POPLA appeal

parkingerror_2

All,


I have now received a response from CEL to my POPLA together with their evidence so am planning on sending the below additional points but would be grateful if you would mind overviewing my response before I send it and advising me if anything is missing or needs further clarity; particularly, the points around liquidated and contracted damages.


I write to enhance one of the points in my original letter and provide counter argument to points raised by CEL following their response.
In point 2 of my original letter I explained that I did not believe that paragraph 9 of Schedule 4 had been complied with but was not as clear as I could have been about why I thought this so please find further clarification below.
The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:


''9 (2) The notice must—
(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) Describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d) Specify the total amount of those parking charges that are unpaid, as at a time which is
(i) Specified in the notice; 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, after the period of 28 days beginning with the day after that on which the notice is given—
(i) The amount of the unpaid parking charges specified under paragraph (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;
(h) Identify the creditor and specify how and to whom payment or notification to the creditor may be made.''
Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess from this document the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'payment not made in accordance with terms displayed on signage'. No fee was due so the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012.

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.
Now I will turn to responding to the points raised by CEL, although, unfortunately as they have not numbered them in their letter then it means that my responses may not be as easy to follow as I would ideally like them to be.

• Site signage

I am aghast that CEL believe that the signs are considered to be clear and has not disputed by the Appellant as I have advised on a number of times that the driver disputes that the signs were sufficiently clear to create a contract as they were not noticed by the driver and if there is no contract then no payment is due. As part of the response from CEL they have provided photographs of the signs at the site but have not provided a date when these pictures were taken so new signs may have been erected subsequently to the alleged offence. Additionally, CEL have failed to demonstrate that these signs were compliant with the BPACPC as required under clause 18 and appendix B; specifically, the entrance sign on page XX does not appear to meet the requirements of appendix B and the photographs provided do not provide a scale so one is unable to determine if the text size is sufficiently large to meet the code’s requirements.
Furthermore, by the Operator’s own admission the signs are placed high up on poles, near the entrance and throughout the site, indicating that it is possible that the driver could have missed these signs and also that they may not be placed in accordance with the BPACPC as it requires that “the sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead. (Appendix ”

• ANPR

The response from CEL fails to provide records detailing when the ANPR systems at the site were calibrated and instead provides an “assurance” from them that it has been. This is clearly insufficient to determine the time that the car entered and exited the car park is accurate, therefore, it is suggested that there is no legal basis for a claim from CEL.

• CEL’s response is inconsistent about what the basis of their claim is; trepass, contractual breach resulting in liquidated damages or contractual breach resulting in contractual damages.

On this basis, I will explain why there is no basis to each of their claims.
Trespass
Trespass of land is a wrong against the possession not ownership of the land so only the person who has exclusive possession of the land can sue for trespass. Despite repeated requests, CEL have failed to provide any evidence to demonstrate any title over this site, therefore, this maybe because they have no legal standing so are unable to allege trespass or loss. Additionally, previous POPLA decisions have stated that where the Appellant makes this claim the burden of proof shifts to CEL to demonstrate otherwise which they have failed to do thus the appeal should be upheld.

Contractual breach resulting in liquidated damages

The alleged contract is not clear whether the £100 is a contractual term or liquidated damages and/or a penalty clause due to the lack of clear contract. This is further demonstrated by the fact that in CEL’s response they acknowledge that it could be considered a genuine pre-estimate of loss hence their defence of the amount.

On the basis that the £100 charge is a genuine pre-estimate of loss then it far exceeds the cost to the landowner who would have received £0.00 from any vehicles parked as the car park is free to use for the first two hours. For this charge to be justified a full breakdown of the costs CEL has suffered as a result of the car being parked at the car park is required and should add up to £100. Despite my repeated requests for this, they have instead provided a list of possible costs. Below I have explained why I don’t feel that the costs listed by CEL could reach £100:

• Fee payable to DVLA - £2?
• Administrative Expenses, arising after the violation – Minimal - max £20;
• Stationary, postage etc, arising after the violation – max £2;
• Commercial justification – Irrelevant no monetary value;
• Loss from another vehicle parking (if applicable) – Irrelevant any new vehicle parked during the overstay would not be charged;
• Loss of revenue to attached business/businesses – Irrelevant as at the time of the incident the car park was not full, therefore the stores did not suffer any loss as a result of the car being present in the car park;
• Legal and/or professional advice – CEL have provided no evidence that they have taken any legal or professional advice relating to this PCN thus this cost is considered irrevelant;
• Wages/salaries of staff involved, arising due to the violation – one employee for half hour to issue fine max £15.

Thus the only conclusion that one can reach is that the £100 is a penalty clause purported to be a contractual term and thus the appeal should be upheld.
In light of this and the fact that the contract was not individually negotiated then this amount should also meet the requirements of the Unfair Contract Terms Act 1997 and Unfair Terms in Consumer Contracts Regulations 1999. CEL have failed to explain why the charge is not punitive; instead, explaining that they believe it is a contractual terms but this is disputed.
Contractual breach resulting in the implementation of contractual clause

The nature of the relationship between the parties is disputed by the driver as a contractual relationship can only be established if the driver saw (or ought to have seen) the signs which is not the case here as even the Operator suggests it is possible to miss the signs as they are “high up on poles”. In addition, as mentioned above the clause that CEL suggest is a contractual clause is not actually one for the reasons mentioned and is actually a penalty and thus the appeal should be upheld.

Coupon-mad

That's good.

Have they supplied the actual landowner contract (NOT just a slip of paper about it?). If not the actual contract then object that it doesn't show anything about the charges, contraventions, assignment of any rights to CEL, no specifics about whether they can pursue in the courts in their own right.

And I don't think this bit is in Appendix B, hasn't been for months:

without needing to look more than 10 degrees away from the road

parkingerror_2

Hi Coupon-Mad,


Thank you for your advice.


They have not sent a copy of the contract nor any slip of paper detailing any terms relating to the contract so I will re-iterate the point that I made in my original letter.


In terms of Appendix B, thank you for your advice here it appears that I have been using the version dated 1 October 2012 rather than the current one so I will amend my response accordingly.




Once again thank you for your advice it has been most helpful.

parkingerror_2

Sorry to bother you again but should the point about lack of contract be included as a separate point or within liquidated/contractual damages?

ColliesCarer

Include it as a separate point drawing the assessors attention to the fact that CEL

Have not sent a copy of the contract nor any slip of paper detailing any terms relating to the contract in rebuttal of my challenge point :

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

parkingerror_2

Hi ColliesCarer,


Thank you for your advice.


Just to be clear, I have received a copy of the parking terms and conditions but have not received a copy of the contract between CEL and the landowner. Does this make any difference to the advice you have provided?

Dee140157

No this doesn't make a difference.

parkingerror_2

All,


Thank you for your advice.


I have submitted my additional response and will let you know the outcome of the appeal which is expected in a few days.

parkingerror_2

All,


Thank you for your input into my defence.


Just to let you know that POPLA allowed my appeal. The rationale for the POPLA's assessor decision was as follows:


The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.

Reasons for the Assessor’s Determination

The operator issued parking charge notice number xxxxx arising out of the presence at the car park, on xx April 2014, of a vehicle with registration mark xxxxxxx. The operator recorded that payment was not made in accordance with the terms and conditions on the signage.

The appellant has made various representations; I have not dealt with them all as I am allowing this appeal on the following ground. It is the appellant’s case that the amount of the parking charge does not represent a genuine pre-estimate of loss.

The operator has responded by stating that the amount of the parking charge is a term of the contract and not an amount representing damages for a breach of contract. The operator has also provided a breakdown of the losses incurred by them if the amount of the parking charge notice is held to be an amount representing damages for a breach of contract. I find that it is not permissible for the operator to do this. This is because when a contract is formed the intention of the parties is fundamental. It is clear that the operator has intended the amount of the parking charge notice to be consideration and not damages.

Considering carefully, all the evidence before me, after objectively assessing the signage displayed at the site, I find that the signage does not mean that motorists may not display a valid ticket provided that they pay £100, which would make the amount of the parking charge consideration. However, I do find that the signage means that not displaying a valid ticket is not permitted and that a parking charge of £100 will be issued to vehicles. Therefore, I find that the amount of the parking charge does represent damages for a breach of contract.

Accordingly, this appeal must be allowed.

Coupon-mad

I am so glad that POPLA are spotting the cases where PPCs try to argue their charge was either a GPEOL or if not, something else!