Help please to check POPLA appeal.

emmasebbeth

Hi everyone,

After reading the Newbies thread I have mocked up a POPLA appeal using other successful appeals (thanks to all who have posted them).

I have added a couple of points relating to the individual circumstances and wanted someone to check that these are ok before I submit. Basically my husband was doing some work for the store after closing and was there around 40 mins. The store was within a retail park and my husband said he did not see any signage indicating that he needed to pay - which of course he would have done if he had seen it (would have been £1 as after 19.00). As we about 2 hrs from the car park in question we haven't been able to return to car park to take pictures or verify. So I found it difficult to complete the section on unclear signage, but felt something should be included as he has never had a parking fine doing numerous jobs at similar retail sites so something must be amiss.

Your expert advice would be much appreciated,

Thanks in advance.

Here it is:

Dear POPLA adjudicator,

I am writing to appeal against a parking charge levied by Excel Parking Services Ltd on ….......... I am the registered keeper of the vehicle concerned.

The grounds for my appeal are as follows:

1) No genuine pre-estimate of loss

Excel Parking Services Ltd (Excel) states that a parking charge is issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. At the time of the incident the store was closed and there was only one other vehicle in the car park, therefore the store did not suffer any loss as a result of the car being present in the car park nor did it in any way affect the successful operation of the business which was closed.

The charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel must therefore be required to explain their 'charge' by providing POPLA with a detailed financial breakdown 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 so Excel have no cause of action to pursue this charge. I specified in my original appeal that I would like to see a breakdown of the costs incurred by Excel as a result of the alleged breach. Excel have failed to provide this information, stating that the charge is in line with BPA guidelines and therefore “deemed reasonable”. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. 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 can “cannot be punitive or unreasonable”.

Excel 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 Excel are likely to be paid by their client - so any such payment income must be balanced within the breakdown Excel supply and must be shown in the contract, which leads me to my next appeal point.

2) No standing or assignment of rights to enforce this charge in the courts

Excel have no proprietary interest in the land concerned and have not responded to a second letter requesting a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Excel do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Excel are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel to impact upon visiting drivers in their own right, for their own profit. 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 payments 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.

3) Unfair terms

The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which states:

‘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.’

Furthermore, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2: Indicative and non-exhaustive list of terms which may be regarded as unfair”

1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfill his obligation to pay a disproportionately high sum in compensation.”
5(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. (2) 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.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a 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.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss, which if the breach did occur would have been £1 if the driver had been informed of that by clearer and transparent signage. The charge of £100 imposed by Excel constitutes an unfair term as it is disproportionate with respect to the alleged infringement.


4) Unclear signage that does not comply with BPA Code of Practice.

I believe the signs and any core parking terms that the parking company are relying upon were too small for any driver to see, read or understand when driving into this car park. The Operator needs to show evidence and signage map/photos on this point - specifically showing the height of the signs and where they are at the entrance, whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed on the ticket machines or on a ticket itself, do not alter the contract which must be shown in full at the entrance. I believe the signs failed to properly and clearly warn/inform the driver of the terms in this car park as they failed to comply with the BPA Code of Practice appendix B. I require the operator to provide photographic evidence that proves otherwise. Following my initial appeal I have been provided with printouts of computerised versions of the signs supposedly on display at the Cavendish retail park by Excel. However, these printouts themselves have discrepancies (e.g. detailing the reduced charge for early payment will be £40 when in fact £60 was requested) therefore if in use at the car park are inaccurate. I reiterate that photographic evidence of the actual signs in use should be provided and not merely a computerised mock up that in no way demonstrates that these signs were in use at the time and location of the alleged breach.

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”.

The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.

The idea that any driver would accept these terms knowingly is perverse and beyond credibility.


5) ANPR - Inaccuracy and Non-compliance including unclear ANPR data usage signs.

In addition to the above appeal point I question the entire reliability of the ANPR system. 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 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 clear information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:

''21 Automatic number plate recognition (ANPR)
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
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.''

The signs at the car park do not clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used and stored. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here. Unless the Operator can show documentary evidence otherwise, then this BPA Cop 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). This Operator is put to strict proof to the contrary with records and photos.



yours,


The registered keeper's name

hoohoo

This is fine. Might be helpful to put bullet points at the top to let the adjudication see your points easily.

Also, Excel will issue a new GPEOL explanation which we have not seen yet (although we have seen the VCS one), so when you get your operator evidence pack, come back here to check for the latest advice.