"Soft" appeal advice, UKPC, Riverside, Warrington

robod

Hi there,

I read all the sticky posts and FAQ and would like to clarify a couple of things please.

We had family over and went shopping at Riverside Retails park in Warrington on two cars. The car park is free, but apparently the maximum stay is 3 hours. The drivers overstayed and both keepers have received PCNs from UKPC.

I'm mostly clear on points 1-3 of the template appeal. We have some receipts from shops, but as the drivers were shopping together there is only one set of receipts between them. The question is, can we both send a copy of the same receipts without jeopardising our appeal to UKPC/POPLA/Court?

The second question is related to point 2 of the template appeal. The section of the car park where the cars were parked has one notice board which is almost completely obscured by a tree and not visible from the point the cars were parked. By walking straight to the shops you wouldn't see any notice board. Does it matter? If yes, is it worth attaching a photo of this when appealing to UKPC or shall I leave it for POPLA appeal?

Any advise will me much appreciated.

Thanks a lot.

ezerscrooge

You can try with the receipts, they most likely ignore them. As with the signage, this is a good appeal point for POPLA - point it out to UKPC by all means but if my experience is anything to go by with photos of non-compliant signage, they'll ignore that as well.

Just send a standard appeal...

Dear xxxxx


As the registered keeper of (reg) I'm in receipt of your parking invoice xxxxxx dated xxxxxx. I wish to invoke your appeals process as all liability to your company is denied on the following:


1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner


2) Your signage does not comply with the BPA Code of Practice



3) You are not the landowner and do not have the capacity to offer contracts or to bring a claim for trespass


4) There has been no contract with UKPC - ref. the case ParkingEye v Green (08/05/2014 High Wycombe) where it was ruled there could be no contract in a free car park as there was no consideration from the motorist. For a contract to exist, there must be consideration from both sides and, as this is a free car park, there was no consideration required from the motorist.


These points and others will be raised with POPLA should you not accept this appeal, and you will be expected to provide a full breakdown of your alleged loss, and your full unredacted contract with the landowner.


[FONT=&quot]This constitutes the entirety of my challenge and nothing further will be added. You must now, within 35 days, EITHER (i) accept my challenge and notify me that the charge is cancelled, OR (ii) reject my challenge, send me a PoPLA code, and suspend any collection activity pending my PoPLA appeal.

[/FONT]Yours,

xxxx

It is more likely that they'll cave in on that - there are in my neck of the woods

robod

Hi ezerscrooge,

Thanks for that. Especially point 4) seems to be encouraging. I've combined the template letter with yours.

However, I'd like to check the following statement from your template:
"[FONT=&quot]This constitutes the entirety of my challenge and nothing further will be added."

A paragraph above says "[/FONT][FONT=&quot]These points and others will be raised with POPLA ..."

Isn't it contradictory? Also, why would I want to limit myself by saying I won't add anything to my challenge? Is there a legal reason for it?

Thanks a lot

[/FONT]

Redx

However, I'd like to check the following statement from your template:
"[FONT=&quot]This constitutes the entirety of my challenge and nothing further will be added."
[/FONT]

[FONT=&quot]

this relates to your PPC appeal (your challenge to their speculative invoice), not any subsequent popla appeal

basically , its cancel , or send me a popla code (to a bpa member) as I am not saying anything further
[/FONT]

robod

Thanks Redx

robod

Dear helpful members of this forum,

With a reference to my first thread (forums.moneysavingexpert.com/showthread.php?t=4996868)

I have now reached the POPLA stage as UKPC happily rejected my appeal.

They are mentioning the Moloney QC in the case of ParkingEye v Beavis & Wardley and even saying Trading Standards agree with their "charges".

The scans are below. Does any of that change the standard POPLA arguments we should be using?

I will make another post with my POPLA appeal draft to make this (hopefully) easier to follow.

I'm not allowed to post links (6 years member isn't enough?!), so here are inactive links to the scans of UKPC reply. Please copy&paste them into your browser to see them:

Page 1 - flickr.com/photos/51253214@N04/14470935267/in/set-72157645643100346

Page 2 - flickr.com/photos/51253214@N04/14634395726/in/set-72157645643100346

Thanks

robod

After going through post #3 in the FAQ thread I came up with the following so far:

[FONT=Times New Roman, serif]1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'not 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 is free.

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 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.[/FONT]




[FONT=Times New Roman, serif]2) Signage does not comply with theBPA Code of Practice and was not sufficiently prominent to create any contract[/FONT]


I'm not entirely sure what to put here. Below is something I picked from one of the threads.
I have photos of the signs at the entrance and when the car was parked. My main issue is they don't mention ANPR anywhere only CCTV. Does it matter? Also the only sign on that side of the car park is completely obstructed by a tree (from the point where the car was parked). Should I mention all this in this section?


The link to all the photos is:
flickr.com/photos/51253214@N04/sets/72157645643100346/





[FONT=Times New Roman, serif]In addition, the BPA code of practice 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.''[/FONT]




[FONT=Times New Roman, serif]3. Flawed contract with landowner/Authority to issue PCN's – The Operator do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters this Operator have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put this Operator to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand this Operator to produce to POPLA the contemporaneous and unredacted contract between the landowner and this Operator.[/FONT]


[FONT=Times New Roman, serif]The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges , through the courts if necessary.[/FONT]


[FONT=Times New Roman, serif]4. Unlawful penalty charge - Since there is no demonstrable loss or damage yet a breach of contract as 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 Operator could state the letter as a invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as a official parking fine such as the ones issued by Police and local authorities.[/FONT]


[FONT=Times New Roman, serif]There has been no contract with this Operator - ref. the case ParkingEye v Green (08/05/2014 High Wycombe) where it was ruled there could be no contract in a free car park as there was no consideration from the motorist. For a contract to exist, there must be consideration from both sides and, as this is a free car park, there was no consideration required from the motorist.[/FONT]






[FONT=Times New Roman, serif]Any help will be much appreciated .[/FONT]


[FONT=Times New Roman, serif]Thanks
[/FONT]

Dee140157

[url]Http://flickr.com/photos/51253214@N04/14470935267/in/set-72157645643100346[/url]

[url]Http://flickr.com/photos/51253214@N04/14634395726/in/set-72157645643100346[/url]

I will ask this to be merged with original thread as there is pertinent information on it!

You need to include a rebuttal to Beavis. This is clearly pointed to in the templates.

Yes you need to write details of the unclear signage. Another of the early listed appeals has a paragraph to help with that.

I would also be inclined to find a point that rejected the commercially justifiable point. . There was definitely a recent win on this on the POPLA thread.

Dee140157

The Operator submits that the charge does in fact represent a genuine pre-estimate of loss. Alternatively, the Operator submits that if the charge is not found to be a genuine pre-estimate of loss, it is nevertheless enforceable as it is commercially justified. The Operator has submitted a number of cases in support of its submissions.

Firstly, I do not accept the Operator’s submission that the charge represents a genuine pre-estimate of loss. A detailed breakdown of each head of loss will not always be required, but the Operator must provide some explanation as to how it arrives at its final sum. The Operator has not explained in any detail how the sum of £166.01 is arrived at before it is reduced to £100. The explanation provided by the Operator also appears to include general operational costs and costs which could not possibly be incurred as a direct result of the alleged breach. Accordingly, I am not satisfied that the Operator has shown the charge of £100 is arrived at by a genuine attempt to pre-estimate its loss.

Further, 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.

In this case, it is clear that the dominant purpose of the charge is to deter vehicles from staying beyond the 90 minute limit. Accordingly, I am not satisfied that the charge can be commercially justified.

Given that the charge is not commercially justified, nor has it been shown to be a genuine pre-estimate of loss, I accept on this occasion the Appellant’s submission that it is not enforceable.

POPLA code was: 9061194515

Coupon-mad

Yep the above is included in a few paragraphs rebuttal of the Beavis case and 'commercial justification' in one of the Parking Eye template POPLA appeals so you can borrow from it. It's one of the first examples in the hyperlink 'how to win at POPLA'.

They are mentioning the Moloney QC in the case of ParkingEye v Beavis & Wardley and even saying Trading Standards agree with their "charges".

You will win, none of their protestations will help UKPC! If you look at some examples of POPLA appeals you will also find wording in the 'no GPEOL' first appeal point to state that neither the BPA nor TS nor the OfT or anyone else has 'agreed' with any ceiling/level of charge, since each one must be a GPEOL.

Crabman

Duplicate threads have been merged together