Topher Charge Notice

Bertie129

Hi all,

I recently received a charge notice from 'Topher Ltd' for overstaying in a retail store car park by half an hour. The charge is for £85. I am the vehicle's keeper but was not the driver. The driver was shopping in the retail store, but also spent time shopping in other local stores before returning to the vehicle, so did stay the extra half hour.

I am a lot less worried after reading this forum. Any advice? Should I send the standard rejection letter from the sticky thread to the parking company? Should I state that I was not the driver, or that the driver was shopping in the retail store?

Thanks!

Dee140157

Appeal as registered keeper. Use standard template in sticky. Expect rejection. Appeal to POPLA. Expect a win.

Umkomaas

Bertie129 wrote: »

Hi all,

I recently received a charge notice from 'Topher Ltd' for overstaying in a retail store car park by half an hour. The charge is for £85. I am the vehicle's keeper but was not the driver. The driver was shopping in the retail store, but also spent time shopping in other local stores before returning to the vehicle, so did stay the extra half hour.

I am a lot less worried after reading this forum. Any advice? Should I send the standard rejection letter from the sticky thread to the parking company? Should I state that I was not the driver, or that the driver was shopping in the retail store?

Thanks!

You won't be sending any 'rejection letter'. You need to be sending an initial appeal letter, as per the NEWBIES sticky. The rejection letter is in the domain of the PPC, provided it includes a POPLA code, you're well on your way to knocking this on the head.

Look up 'How to win at POPLA' via NEWBIES sticky, post #3.

Bertie129

Thanks. Have drafted a shortened version of the standard challenge letter. Will let you know how it goes.

Fruitcake

Dee140157 wrote: »

Appeal as registered keeper. Use standard template in sticky. Expect rejection. Appeal to POPLA. [STRIKE]Expect a[/STRIKE] win.

Corrected it for you.

Bertie129

Hi all,

Thanks for your help. Got my rejection letter from the operator. They are saying that £85 is a charge for losses from a contractual breach. I have drafted the following based on the templates I've found here. Could someone look this over for me and offer suggestions of how to strengthen this appeal?

One thing I notice is that the letter states that the maximum parking time is 90 minutes, in fact I have returned to the site and there are signs saying it is actually 2 hours. Should I mention this?

Thanks!


POPLA Reference Number: XXXXXXXXXX

As the registered keeper of the vehicle XXXX XXX I wish to appeal a recent parking charge issued by Topher Ltd. 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 not in accordance with the BPA code of practice and was not sufficiently prominent to form a contract

1) No genuine pre-estimate of loss

This car park is a free car park on the premises of a Homebase store. The letter I have received from Topher Ltd (dated XX June 2014) states that the charge issued is a claim for losses suffered as a consequence of an alleged contractual breach. As such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. This might be, for example, a reasonable sum based upon alleged lost parking revenue, or loss of retail revenue at a shopping centre, if another car was prevented from parking. Since this is a free car park, no such loss of parking revenue could have been incurred. The occupants of the car recall that the car park was almost empty at the time of the event, and therefore no loss of retail revenue could have been incurred.

Given that Topher Ltd apparently charge the same lump sum for a 30 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious and damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

My appeal to Topher Ltd requested that they produce evidence that the requested sum of £85 amounted to a genuine pre-estimate of losses suffered by themselves or the landowner in respect of the alleged breach of contract, including a breakdown of losses suffered and the means by which such losses arose. No evidence was provided to show how such losses were incurred, and by whom, in respect of the alleged breach of contract. In the absence of this evidence I submit that the sum of £85 does not reflect a genuine pre-estimate of losses suffered, and therefore amounts to a penalty charge, which of course is not admissible in contractual law.

2) No standing or authority to pursue charges nor to 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, Topher Ltd must demonstrate assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. Evidence has not been produced by the Operator in their rejection statement so I have no proof that such an arrangement is in existence. 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 Topher Ltd to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Topher Ltd 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 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 at this location does not adhere to the BPA code of practice and was not prominent enough to form a valid contract between Topher Ltd and the driver

Unclear signage breaches Appendix B of the BPA Code of Practice which states that contractual 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. In the absence of sufficiently prominent and detailed signage, the driver could not have been made aware of any charges applicable nor that a contract had even been proposed by Topher Ltd in respect of the alleged event. There is no offer to park at the location by payment of a charge, and there is no description of what the driver would receive from such a contract. I submit that a valid contract was not offered; even if (non compliant) signs were present, the driver was not offered the opportunity to enter into a negotiation in order to influence the contractual terms, nor given the opportunity to accept or reject any terms. I submit that, if signs were present on the day of the alleged event, they were not prominent enough to form a valid contract. I submit that no detailed terms relating to this Operator's onerous, inflated penalty charge were visible, and it is therefore apparent 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.

The letter from Topher Ltd of XX June states that “customers are only allowed to stay on site for a maximum of 90 minutes”. If Topher Ltd maintain that a valid contract to this effect was offered and accepted, I require them to state the location, height, content and condition of each sign in the car park on the day of the alleged event, and to provide dated photographic evidence that such signs were clearly visible to drivers at the date and time of the alleged event, in order to establish that such a contract was brought home so prominently that it must have been accepted by the driver.

In addition, I submit that no signage was present indicating that automated number plate recognition (APNR) was in use at the location. Where APNR is in use, the Operator is obliged to display signs stating how the data thus collected will be stored and used. I say that Topher Ltd have failed to clearly inform drivers about the cameras in use at this location, what the data will be used for, and how it will be stored. I have also seen no evidence that they have complied with the other requirements in the relevant section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.

I request that my appeal is allowed.

Dee140157

I would certainly take photographic evidence of the fact that it says 2 hours and they are claiming 90 minutes. It brings into question their whole ability to accurately manage the car park!

Make the ANPR a separate point.

On a separate note- Have you complained to the store with any receipts you may have of the day? They can get it cancelled too.

nigelbb

Topher claim that you entered into a contractual agreement to pay the parking charge in which case an appeal on 'no GPEOL' will fail. We need to see a photo of the sign or the EXACT wording. Likewise for the NTK - redacted scan or EXACT wording. Do not submit your POPLA appeal as it stands.

Coupon-mad

They are saying that £85 is a charge for losses from a contractual breach

What did they actually say and what did their sign say (exact words)? Photos or scans please - you may have to remove the http from the link.

Can't believe for one minute their NTK complies fully with paragraph 9 of the POFA 2012 Schedule 4! Photos or scans please of all words on the NTK, both sides - you may have to remove the http from the link.

Were you 'half an hour over' the two hours or half an hour over the 90 minutes?!

Bertie129

Hi,

Both sides of the PCN and the rejection letter scanned here. I've removed all identifying information.

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I don't have a photo of the signs at the car park so I don't know exact wording. It said parking was free for 2 hours. I don't think it mentioned a charge, contract or any such thing. Should I go back and get a photo? The driver was half an hour over the two hours.

Thanks!

Coupon-mad

NTK which is not POFA 2012 compliant so there is NO chance of 'keeper liability'! *:

http://imagizer.imageshack.us/v2/1024x768q90/822/mxa6.jpg

http://imagizer.imageshack.us/v2/1024x768q90/819/z84m.jpg

Rejection letter states it's 'liquidated damages for breach' so you CAN argue 'no GPEOL':

http://imagizer.imageshack.us/v2/1024x768q90/853/jnx1.jpg

Base your POPLA appeal on the latest ParkingEye one in the hyperlink 'How to win at POPLA' in the NEWBIES sticky thread post #3. Make sure it includes the specific 'no GPEOL' paragraphs about free car parks where there is 'no obvious initial loss such as an unpaid tariff'.


* add in a section about non-compliant Notice to Keeper so there is no keeper liability (you will find a POPLA appeal with that paragraph in the same link in the NEWBIES thread - have a look at a CEL one for starters). Your NTK fails to identify the creditor and fails to warn the keeper about 'keeper liability' under POFA 2012 if they do not name the driver nor pay the charge within 28 days.