Notice to owner

Coupon-mad

Yep search the forum for 'identify creditor POPLA' and change the default search to 'show posts' rather than show 'threads'. You'll soon find a relevant paragraph as the search works really well with a specific choice of keywords and asking for the POSTS to be shown.

kop1te

Now with a revised NTK section, again please ignore the formatting, I will make sure this is correct on my submission.


Dear POPLA Assessor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds:

1. No Genuine Pre Estimate of Loss
2. Contract with Landowner
3. Non compliant notice to keeper

4. Misleading signs

1) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £140 is being sought for an alleged breach of the parking termsnamely “A valid Pay & Display ticket was not clearly on display”consequently I contend, and the BPA code of practice states, that a charge forbreach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is notautomatically recoverable simply because it is stated to be a parking charge,as it cannot be used to state a loss where none exists.

On the day in question there was neither damage nor obstruction caused (nor isany being alleged) and I therefore contend there was no loss caused to eitherthe Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), LordDunedin stated that a stipulation "will be held to be a penalty if the sumstipulated for is extravagant and unconscionable in amount in comparison withthe greatest loss which could conceivably be proved to have followed from thebreach" and "there is an assumption that it is penalty when a singlelump sum is made payable by way of compensation on the occurrence of one ormore or all of several events, some of which may occasion serious and othersbut trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parkedfor 10 minutes or for 24 hours and the same amount is charged for any allegedcontravention, it is clear that this is punitive and that no consideration hasbeen given to calculating a genuine pre estimate of loss in this case.

I therefore require the Operator to submit a full breakdown of their genuinepre estimate of loss to show how this loss was calculated in this particularparking area and for this particular alleged breach. Operational business costscannot possibly flow as a direct result of any breach as the operator would bein the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations,where it states that parking charges for breach on private land must not exceedthe cost to the Landowner during the time the Motorist is parked there andremind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of theappeals process after the parking charge notice was issued but in order forthis to represent a genuine pre estimate of loss, they must first show thatthey incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequentlycannot be reasonably claimed to have been caused by the breach and as I havestated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that:

"the aim of damages is to be compensatory, beginning with the idea thatthe aim is to put the parties in the position they would have been in had thecontract been performed. It also seems that courts have been unwilling to allowclauses designed to deter breach as this undermines the binding nature of theinitial promise made. Whilst the courts have reasonably moved away from astrict interpretation of what constitutes a genuine pre estimate of loss,recognising that in complex commercial situations an accurate pre estimate willnot always be possible, nevertheless it remains that a charge for damages mustbe compensatory in nature rather than punitive. In this case it is clear thatthe dominant purpose of the charge is to deter parking for longer than the timepaid for. Accordingly, I am not satisfied that the charge can be commerciallyjustified".

In another recently upheld POPLA appeal, Marina Kapour did not accept asubmission by the operator that the inclusion of costs which were made up ofgeneral business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular carpark operation cannot of itself amount to commercial justification. I find thatthe charge is not justified commercially and so must be shown to be a genuinepre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similararguments are raised by appellants. The amount of £140 demanded is punitive andunreasonable, is not a contractual fee and can neither be commerciallyjustified or proved to be a genuine pre estimate of loss and I respectfullyrequest that my appeal be upheld and the charge dismissed.

The signage in the car park indicates a Parking Charge of £85 for noncompliance, yet the notice to owner gives a parking charge of £140.


2. Contract with Landowner
The Operator does not own the land in question and have provided no evidencethat they are lawfully entitled to demand money from a Driver or Keeper. Theyown neither proprietary nor agency rights and hold no title or share of theland. I do not believe that they have the necessary legal capacity to enterinto a contract with a Driver of a vehicle parking there or to allege a breachof contract in their own name as creditor. I believe that at best they may holda site agreement limited to issuing tickets and as such I require that theyprovide POPLA with an unredacted copy of the actual contract with the land owner(nota lessee or managing agent).

In order to comply with the BPA code of practice, this contract mustspecifically grant the Operator the right to pursue parking charges in theirown name as creditor, please note that a witness statement such as a signedletter to the effect that such a contract exists will be insufficient toprovide all the required information and therefore be unsatisfactory for thefollowing reasons:

a) Some parking companies have provided 'witness statements' instead of therelevant contract. There is no proof that the alleged signatory has ever seen thecontract or that they are employed by the Landowner. Such a statement would notshow whether any payment has been made to the Operator which would obviouslyaffect any 'loss' calculations. Furthermore it would not serve to provide proofthat the contract includes the necessary authority required by the BPA Code ofPractice to allow the Operator to pursue charges in their own name as creditorand to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'notvalid evidence'. If the Operator provides a witness statement merely confirmingthe existence of a contract but no unredacted copy of that contract then POPLA shouldrule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lackof ownership or assignment of title or interest in the land reduces any contractto one that exists simply on an agency basis between the Operator and theLandowner containing nothing that the Operator can lawfully use in their ownname as mere agent that could impact on a third party customer. I therefore respectfullyrequest that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with acopy of any evidence provided to POPLA as requested sent with sufficient time forconsideration and rebuttal.

3) Non compliant Notice to Keeper - no keeper liability established underPOFA 2012

No notice to keeper has been received from Minster Baywatch.



The Notice to Owner received fromthe debt recovery company Parking Collection Services fails to state the periodof parking, only the time of the issue of the alleged notice, and also fails toinform the keeper of the arrangements for the resolution of disputes orcomplaints that are available.

In addition, the wording makes this a non-compliant NTK under the POFA 2012,Schedule 4:

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK isgiven} if the following requirements are met. (2)The notice must—
(a) specify the vehicle, the relevant land on which it was parked andthe period of parking to which the notice relates.
(g) inform the keeper of any discount offered for prompt payment andthe arrangements for the resolution of disputes or complaints that areavailable'

The Notice I have received, as the registeredowner of the vehicle, makes it clear that PCS is relying on Schedule 4 of theProtection of Freedoms Act 2012. PCS has failed to comply in the wording oftheir Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be PCS ortheir client, their debt collecting agent, or the landowner or indeed someother party. Schedule 4 of the Act requires a Notice to Keeper to have thewords to the effect that ‘The Creditoris.....”.

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not justindicate that the creditormust be named/assumed, but “identified”. The owner of the vehicle is entitledto know the identity of the party with whom the driver has allegedly contracted.In failing to specifically identifythe ‘Creditor’in its Notice to Keeper, MET Parking Services has failed to establish keeperliability. In this case, the NTK has not been correctly 'given' under POFA2012and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated thatthe validity of a Notice to Keeper is 'fundamental to establishing liability'for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutoryprovision, comply with the Act.'


In addition the notice to owner was sent outside the allotted 56 day timeframe:-



Screen ticket issued 18.03.2014
Notice to owner issued 03.06.2014



4) Misleading Signs
Terms are only imported into a contract if they are clear and so prominent thatthe party 'must' have known of it and agreed. The terms are misleading,with wording that dresses up the charge as a 'contractual' fee. It is not;see point 1 a).

There was no agreement to pay. No consideration/acceptance flowed - so nocontract exists.

The sign and the Notice to Keeper are ambiguous and contradictory. On theNotice to Keeper the sum is stated as a 'contravention' for 'breachingthe terms and conditions' yet the sign misleadingly alleges a 'contractual'sum. If so, there would be a payment mechanism and a VAT invoice. There isnone. This is not a transparent contract and is a disguised penalty.Terms must be clear otherwise under the doctrine of contra proferentem, theinterpretation that favours the consumer applies.

In conclusion, I request that my appeal be upheld and the charge dismissed.

kop1te

Please tell me I'm nearly there

Also how long does it take for a response to a POPLA appeal?

Umkomaas

kop1te wrote: »

Please tell me I'm nearly there

Also how long does it take for a response to a POPLA appeal?

Getting there! Haven't the time at the moment (about to go out) to read through your draft in detail, but will do so later - although others will no doubt chip in before then, so no need to wait for me if someone else gives it the thumbs up.

In terms of POPLA turnaround: 5 - 6 weeks, but as this is holiday season, it might take a little longer. So enjoy the summer without checking your post/email every day. POPLA will give you an approx date when acknowledging receipt of your appeal.

HTH

Coupon-mad

kop1te wrote: »

Please tell me I'm nearly there

I would say you are there already! Is this right though, did you re-write this bit as it seems odd that it talks about a NTK when you had a NTO (a misleading document name, copying a Council one):

The sign and the Notice to Keeper are ambiguous and contradictory. On theNotice to Keeper the sum is stated as a 'contravention' for 'breachingthe terms and conditions' yet the sign misleadingly alleges a 'contractual'sum. If so, there would be a payment mechanism and a VAT invoice. There isnone. This is not a transparent contract and is a disguised penalty.

kop1te

Coupon-mad wrote: »

I would say you are there already! Is this right though, did you re-write this bit as it seems odd that it talks about a NTK when you had a NTO (a misleading document name, copying a Council one):

The sign and the Notice to Keeper are ambiguous and contradictory. On theNotice to Keeper the sum is stated as a 'contravention' for 'breachingthe terms and conditions' yet the sign misleadingly alleges a 'contractual'sum. If so, there would be a payment mechanism and a VAT invoice. There isnone. This is not a transparent contract and is a disguised penalty.

I didn't re-write it, I will do to make it say notice to owner.

Thanks :j

Coupon-mad

And does it say what that line says it does? If not then amend it.

kop1te

Thanks for all of your help, I have had my appeal upheld in that they didn't identify the driver and the NTK was non compliant. Sent to me in pdf form so when I get 10 minutes over the next few days I will transpose into the results section. Thanks again to all on this forum who helped.

Coupon-mad

Yay - well done!

We'd really like to see that decision and the Assessor's name, and your 10 digit POPLA code if you don't mind, because we have another newbie on here now with a Minster Baywatch ticket and I was only saying to them this week that I was certain, from other threads, that the NTK was flawed. Other posters could then cite your POPLA code and outcome in their POPLA appeal.

kop1te

4111764502
Reasons for the Assessor’s Determination
The appellant has at no point admitted being the driver, there is no evidence that he was, and he has not named the driver and provided a serviceable address. Therefore, the appellant’s only liability is as the keeper, which means that the requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. I find that the operator has failed show that they have produced a ‘notice to keeper’ which complies with the requirements of paragraph 8 of Schedule 4. The operator must produce evidence that such a notice has been produced regardless of whether the issue is raised by the appellant, as the liability is not based in the law of contract but is created by the statute. Specifically, the ‘notice to owner’ is not shown to comply with sub-paragraph 2(g) by informing the keeper of the arrangements for the resolution of disputes or complaints. This is because neither mention, as specified by sub-paragraph 8(b), any arrangements by which disputes or complaints may be referred by the keeper to independent adjudication or arbitration. Therefore, as no compliant notice to keeper has been shown to exist, and the appellant does not admit to being the driver, the charge notice has not been shown to be enforceable against the appellant.
Accordingly, the appeal must be allowed.
Christopher Monk
Assessor