Care Parking

Dee140157

If your photos back up your evidence you can add, but since the onus is on them to prove compliant signage don't panic if you can't. If the photos prove something different then definitely include them. I hope that makes sense.
Otherwise I think good to go.

Of course The Deep's option of waiting for them to take you to court (I.e.not filing a POPLA claim) is another approach you could take, but you would be braver than me! I do however get the point that they have called you a liar and so someone more litigious might want to face them down on this. I am sure you would need support if you chose that route!

ColliesCarer

Care appear to claiming the charge is a contractual sum.
Your appeal may need strengthening to challenge that.

We need to see the wording on their signs and on the NtK to be sure and to best advise but if you are short on time I suggest you add an additional point before your Not a GPEOL as follows in the quote box which will cover that issue.

x) This charge is not a contractually agreed sum – it is a disguised breach

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely and assert that it is in fact a disguised breach of contract which should therefore be deemed to be an unenforceable penalty unless it can be shown to be a genuine pre estimate of loss.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers, a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages.

I would like to highlight that in another similar appeal with similarly misleading signage, POPLA Assessor Marina Kapour found that:

“The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.''

My case is similar and it is clear that this is not an offer for non-customers to park for a fee. The true and predominant purpose of the alleged 'parking operation' at this location is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty ) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

I contend the charge is neither a contractually agreed sum nor a genuine pre estimate of loss but is in fact an unenforceable penalty and consequently I believe my appeal should be upheld.

aabs

click here
and here

Thanks for noticing a potential problem before I submitted.

Still got a little time before I submit.

I think that I have learnt a lesson expecting my appeal to C P to be accepted

Please take a look at the snaps and let me know how best to tackle it.

Thanks to all for the valuable help been offered

aabs

How is this looking now?
I'm concerned its getting a little to long or is my concern unfounded ?

Dear POPLA,
I am the registered keeper of ?????? and I wish to appeal the decision reached by Care Parking on PCN000?????

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.

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.
f. This charge is not a contractually agreed sum – it is a disguised breach
In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely and assert that it is in fact a disguised breach of contract which should therefore be deemed to be an unenforceable penalty unless it can be shown to be a genuine pre estimate of loss.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers, a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages.

I would like to highlight that in another similar appeal with similarly misleading signage, POPLA Assessor Marina Kapour found that:

“The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking - as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the maximum permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay, provided he or she pay the charge. Clearly, permission to park ‘in breach’ is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge, and so it cannot be consideration.''

My case is similar and it is clear that this is not an offer for non-customers to park for a fee. The true and predominant purpose of the alleged 'parking operation' at this location is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty ) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

I contend the charge is neither a contractually agreed sum nor a genuine pre estimate of loss but is in fact an unenforceable penalty and consequently I believe my appeal should be upheld.

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 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.

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.

Yours Faithfully,

ColliesCarer

Thanks for the pics - you should be ok as they clearly state "Failure to comply" and therefore a no GPEOL point definitely applies.

But as they have stated their rejection letter that the "Charge is a contractual sum" it's safest to ensure you rebut that, but you won't need all of wording I previously supplied and can deal with it by amending point 1) as follows:

1) The Charge is not a genuine pre-estimate of loss

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for 'Failure to comply" with the parking conditions i.e. breach of terms, 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.

....... Followed by the remainder of point 1) and the rest of your appeal as it is ..........

ColliesCarer

Apologies my previous post crossed with yours - was drafting a response and hadn't noticed your additional post

HO's advice doesn't really fit in the No GPEOL point - would suggest including it as an additional point.

Would also suggest including all headings as numbered list following the opening sentence.
Here's my suggestion - to avoid any confusion I've included the whole of your 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
2) Lack of signage - no contract with driver
3) Lack of standing/authority from landowner
4) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
5) Unreasonable/Unfair Terms
6) Witness Evidence on which they base their allegation


1) The Charge is not a genuine pre-estimate of loss

In their rejection letter, Care Parking appear to be asserting that their charge is a contractually agreed sum, I refute this entirely.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs to non-customers and a payment mechanism would have been provided on-site. In addition a VAT invoice would have been provided. I have no evidence that this business operation on this car park has been registered for business rates and a VAT invoice has not been supplied.

This is a free customer only car park, there is no mechanism for non-customers to pay for parking and in fact parking other than by customers is specifically disallowed. Clearly permission to park ‘in breach’ can not be granted, and so I contend the parking charge cannot be a contractual price but is in fact a sum sought as damages for breach.

Their sign clearly states the charge is for 'Failure to comply" with the parking conditions i.e. breach of terms, 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.

6) Witness Evidence on which they base their allegation

I refute entirely the operator's allegation that a member of their staff observed the driver of the vehicle leaving the car park and 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.

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

Yours Faithfully,

aabs

ColliesCarer wrote: »

Apologies my previous post crossed with yours - was drafting a response and hadn't noticed your additional post

No apology needed and a big thank you for the time and effort you have been kind enough to give.

I was worried that my draft was growing out of control but now it looks structured again and well written.

I must extend my thanks to all the other good members of the forum and the help given by all.

Fingers crossed :beer:

The_Deep

They have called you a liar. Are you going to ignore that? I would raise this again with them. Threatening them with defamation unless they apologise.

bazster

You can't defame someone in private, it's only defamation if the defamer communicates it to a third party.

In this instance the recipient of the PPC's communications has chosen to make them public, not the sender, so the sender can't be accused of defamation.

HoofeHearted

You were on "The Range" car park in St Helens. Am I right?

In future, boycott the store, like lots of others are doing.:money: