Care Parking

aabs

Please help !
I've just had my appeal refused by care parking for leaving a customer only car park.
The signs do state that drivers must remain on site which the driver did and I have a receipt from the store as evidence of that.
All this was supplied in my appeal but it was no surprise to receive an email stating that the issuing warden has given a statement saying that he observed the driver of the vehicle leaving the site.
Care parking have produced no evidence to support the wardens claim but ended their letter with the POPLA appeals number and stating that if this is lodged with POPLA the reduced fine of £60 would immediately become £100 + £2.50 processing fee.

I know I now have one chance to supply a very strong case to POPLA so can anyone help with a template letter for this kind of circumstance and anything else I should include.

Dee140157

First please do not hijack someone else's thread. It is difficult to reply to more than two people at one time. Please start your own thread.

In the meanwhile look at the Newbie thread and "How to win at POPLA" in post 3. You will need to include main points such as No GPEOL, inadequate signage,

When you start your own thread can you answer the following questions:

Did you appeal as keeper or as driver?

Are you able to post a copy of their car park signs as this may help with the draft of the appeal?

This seems to hinge on the observation of a very honest issuing warden who Never gets things wrong! hmmmm

Add all the information in the new thread as I am sure there is a problem with the processing fee! Someone more experienced will comment on that.

Coupon-mad

aabs wrote: »

Please help !
I've just had my appeal refused by care parking for leaving a customer only car park.
The signs do state that drivers must remain on site which the driver did and I have a receipt from the store as evidence of that.
All this was supplied in my appeal but it was no surprise to receive an email stating that the issuing warden has given a statement saying that he observed the driver of the vehicle leaving the site.
Care parking have produced no evidence to support the wardens claim but ended their letter with the POPLA appeals number and stating that if this is lodged with POPLA the reduced fine of £60 would immediately become £100 + £2.50 processing fee.

I know I now have one chance to supply a very strong case to POPLA so can anyone help with a template letter for this kind of circumstance and anything else I should include.

I'm a bit surprised - as you registered on the MSE forum 7 years ago, but maybe you hardly use the forum - that you didn't just read the sticky threads on this forum board to find the answer. As ever, this is covered in the sticky thread at the top of this parking forum - which is why I wrote it. Sadly, last year it got silly as we could not keep up with all the ''help I have got a private parking ticket, what do I do?'' threads so I wrote a sticky thread BEGGING newbies to 'please read these FAQS first'.

Some PPCs just cancel when they get sent the appeal template from the NEWBIES thread, so you missed a trick if you just talked about what happened and gave away who was driving as well. The sticky tells you how to win at POPLA...it does not involve talking about receipts and what happened!

Crabman

Posts have been split out to a new thread

aabs

Thanks Crabman,
I have been a MSE forum member a long time so im sorry if I upset anyone earlier.
Ive made a fatal mistake of being over confident on being able to contest a parking penalty myself and not reading the stickys which I knew were on here.
However im now at the point to appeal to POPLA and dont wanna make the same mistake again as this time it would be costly.

Below first is my online appeal made and then below that is the response from care parking. Hope someone can help me along here as ive trawled through thread after thread but not been able to find a letter template for POPLA which outlines my position as TBH im not sure how to word it.

ONLINE APPEAL SUBMITED
Reason :

After close examination of the photographic evidence provided by OP000065 and the contractual signage erected.

I dispute that a parking contravention had taken place and wish to appeal the parking charge notice made.

All the following conditions were met.

1) The driver of the vehicle remained on site at all times.

2) The vehicle was parked correctly within the marked bays.

3) The vehicle was not parked in a bay designated for disabled or children present.

4) The vehicle was not parked for more than 2 hours or returned within 1 Hour.

Although we did visit the store twice on 19/5/2014 this was at least 1 hour apart between visits and even parked in a different bay on our morning visit to the store.

Even though the signage doesn't state that a purchase is necessary to qualify as a customer. Please find provided a receipt for the purchase made during the visit to the range store as evidence that the charge of £100 plus a £2.50 processing fee imposed is excessive and doesn't demonstrate a loss of income to the store or a potential loss to the landowner.

As I am still confused how this parking charge notice is valid.

In the event that this appeal is rejected please supply the following information.

1) Details of the contravention which is have taken place.

2) The grounds on which the penalty charge is enforceable.

3) A breakdown on how the figure of £100 charge is reached.

3) A POPLA appeals number.

REJECTION EMAIL

Your appeal against the Parking Charge Notice (PCN) issued on 19 May 14 at Chalon Way Retail Park for the alleged contravention of Abused Patron Parking has been considered by our appeals team, having reviewed the evidence and the details supplied by yourself your appeal has been rejected.

Your appeal has been rejected for the following reasons:

 On 19 May 14 at 13:28 this vehicle, Registration ??????? was parked at Chalon Way Retail Park and the driver of this vehicle was observed leaving the site.

 When parking at Chalon Way Retail Park the driver of this vehicle agreed to pay a Parking Charge of £100 if they did not park in accordance with the terms printed on the contractual warning signs.

 The contractual warning signs in place state: Customer only car park, you must remain on site at all times your vehicle remains in the car park. Your vehicle was parked in contravention of this term of the contractual warning signs.

 The operative on duty observed your vehicle parking in the location and then witnessed the driver leaving the site.

 This car park is only free to members of the public who are patrons of the stores on site for the duration they remain on site. At the time your vehicle was issued with a charge the driver was not present on site so therefore not a patron of the store.

 There are in excess of 40 contractual warning signs stating the terms and conditions for parking at this location, these are displayed at regular intervals around the car park.

 Our operative observed the driver of this vehicle park on site before exiting the site, a direct contravention of the contractual warning signs.

 The operatives on duty have filed a full witness statement confirming their observations in relation to this PCN.

 The signage on site which you acknowledge within your appeal forms the basis of a contract, this charge is enforceable under contract law.

 The charge is a contractual charge and the breakdown of this charge is commercial in confidence and will only be released to a court as necessary, there are no legal grounds to have to release this information to you at this stage.

 The charge is not a penalty as you state in your appeal, it is a contractual sum charged for failing to adhere to the parking conditions.

Photographic evidence supporting the issue of this PCN can be viewed by following the link and entering your vehicle registration and PCN reference number;
http://pay.careparking.co.uk. Copies of these photographs are available on request.

As you appealed within the 14 day discounted period the parking charge amount has remained at the reduced payment amount of £60, the amount due will remain at the discounted rate for a further 14 days from the day after the date of this letter. After the 14 days the full amount will be due and payable.

This decision is final and no further communication will be accepted by Care Parking with regard to this appeal, therefore you are requested to now submit your payment of the monies owing.

You now have a number of options from which to choose:

1. Pay the parking charge.

2. Make an appeal to POPLA – The Independent Appeals Service by making your appeal online at
www.popla.org.uk.

a. Your POPLA verification code is:
[FONT=Tahoma,Tahoma][FONT=Tahoma,Tahoma]0???6????[/FONT][/FONT]. Please be advised that if you opt for independent arbitration of your case, the ability to pay the parking charge at the reduced rate of £60 will immediately end. If you opt to pay the parking charge you will be unable to appeal to POPLA.

3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.

This letter and all other correspondence received in relation to this PCN may be used to form part of our case for court action if necessary.

Yours sincerely,

aabs

Before I submit my POPLA appeal for allegedly parking my vehicle in a customer only car park and leaving site, can someone please give thumbs up or down as I have drafted this from a template CM kindly provided. If their is anything more I need to add such as photographs or anything that needs to be removed please advise as I must admit i do not fully understand section 4 and if it should be left in the appeal.

Dear POPLA,
I am the registered keeper of ?????? and I wish to appeal the decision reached by Care Parking on PCN??????

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 even if the driver of the vehicle left the site (which is denied as I am the keeper and it is up to Care Parking 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.

2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put Care Parking to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. Care Parking state that over 40 signs are erected at this location but the wording is inconsistent causing confusing so that no consideration/acceptance and no contract agreed between the parties.

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, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

3) Lack of standing/authority from landowner
Care Parking 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 Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking 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 Care Parking are entitled to pursue these charges in their own right.

I require Care Parking 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 paymentand 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.

An unlit sign of terms placed to high to read, 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 on unlit signs 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.

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

Further information can be seen HERE

Dee140157

It would be easier if you had posted this on you original thread so that we can see everything together.

In any no GPEOL argument it is worth considering putting in this

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis 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:

''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.''

This was recently suggested by C-M as extra wording whilst waiting for this case to go to appeal.

I am still not fully expert at reading POPLA appeals, but looks ok. However wait for other more expert advice.

aabs

Thanks for your comments Dee. Should I supply any photographs with my POPLA appeal?

HO87

As CP have made it clear that the purported driver of the vehicle was observed to leave the car park I would add the following:

As the operator alleges that a member of their staff observed the driver of the vehicle leaving the car then I ask that the assessor puts them to strict proof as to:
a. The adequacy and contemporaneous nature of the notes that member of staff intends to rely upon.
b. The distance the observations were made over, a description of the lighting conditions and details of how crowded or otherwise the area was and a detailed description of the driver.
c. Details of any aid to vision the staff member used (binoculars etc) and what authorisation they had for their use within the terms of the Regulation of Investigatory Powers Act together with details of the reviews of such authorisations from their instigation up to the point of the alleged observation.
d. Whether any notes were made as the result of direct observation or as a result of contemporaneous viewing of CCTV images and if the latter the assessor is asked to require production of those images.
e. Given the operator's requirement to, at all times, minimise their losses what steps the member of staff took at the time to minimise those losses.

Hope that helps.

The_Deep

So, the PPC are calling you a liar. I would not have this and cease all further contact with them. Let them put their man in court and see whom the Judge believes

aabs

That's brilliant, thank you so much for the help everyone.
I have placed HO87's comments as the second paragraph on point one now.
If I don't need to supply any photos and the guru's think that im good to go I will file my appeal as set out.

Fingers crossed.