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Can someone pls read by POPLA appeal

Here is my appeal taken from your template here. The stuff in blue is what I have changed/added to make it quicker to read. I wasnt parked in a bay in swansea EXCEL car park.
Any tips , comments, additions are very very gratefully received.




Dear POPLA,
I am the registered keeper & this is my appeal:

1)The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, so if a tyre was indeed over a bay line (which is denied as I am the keeper and it is up to EXCEL to show as much) there was no loss of potential income in a free car park.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. I therefore think the charges are punitive.

2) Lack of signage - no contract with driver
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

It was extremely dark at the time of parking. The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times...” These signs are not readable from any distance. The charges are clear from a distance but any other information is not clear. It is not clear in the dark either.
Also there was no yellow box indicating a clearway. There are no signs to indicate a clearway.
There are no yellow lines to indicate a clearway. There are no signs whatsoever that state “ No parking or waiting at anytime.” I would like to indicate strongly to POPLA that this is a lie.

Chris the attendant on duty said that the area is to drive his EXCEL van to his space which he was still able to do. The van was parked there at the same time as my own car. Therefore I did not park in a restricted area.

The definition of clearway is “a main road other than a motorway on which vehicles are not normally permitted to stop.” It cannot be a clearway if the objective is to park an EXCEL van there. It is not a main road.

The ticket I received from Excel Parking had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, ie, for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn’t legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.

To breach a contract, one must have been formed in the 1st place.
It’s my submission that such a contract was not formed. At no time was it brought to my attention on any sign that I had the right to enter a contract for parking without payment of the relevant parking fee offered by the landowners, for another parking charge set quite separately by Excel Parking.
If such a contract was intended it would have made that clear. There is no offer to park at the location by payment of such a charge, and there is no description of what I get from such a contract, let alone be in a position to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract.
If there was an offer of that sort it should have been displayed on the signs saying, more or less, “parking at any time for unlimited and unrestricted periods is £60, including use of disabled bays by non blue badge holders” for instance.

3) Lack of standing/authority from landowner to issue tickets
EXCEL has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put EXCEL to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKCPS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that EXCEL are entitled to pursue these charges in their own right.

I require EXCEL to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. 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 is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists.

5) Unreasonable/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 lack of signs or markings to indicate an area not for parking , 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.”

I contend it is wholly unreasonable to rely a lack of signs/markings in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

6)No photographic evidence given when requested.

BPA code of practice 22.3 states “If the driver asks for them, you should give them copies
of any photographic evidence you have. Ordinarily you should not charge for this unless Data Protection legislation specifically allows you to.”

7) Ticket issued was in breach of terms according to POPLA

BPA: Code of practice 10.1 states “You must make sure your staff and agents are competent
to do the tasks they carry out. “
POPLA Annual report 2013 states “The details on the parking charge notice cannot be changed once issued. If the operative makes a mistake before issuing it, for example by entering an incorrect vehicle registration mark, then the parking charge notice should be voided and a new one issued.”
Parking attendant Chris admitted to me that he wrote my registration details on top of another driver’s. I had to find the attendant to confirm whether the ticket was issued to me or that another driver had written my details on top of theirs. It was very confusing. The ticket should be voided due to not being clear. On my vehicle registration mark the P looks like a R, 4 is unclear, CJ are unclear. The make of my vehicle has been written over another make. The time seen and issued have been altered. The fact that he wrote my details over another will be clear on their carbon copy of the ticket issued.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.







«1

Comments

  • Coupon-mad
    Coupon-mad Posts: 162,745 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 15 June 2014 at 7:54PM
    There are places you've admitted who was driving such as:

    Chris the attendant on duty said that the area is to drive his EXCEL van to his space which he was still able to do. The van was parked there at the same time as my own car. Therefore I did not park in a restricted area.

    Unless you've already said who was driving then don't do so to POPLA!

    Also in your 'no GPEOL' paragraph #1 you could add this seeing as VCS and Excel are owned by the same person and they are bound to try a similar loss statement if they bother to send you any evidence:

    Nor is the charge 'commercially justified'. If Excel cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:

    ''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

    This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''


    My case is the same and Excel contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Excel are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #3.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Treety_P
    Treety_P Posts: 18 Forumite
    edited 15 June 2014 at 8:02PM
    Thanks so much for ready my letter.:beer: That's so helpful. Do you think I have a strong case?

    Also changed that para.
    Chris the attendant on duty said that the area is to drive his EXCEL van to his space which he was still able to do. The van was parked there at the same time as the alleged vehicle. Therefore the alleged vehicle did not park in a restricted area.

    IS that ok?
  • Coupon-mad
    Coupon-mad Posts: 162,745 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    edited 15 June 2014 at 8:08PM
    Do you think I have a strong case?
    Everyone does. Everyone here wins, we have a 100% POPLA appeal win rate for over a year.

    I would only mention 'Chris' if you say 'Chris the attendant on duty said to the driver at the time that the area is...'

    Also make sure you check there's nowhere else that you've made it clear who was driving...I have not read every word! In fact I can see 'me' and 'I' again in the final part where you talk about Chris again!! PROOF READ WHAT YOU'VE PUT, BEFORE SUBMITTING IT.
    PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
    CLICK at the top or bottom of any page where it says:
    Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD
  • Treety_P
    Treety_P Posts: 18 Forumite
    edited 15 June 2014 at 8:09PM
    Yes I just started checking it after you said that.I will add your bit too. Many thanks indeed! xx
  • Treety_P
    Treety_P Posts: 18 Forumite
    I have my appeal ready and checked by you guys for popla. Do I bother emailing the fact I had a ticket via photo evidence...or photo of me parking in what I thought was a bay?
  • Dee140157
    Dee140157 Posts: 2,864 Forumite
    Part of the Furniture Combo Breaker Mortgage-free Glee!
    Yes send photo evidence linked to any final points you have made. Remember though it is the legal points especially No GPEOL that should win.
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • Treety_P
    Treety_P Posts: 18 Forumite
    Thanks dee. I didn't park in a bay.... I thought the lines tarmaced over were just dirty. I am not sure if pics would help or hinder. What do you think?
  • Dee140157
    Dee140157 Posts: 2,864 Forumite
    Part of the Furniture Combo Breaker Mortgage-free Glee!
    As we can't see the photos we can't comment.
    Certainly send the ticket as this shows that they have suffered no loss and therefore their GPEOL statement should not stack up.
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
  • Umkomaas
    Umkomaas Posts: 44,526 Forumite
    Part of the Furniture 10,000 Posts Name Dropper Photogenic
    'Parked in a bay' or 'not parked in a bay' are points of mitigation - POPLA don't do it! Spend time researching and understanding the real appeal points that win at POPLA:

    1. No genuine pre-estimate of loss (GPEOL)
    2. Signage
    3. No Contract with landowner to pursue charges in their own name at court
    4. No proprietary interest in the land
    5. Unlawful Penalty Charge
    6. ANPR Accuracy (if caught by ANPR cameras).
    Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .

    I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.

    Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.

    #Private Parking Firms - Killing the High Street
  • Dee140157
    Dee140157 Posts: 2,864 Forumite
    Part of the Furniture Combo Breaker Mortgage-free Glee!
    I will ask Crabman to merge this thread with you other thread, it is easier to keep information together.
    Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.
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