen by the driver) and is not date stamped to show when it was taken states “to deter abuse, there is a charge…” which suggests that the charge is a penalty charge rather than a genuine pre-estimate of loss.

• There is no evidence of a valid contract or legal capacity to issue parking tickets

Despite requests, the Operator have failed to provide me with a copy of the landowner's confirmation that they are able to manage and enforce parking on their behalf. Without this document I am unable to establish that they are the landowner's agent and thus payment for the alleged breach is due. Instead, they have suggested that the requirements of the Data Protection Act prevents them from doing so. This is despite clause 7 of the BPACPC requiring that this is held and recent POPLA assessors stating that once requested then this document should be made available. Given this lack of evidence then I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking at the Site because they have not been assigned any title or specific rights to enforce or to make contracts with drivers in their own right, or indeed to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012).


I require the un-redacted landowner contract including any payments made between the parties, names & dates & details of all terms included. For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payment made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.


If a contract is provided, I would require sufficient time to check whether the Operator has provided a full copy of the actual contemporaneous, signed & dated site agreement/contract with the landowner/occupier (not just a signed slip of paper saying it exists); check that it specifically enables the Operator to pursue parking charges in the courts, and whether that contract is compliant with the requirements set out in the BPACPC and make appropriate representation.

• The evidence provided by the Operator is not compliant with the BPACPC

The photographs provided with the Operator’s letter dated do not appear to compliant with clause 20.5 of the BPACPC as the photographs are not time and date stamp as required under this clause as the date and time stamp appears to be held separately in another system.

• The signage at the Site was not compliant with the BPACPC

The Operator has failed to provide me with any evidence about where the signs were located on the Site on the date of the alleged breach as required under clause 18.3 of the BPACPC. They have provided evidence of one of the signs but have not provided any records of the other signs at the site and the driver disputes that they were sufficiently prominent to create a contract. As a POPLA assessor has said previously in an adjudication “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear” thus appropriate evidence should be provided.

• Unclear when contract commenced and ended
  

The correspondence between the Operator and myself has failed to establish when the parking period begun, the letters from the Operator suggest that it began on XXXX but clause 18.5 of the BPACPC requires that the driver is given sufficient time to consider the terms and conditions (assuming that they were sufficiently prominent to create a contract which is disputed by the driver) thus this period should be deducted from the parking period to establish when the contract commenced. In addition, the BPACPC indicates at clause 13.4 that the Operator is required to 'allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action thus there is no evidence of the actual parking time.

• ANPR - Inaccuracy and Non-compliance

I require the Operator to present records regarding the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.


In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPACPC, which contains the following:




“Automatic number plate recognition (ANPR)

21.2 Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4 It is also a condition of the Code that, if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner;
• keep to the Data Protection Act;
• follow the DVLA requirements concerning the data;
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks.''


I have reason to believe that, potentially, clause 21 is being breached here. Unless the Operator can show documentary evidence otherwise, then this BPACPC breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case).


Finally, since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking charge notice, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

kirkbyinfurnesslad_2

Which parking company is this for

parkingerror_2

Hi, It is CEL.

kirkbyinfurnesslad_2

You need to state that

Any witness statement that is signed by Ashley Cohen should be disregarded

Ashley Cohen is a CEL employee and has no right to sign any witness statement

Coupon-mad

Depending upon the signage you may have to argue that the charge is not a genuine offer to park either (not a genuine 'contractual fee' really). So it's a penalty with no commercial or other justification as found in the higher court decision CEL v McCafferty (appeal) in Feb 2014. That case is linked in the NEWBIES thread under the cases won in post #5 of it.

Also that the NTK isn't POFA compliant so there's no keeper liability.

parkingerror_2

Hi Coupon-Mad,
I have added the following points to the end of section1 and added a new section 2. Is this sufficient to cover these points?


In addition, the recent case CEL v McCaffery appeal (3YK50188 AP476) at Luton County Court from February 2014, Mr Gibson QC found that the charge is not a genuine offer to park and that its main purpose is to deter and therefore a penalty rather than a contractual term.

• Non-Compliance with Keeper Liability Procedural Steps

With regards to the requirements of the Protection of Freedoms Act 2012, the Parking Charge Notice did not comply with the necessary procedural steps in order to recover the parking charge from the registered keeper. The Parking Charge Notice was issued following an alleged contravention recorded by an ANPR system, and as such no Notice to Driver was issued.

parkingerror_2

Coupon-Mad,


In my previous post I should have passed on my thanks for your help as it is much appreciated.

Coupon-mad

parkingerror wrote: »

Hi Coupon-Mad,
I have added the following points to the end of section1 and added a new section 2. Is this sufficient to cover these points?


In addition, the recent case CEL v McCaffery appeal (3YK50188 AP476) at Luton County Court from February 2014, Mr Gibson QC found that thecharge is not a genuine offer to park and that its main purpose is to deter and therefore a penalty rather than a contractual term.

• Non-Compliance with Keeper Liability Procedural Steps

With regards to the requirements of the Protection of Freedoms Act 2012, the Parking Charge Notice did not comply with the necessary procedural steps in order to recover the parking charge from the registered keeper. The Parking Charge Notice was issued following an alleged contravention recorded by an ANPR system, and as such no Notice to Driver was issued.

The first point is fine, yes. The second point should be (if I am right and CEL haven't improved their NTK wording:

Non-Compliance with Keeper Liability Procedural Steps
With regards to the requirements of the Protection of Freedoms Act 2012, the Parking Charge Notice did not comply with the necessary procedural steps in order to recover the parking charge from the registered keeper. The Parking Charge Notice did not contain the statutory wording from paragraph 9 of Schedule 4 and as such no keeper liability has been established.

I would also delete reference to VCS v HMRC 2012 which doesn't help.

parkingerror_2

Thank you Coupon-Mad and for the help that you have provided to myself and the other people on this site. I have submitted this and will let you know how I get on.

parkingerror_2

Coupon-mad,


I was wondering if you would mind helping me again as I have recently received an evidence pack from CEL with their reasons why the parking ticket should be upheld. I have drafted a response but would really appreciate it if you would cast your eye over it prior to submitting it to POPLA.


Thank you in advance for your help.

Coupon-mad

Please post it here, you only have a few days to reply to POPLA about it and I am at work this week in the daytime, and there are plenty of regular expert posters on this forum!