Formal Demand - Help please

angry_and_skint

Hi,

Sorry to be a nuisance, I know you guys must be busy.

Just wanted to check again if the above POPLA appeal is good enough or needs any tweeking?

I'm gonna send it off soon, so just want to make sure I've given myself the best chance and not left any valuable points out.

Regards

Dee140157

I don't like the example you have copied very much.

There are various things I would like to alter and this post gets too long then.,

Can I suggest you stick more closely to eg this template

https://forums.moneysavingexpert.com/discussion/comment/66321761#Comment_66321761

angry_and_skint

Thank you kindly for your assistance Dee,

I have nabbed a few points from the appeal you suggested and changed it slightly. Have proof read in my sleepy state....but will read over better tomorrow and send away hopefully.

Hopefully its looking a bit better now? .... All pointers greatfully received....

Re: Armtrac PCN, reference code xxxxxxxxxx
POPLA Code:

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

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was inadequate so there was no valid contract formed
4) Breach of POFA 2012
5) Photo – Inaccuracy
6) Unfair terms
7) Code of practice breach

1) No genuine pre-estimate of loss

This car park is a free car park limited to hour of parking. It is alleged the driver overstayed in this car park by the total time of -- minutes.

The charge of £100 for this overstay is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Armtrac Security Services (Armtrac) must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused, therefore Armtrac have no cause of action to pursue this charge.

I would like to see a full breakdown of the costs incurred by Armtrac as a result of the alleged breach. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

Armtrac cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Armtrac are likely to be paid by their client - so any such payment income must be balanced within the breakdown Armtrac supply and must be shown in the contract.

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

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

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

3) The signage was inadequate so there was no valid contract formed

Upon visiting this site I see that the signs in this car park are very small and high up. This makes it difficult for any driver entering this car park to see, read or understand them. There are also very few Armtrac signs, which consist of red text on a white background. This is not prominent enough to create a contract with the driver.
Any photos supplied by Armtrac to POPLA will no doubt show the signs with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require Armtrac to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

4) Breach of POFA 2012

The Notice alleges an incident on

---

and for Armtrac to establish keeper liability under the POFA 2012 they were duty bound to ensure that a compliant Notice to Keeper was served between day 29 and day 56. Clearly, to send the Notice in the post, a full 70 days later is fatally late. As Armtrac have not met keeper liability requirements POFA 2012 does not apply. They can therefore only persue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As Armtrac have neither named the driver(s), nor provided any evidence as to who the driver(s) was, I submit I am not liable to any charge.

5) Photo - Inaccuracy

I require the Operator to present records as to 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 images. This is important because the entirety of the charge is founded on two images purporting the overstay.

6) Unfair terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 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 small sign of terms placed too high to read, 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.”

7) Code of practice breach

Upon receiving my initial appeal letter, Armtrac rejected this but however failed to supply a valid POPLA verification code. They stated that I must provide driver details before this would be provided. After a further email to the company they were not prompted. It then took a complaint to the BPA for them to provide this.

Provoking the keeper into further communication to gain driver details and withholding a POPLA code are clear breaches of the BPA CoP.



Due to all points stated, I therefore respectfully request that my appeal is upheld and the charge dismissed.


Yours,

Coupon-mad

It will win because of no GPEOL or the POFA 2012 non-compliance with the deadline for the NTK, or if Armtrac don't prove their authority from the landowner.

I would remove this bit as surely it's just a remnant from an Excel appeal (Excel are paid at the Peel Centre):

'and in any case I believe Armtrac are likely to be paid by their client'.

I don't think Armtrac are paid by the landowner - it's an unusual set up Excel have! Armtrac offer the 'service' free then get their ill gotten gains from motorist victims.

angry_and_skint

Many thanks for the advice Coupon Mad.

Just going to get it touched up and sent off

Will let you know how things go!