POPLA Appeal JAS Parking

ns280

Hi all


I have looked at the information on the Newbie thread and recent appeals for JAS.



Please can you take a look over the below and let me know if anything needs to be edited before submitting to POPLA.



Many thanks





Dear POPLA Assessor

I am writing, as I was the registered keeper of the vehicle xxx xxx, to appeal against the parking charge notice xxxxx, issued by J.A.S Parking Solutions on xx/xx/xx. I believe that I am not liable for this parking charge on the grounds stated below, and would ask that all points are taken into consideration.

1) No Breach of Contract and No Genuine Pre-Estimate of loss

The car park at this site is ‘free’ due no parking charge being levied. The car park at the time of the alleged breach was not full and there was no physical damage caused; therefore there was no potential loss of income in a free car park.

The operator cannot lawfully include their everyday operational running costs in any ‘loss’ claimed as they would have been in the same position had the parking charge not been issued. I assert there can have been no loss arising from this incident no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was imposed is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £94 can be reduced to £56.40 by early payment the charge is unreasonable to begin with.

2) Contract With the Landowner- Not Compliant With the BPA Code of Practice and No Legal Status to Offer Parking or Enforce

J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I would also request that POPLA to please check whether JAS have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC (EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.

3 No Contract With the Driver
There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.

4) Unclear, Inadequate and Non-Compliant Signage

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance or exists to any of the shops.
I contend that the signs and any core parking terms JAS are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])

5) 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. In particular, 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" and 5(2) states: "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."


6) Unreasonable
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) Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

8) Breach of the Protection of Freedoms Act 2012 and BPA CoP
First correspondence relating to the matter other the windscreen notice was a parking charge notice – reminder from TNC Parking Services dated xx/xx/xx, but this was not received until xx/xx/xx under PoFA 2012. This is breach of Schedule 4 para. 8(5) and 9(5).

There is also a breach under Schedule 4 para. 7 that sets out the mandatory information, which must be included on the parking ticket. The issued ticket although offering a discount for payment within 14 days of £56.40 was only 60% discount; this is not compliant with the BPA CoP which must be at least a 40% discount. Therefore due to the breach of para. 7 this means the Notice to Keeper is invalid and condition set out in para. 6 of Schedule 4 has not been adhered to. This failure ensures the registered keeper cannot be held liable for the alleged debt of the driver

Redx

seems ok to me but part 1 doesnt make sense

1) No Breach of Contract and No Genuine Pre-Estimate of loss

The car park at this site is ‘free’ due no parking charge being levied.

highlighted in blue

da_rule

Looks good. Only thing I would suggest is to put a summary at the top, something along the lines of:

"I appeal against this charge on the following grounds:
1) No Breach of Contract and No Genuine Pre-Estimate of loss
2) Contract With the Landowner- Not Compliant With the BPA Code of Practice and No Legal Status to Offer Parking or Enforce
etc etc"

This just makes it easier for the POPLA assessor to see what grounds you are appealing on.

Redx

agreed , a bullet point summary always helps

you can also compare yours to this recent one too https://forums.moneysavingexpert.com/discussion/4917603

ns280

Thanks guys.

I will add the summary, take out first sentence and then submit to POPLA.

da_rule

You can leave in that the car park was free. But maybe reword it to:

"The car park is free and my vehicle was not causing an obstruction or any damage, therefore no loss has been suffered."

Also, did you receive a notice attached to your vehicle? Or was this a notice through the post?

ns280

Ok, thanks.

The notice was on the windscreen.

Dee140157

Can we just check.
Are you
A) appealing the windscreen notice to to JAS
b) appealing to the NTK you have receive from JAS
C) appealing to POPLA after you have received a rejection of your appeal from JAS?

You only appeal to POPLA after you appeal to JAS. I wasn't entirely clear as usually people mention a failed appeal before they ask for help with POPLA appeal.

ns280

Hi Dee

I appealed to JAS using the standard template which was rejected and they issued a valid POPLA code.

Thanks

Coupon-mad

I would not cite VCS v HMRC, that's old news that doesn't support your case. So remove it I reckon.

And I would move your point #8 (which is important and a slam dunk winning point in its own right, as long as you have never said who was driving!) up to be point #3 and move the rest down as they are less important.

And if this was a typical JAS ticket alleging 'left the site' then you can add to the unclear signage paragraph that the signs included no site boundary map or information about what constitutes this 'site'. And neither have JAS supplied any proof that all occupants of the car including passengers, went 'off site' at any point.

ns280

Coupon-mad I sent the appeal before seeing your reply. Is it too late to send the amended appeal with your advice in a email to POPLA or is it best to leave it now as an appeal has been submitted?