POPLA Appeal (Review Needed Please)

bondyy

RE: POPLA CODE- XXXXXXXXXXX

Parking Charge Number (PCN): XXXXXXXX
Vehicle Reg: XXXXXX
Operator: Nighthawk Parking (Trading name of P4Parking (UK) Ltd)

I am the keeper of the vehicle which was issued with a PCN for parking with an expired permit (equating to an overstay of 16 minutes). I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. PCN neither a genuine contractual fee nor genuine pre-estimate of loss
2. No contract assigning rights to P4Parking to enforce contracts with drivers
3. No contract formed by the signage
4. Charge non compliant to the BPA Code of Practice

1. Neither a genuine contractual fee nor genuine pre-estimate of loss

The non-compliant signage refers to a ‘ticketed excess charge’, to be issued on breach of terms/failure to comply, this incorrectly implies that this penalty is an excess charge (which it cannot be, because parking is provided free of charge to visitors of residents living at the development). This also confirms that this demand is a punitive charge, not a contractually agreed parking tariff, which bore no relationship to any loss. P4Parking cannot demonstrate any initial quantifiable loss as the parking spaces are provided free of charge. 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.

P4Parking notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. 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. P4Parking 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.

Therefore P4Parking cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that P4Parking charge the same lump sum for a 16 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear this charge is not a genuine pre-estimate of loss caused by this incident in this car park.

The Office of Fair Trading has stated to the BPA Ltd that ''a parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists''.

Neither can the charge be 'commercially justified'. POPLA Assessor Chris Adamson 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.''

I therefore require P4Parking to supply:
• A detailed breakdown of their genuine pre-estimate of loss based on 16 minutes between the expiry time on the permit and the issue time of the parking ticket.

2. No contract assigning rights to P4Parking to enforce charges in the courts or to form their own contracts with drivers

I believe that P4Parking has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. In the absence of such title, P4Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by P4Parking in their rejection statement so I have no proof that such a document is in existence. I contend that P4Parking merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing, nor authority, in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore require P4Parking to supply:

• An unredacted, contemporaneous copy of the contract between P4Parking and the landowner.

This is required so that POPLA and I can check that it allows P4Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).


3. No contract formed by the signage

I submit that this signage failed to comply with the BPA Code of Practice (CoP) section 18 and Appendix B. 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. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.

The closest sign to the entrance of the development is inadequate in size and prominence, placed high on a pole, with small text and set far back from the road. I say that in order for drivers to read this, they must park, get out of their vehicles and use a stepladder to read the sign. The sign therefore breaches Appendix B of the BPA CoP, which states ''Signs should be readable and understandable at all times...”, Appendix B also states that the terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. These signs are not legible from any position within a vehicle or when entering the development. Further, the only sign in the parking bay in which the driver parked states: the bay is for ‘temporary permit parking only’ and requests that drivers ‘please ensure permit is clearly displayed’, this sign is provided by the landowner and contains no reference to P4Parking. There is no signage clearly indicating how a driver may obtain a permit, how the permit must be displayed or what the penalties are for breaching the alleged contract (denied in this case) formed with a driver.

To breach a contract, one must have been formed in the first place. It is my submission that such a contract was not formed. At no time was it brought to the driver’s attention on any sign that they had the right to enter a contract for parking, if such a contract was intended it would have been made clear and the driver would have been afforded an opportunity to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract.

I therefore require P4Parking to supply:

• Detailed evidence demonstrating that the signage on site complies with the BPA Code of Practice, including a map of signage throughout the site, detailing the heights and sizes of said signage, and photos of signage at the entrance to the site and in the bay in which the driver parked.

4. Charge non compliant to the BPA Code of Practice

The ticket I received from P4 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, i.e., 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.


With all this in mind, I request that my appeal is upheld and for POPLA to instruct P4Parking to cancel the PCN.

Yours faithfully,


XXXXXXXXXXX

The_Deep

Surely a winner, they would be foolish to contest it.

Dee140157

Yup I think that is good to go now.

bondyy

Dee140157 wrote: »

Yup I think that is good to go now.

Thanks for taking the time to read it, it's really appreciated. Could you possibly comment on which photos I should submit (see post #11)

Dee140157

As I can't see the photos I don't know. If they back up the words of your appeal, send them, if not don't bother is the best advice I can offer.

bondyy

Thanks very much to everyone who helped me personally with my appeal in this thread or contributed to very useful stickies. I have won my appeal, details are below.

***** (Appellant)
-v-
P4 Parking also t/as Nighthawk Parking (Operator)

The Operator issued parking charge notice number ******** arising out of the presence at Royal Arsenal Roadways, on ******, of a vehicle with registration mark ******.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has determined that the appeal be allowed. The Assessor’s reasons are as set out. The Operator should now cancel the parking charge notice forthwith.

Reasons for the Assessor’s Determination

On ******** the operator’s employee issued a parking charge notice to a vehicle with registration mark ********. The operator’s employee recorded that the vehicle was parked with an expired permit on display.

The appellant made many representations; however, I shall only deal with the ground upon which the appeal is being allowed. Specifically, the appellant submitted that the charge did not represent a genuine pre-estimate of loss. The implication of this submission is that the parking charge is in fact punitive.

In order to show that the parking charge is not punitive, the parking charge should be shown to reflect a pre-estimate of the loss suffered by the operator as a result of that breach. The onus is on the operator to show this, in particular by providing a cost break down of the genuine pre-estimate of loss.

The operator rejected the representations made by the appellant. With regard to the issue of genuine pre-estimate of loss, the operator argued that the parking charge did represent a genuine pre-estimate of loss. However, no break down of how they quantified the pre-estimate of loss was provided.

Consequently I must find that the Operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss.

Accordingly, I allow the appeal.

Nadesh Karunairetnam
Assessor

bondyy

Hi all,

A brief summary of the current situation, I drive a company car:

Parking ticket issued June 24th by P4Parking.
I identified myself as the keeper of the vehicle the day after receiving the ticket to direct correspondence towards myself.
TnC sent a NtK to my company on August 29th (ignored as the appeal verdict was due)
My POPLA appeal was successful awarded on Sept 12th.
TnC sent another letter to my Fleet Department (dated Sept 19th) demanding payment blah blah blah.

Now, obviously I know there is nothing they can do, its been cancelled etc etc. However, I'd rather they stopped harassing my fleet department with these letters (which wastes their time and is also a bit embarrassing for myself).

So I'd like to know how to respond in the strongest terms to tell them to kindly FO.

I will of course also complain to the BPA, the Credit Services Association and whoever else can make their life difficult.

Any advice on the above appreciated!

Cheers

Coupon-mad

I say complain to the BPA and DVLA certainly (I don't think notiously bad 'TNC' are CSA members, you can check).

bondyy

Coupon-mad wrote: »

I say complain to the BPA and DVLA certainly (I don't think notiously bad 'TNC' are CSA members, you can check).

Thanks for the reply Coupon

Here is the complaint I've penned, might be of use to someone else. Comments welcome.

xxxxxxxxx

In response to your letters dated 19/09/2014 and 29/08/2014 (see attached).

This ticket has been successfully appealed at POPLA and cancelled (see attached).

Not only are letters threatening civil action relating to this invoice still being sent, but they are also being addressed to the registered keeper, despite me identifying myself as the keeper at the time of the alleged offence.

Neither TNC, P4Parking or any agents acting on their behalf have any lawful excuse to harass the registered keeper or I over this matter. Cease and desist with all communication to me and the registered keeper immediately, a failure to do so will result in legal action for harassment under Section 40 of The Administration of Justice Act 1970. Communication in any format is strictly forbidden as you are aware that the alleged debt is non extant.

I have complained to the BPA Ltd., the Approved Operator Scheme, the Office of Fair Trading, the Credit Services Association and all other agencies which your companies claim to be accredited by.

Remove all data held about both the registered keeper and myself, or I will also report both TNC and P4Parking to the Information Commissioner.

Coupon-mad

I would suggest a little more, and not using the word 'offence' as it isn't!:

bondyy wrote: »

xxxxxxxxx

In response to your letters dated 19/09/2014 and 29/08/2014 (see attached).

This ticket has been successfully appealed at POPLA and cancelled (see attached).

Not only are letters threatening civil action relating to this invoice still being sent, but they are also being addressed to the registered keeper, despite me identifying myself as the keeper at the time of the alleged parking incident. I would remind you that under Schedule 4 of the Protection of Freedoms Act 2012, the word 'keeper' is specifically defined and I have already clearly identified myself as that party:

{Schedule 4 of the POFA 2012} '' “keeper” means the person by whom the vehicle is kept at the time the vehicle was parked, which in the case of a registered vehicle is to be presumed, unless the contrary is proved, to be the registered keeper.''

Neither TNC, P4Parking or any agents acting on their behalf have any lawful excuse to harass the registered keeper or I over this matter. Cease and desist with all communication to me and the registered keeper immediately, a failure to do so will result in legal action for harassment under Section 40 of The Administration of Justice Act 1970. Communication in any format is strictly forbidden as you are aware that the alleged debt is non extant.

I have complained to the BPA Ltd., the Approved Operator Scheme, the Office of Fair Trading and all other agencies which your companies claim to be accredited by.

Remove all data held about both the registered keeper and myself, or I will also report both TNC and P4Parking to the Information Commissioner.

I removed the CSA as well unless you are certain those scumbags at TNC are a member?