"Soft" appeal advice, UKPC, Riverside, Warrington

robod

I've updated my appeal with what I though are relevant bits related to Parking Eye v Beavis. Does this link parking-prankster.blogspot.co.uk/2014_07_01_archive.html published by Parking Prankster on the 16th change anything? Seems like "Beavis" was used successfully in court. Mr T probably should have been better prepared. Thankfully I'm not in Cambridge.

I've also added several statements in paragraph 2).

Would you guys be able to quickly check this to make sure I've correctly included everything I should have included and haven't made any stupid mistakes?


Dear POPLA,

I am the registered keeper of vehicle reg XXXXXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:


[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]Neither is this charge 'commercially justified'. In answer to th[FONT=Times New Roman, serif]e[/FONT][FONT=Times New Roman, serif] proposition from [/FONT][FONT=Times New Roman, serif]the Operator[/FONT][FONT=Times New Roman, serif] which [/FONT][FONT=Times New Roman, serif]they[/FONT][FONT=Times New Roman, serif]cite[/FONT][FONT=Times New Roman, serif] the [/FONT][FONT=Times New Roman, serif]ParkingEye v Beavis [/FONT][FONT=Times New Roman, serif]& Wardley[/FONT][FONT=Times New Roman, serif] small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

[/FONT][FONT=Times New Roman, serif]''In each case that I have seen from the higher courts,...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.''[/FONT][FONT=Times New Roman, serif]
[/FONT]
[/FONT]

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


[FONT=Times New Roman, serif]- The signs at the entrance [/FONT][FONT=Times New Roman, serif]are often obstructed by cars ahead, aren't sufficiently prominent to create any contract (non-compliance with BPA CoP [/FONT][FONT=Times New Roman, serif]paragraph[/FONT][FONT=Times New Roman, serif] 18 [/FONT][FONT=Times New Roman, serif]and Appendix B[/FONT][FONT=Times New Roman, serif]), and aren't compliant with the ICO CCTV Code of Practice[/FONT] which makes them non-compliant with BPA CoP paragraph 21.4. Please see exhibits 1 and 2.

- The only sign present in the area where the car was parked is completely obscured by vegetation from the point where the car was parked. It is possible to leave the car and walk to the shops without seeing any signs. This is, again, non-compliant with BPA CoP paragraph 18.3. Please see exhibits 3 and 4.

- None of the signs on the site warns about the usage of ANPR system. The signs mention CCTV system which doesn't necessarily mean ANPR is used as well. This is non-compliant with BPA CoP paragraph 21.1. In addition the signs do not comply with at least paragraph 18.7 as well as both contact numbers are premium-rate numbers charged at 10p per minute. Please see exhibit 5.

In summary the signs are not sufficiently prominent to create a contract and do not comply with several paragraphs of BPA Code of Practice.

[FONT=Times New Roman, serif]3)Flawed contract with landowner/Authority to issue PCN's[/FONT]

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


[FONT=Times New Roman, serif]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]I therefore respectfully request that my appeal is upheld and the charge is dismissed. [/FONT]

Coupon-mad

That's fine - in fact the penultimate line could even be a point#5 in its own right and add a bit:


5) No consideration flowed from both parties - so no contract was formed
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. I would also contend there was no consideration from UKPC either as the parking spaces are already offered free by the Retail Park on their website and advertising flyers, so an agent cannot 're-offer' the same spaces on more onerous terms.

robod

Thanks Coupon-mad. I will make the last paragraph a separate point #5.
However, I'm not sure about the last sentence. The only information produced by the owner I found is this: pradera.com/property-portfolio/united-kingdom/riverside-retail-park and they don't mention free car park. So, I'm not sure If I can use that sentence. Have you found any other website stating that or is it just a generic sentence?

Thanks a lot.

Coupon-mad

Maybe just change it to 'retail websites' rather than 'their website' but certainly leave something about it in:


http://www.visitnorthwest.com/malls/riverside-retail-park/

'free car parking is available'


http://en.parkopedia.co.uk/free/warrington/parking/

Customers only.
Mon-Sun 24 hours Free / day

robod

OK. Thanks.
I'm going to submit it on the website. Fingers crossed.
I will report to the POPLA thread once I get a reply.