Dandarra Lettings Manchester

wolleyowl

Thanks for template which I have amended accordingly
No appeal made at time of ticketing only on receipt of letter to RK
Bits in red added ok?
Re point 4 signage in fairness many signs around parking area and one in photo of car still ok to use?

POPLA Reference Number:
Vehicle Reg:
PPC: Vehicle Control Services Ltd.
PCN Ref:
Date of PCN: 27/04/13

I, as the registered keeper received an invoice from Care Parking requiringpayment of a charge of £100 for the alleged contravention of parking withoutdisplaying a valid permit at Spectrum phase 1 and 2, Blackfriars Road, ManchesterM3 7BT

As the registered keeper, I would like to appeal this notice on the followinggrounds:
1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Notice to Appellant
4. Unclear and Non-compliant Signage

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) ispunitive, unreasonable, exceeds an appropriate amount, and has no relationshipto the loss that would have been suffered by the Landowner / Landholder. Thekeeper declares that the charge is punitive and therefore an unenforceablepenalty.
The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for abreach of contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.


Thereby Care Parking asserts that the “charge” is actually damages to recovertheir losses through breach of contract, however not only do I contend thatthis is in fact a penalty and not a genuine pre-estimate of loss, Care Parkinghave also refused to present me with a breakdown of those losses. When I raised the question that the amount requested was neither a genuinetariff/fee nor was it based upon any genuine pre-estimate of loss they repliedthat my point “was covered in recent case law in the county courts by HHJMaloney QC this also shows that it is acceptable for parking companies to makea profit as a business”

These losses necessarily being a “pre-estimate” must by nature bealready known to Care Parking there can be no genuine reason, commercial orotherwise, for VCS to withhold or refuse to provide these on request, yet asthey have both failed and are essentially refusing to provide a breakdown oftheir pre-estimate of loss I must contend that the quoted figure of £100 cannotbe a genuine pre-estimate of loss.

I contend that the figure of £100 (reduced to £60 if paid within 14 days) infact a penalty and cannot therefore be a genuine pre-estimate of loss.


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 theywould have been in had the contract been performed. It also seems that courtshave been unwilling to allow clauses designed to deter breach as thisundermines the binding nature of the initial promise made. Whilst the courtshave reasonably moved away from a strict interpretation of what constitutes agenuine pre-estimate of loss, recognising that in complex commercial situationsan accurate pre-estimate will not always be possible, nevertheless it remainsthat a charge for damages must be compensatory in nature rather thanpunitive.''

In the 2014 Annual Report prepared bythe lead assessor, Mr Greenslade, he stated, “However, genuine pre-estimate ofloss means just that. It is an estimate of the loss which might reasonably besuffered, made before the breach occurred, rather than a calculation of theactual loss suffered made afterwards."

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

2. No authority to levy charges
A parking management company will need to have the proper legal authorisationto contract with the consumer on the landowner/landholder’s behalf and enforcefor breach of contract. Care Parking must either produce evidence todemonstrate that it is the landowner/landholder or a contract that it has theauthority of the landowner/landholder to issue charge notices at this location.I requested this information with my original appeal letter to CareParking but was informed my request was not based on fact and is incorrect
I believe there is no contract with the landowner/landholder and CareParking which entitles Care Parking to levy these charges and to pursue thesecharges in their own name as creditor in the Courts and therefore I contendthat VCS has no authority to issue charge notices.

I put Care Parking to strict proof to POPLA that they have the necessary legalauthorisation at this location and I demand that Care Parking produce to POPLAthe contemporaneous and unredacted contract between the landowner/landholderand Care Parking even if a basic contract is produced and mentions PCNs, thelack of ownership or assignment of title or interest in the land reduces anycontract to one that exists simply on an agency basis between Care Parking andthe landowner/landholder and would contain nothing that Care Parking canlawfully use in their own name as a mere agent, that could impact on a thirdparty customer.

in Care Parking's rejectionletter they state that ''within the headlease for all properties in the development it is stated that parking isoffered as long as the conditions of the current parking scheme are met, thevehicle was not parked within the conditions of the parking scheme.'' I disagreeand the head lease has not been produced as evidence - I believe there is nosuch mention of a 'current parking scheme' and put Care Parking to strict proofotherwise.

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

3. No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who “the Creditor” may be ismisleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 ofthe Protection of Freedoms Act 2012. Whilst the Notice has indicated that theoperator requires a payment to Care Parking there is no specific identificationof the Creditor who may, in law, be Care Parking or some other party. TheProtection of Freedoms Act requires a Notice to Appellant to have words to theeffect that “The Creditor is…” and the Notice does not.

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

4. Unclear and Non-compliant Signage

The driver maintains that no signs were clearly visible in either the parkingarea or the immediate area. Accordingly I contend that if there were any signspresent at the time of the alleged “breach of parking contract” then they musthave been unclear to the point that any core parking terms Care Parking arerelying on were not sufficiently clear and prominent for the driver to discernwhilst parking and that they must also fail to comply with the BPA Code ofPractice requirements. I request that POPLA must check the Operator's evidenceand signage map/photos on this point, ensuring that any photographic evidenceis taken from the position the driver would be in the parking space at the timeof alleged infringement and at a similar time of day / light level (the timeand date on the PCN is after sunset). I contend that the signs in that car park(wording, position, and clarity) do not comply and failed to properlywarn/inform the driver of the terms and any consequences for breach (as in thecase of Excel Parking Services Ltd v Martin Cutts, 2011). Terms are onlyimported into a contract if they are clear and so prominent that the party'must' have known of it and agreed.

This is a non-negotiated and totally unexpected third party 'charge' foistedupon legitimate motorists who are not Care Parking customers and are notparties of equal bargaining power, nor are they even aware that any 'contract'is possible. Therefore ALL terms are required to be so prominent and the riskof a charge so transparent that the information in its entirety must have beenseen/accepted by the driver. No reasonable person would have accepted suchonerous parking terms and I contend the extortionate charge was not 'drawn to hisattention in the most explicit way' (Lord Denning, Thornton v Shoe Lane ParkingLtd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer isbound by those terms as long as they are sufficiently brought to his noticebeforehand, but not otherwise. In {ticket cases of former times} theissue...was regarded as an offer by the company. That theory was, of course, afiction. No customer in a thousand ever read the conditions. In order to givesufficient notice, it would need to be printed in red ink with a red handpointing to it - or something equally startling.'

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

Summary

On the basis of all the points I have raised, this “charge” fails to meet thestandards set out in paragraph 19 of the BPA CoP and also fails to comply withbasic contract law.

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



Yours faithfully

Umkomaas

You need to rebut their assertion that the PE -v- Beavis judgment is 'case law': it most definitely is NOT! County Courts do not create case law.

It needs further rebuttal with the inclusion of the following:

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.''

wolleyowl

Added points raised in previous post
Are we good to go now?



POPLA Reference Number:
Vehicle Reg:
PPC: Vehicle Control Services Ltd.
PCN Ref:
Date of PCN: 27/04/13

I, as the registered keeper received an invoice from Care Parking requiringpayment of a charge of £100 for the alleged contravention of parking withoutdisplaying a valid permit at Spectrum phase 1 and 2, Blackfriars Road, ManchesterM3 7BT

As the registered keeper, I would like to appeal this notice on the followinggrounds:
1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Notice to Appellant
4. Unclear and Non-compliant Signage

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) ispunitive, unreasonable, exceeds an appropriate amount, and has no relationshipto the loss that would have been suffered by the Landowner / Landholder. Thekeeper declares that the charge is punitive and therefore an unenforceablepenalty.
The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for abreach of contract or act of trespass, this charge must be based on the genuinepre-estimate of loss that you suffer.


Thereby Care Parking asserts that the “charge” is actually damages to recovertheir losses through breach of contract, however not only do I contend thatthis is in fact a penalty and not a genuine pre-estimate of loss, Care Parkinghave also refused to present me with a breakdown of those losses. When I raised the question that the amount requested was neither a genuinetariff/fee nor was it based upon any genuine pre-estimate of loss they repliedthat my point “was covered in recent case law in the county courts by HHJMaloney QC this also shows that it is acceptable for parking companies to makea profit as a business”
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.''

These losses necessarily being a “pre-estimate” must by nature bealready known to Care Parking there can be no genuine reason, commercial orotherwise, for VCS to withhold or refuse to provide these on request, yet asthey have both failed and are essentially refusing to provide a breakdown oftheir pre-estimate of loss I must contend that the quoted figure of £100 cannotbe a genuine pre-estimate of loss.

I contend that the figure of £100 (reduced to £60 if paid within 14 days) infact a penalty and cannot therefore be a genuine pre-estimate of loss.


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 theywould have been in had the contract been performed. It also seems that courtshave been unwilling to allow clauses designed to deter breach as thisundermines the binding nature of the initial promise made. Whilst the courtshave reasonably moved away from a strict interpretation of what constitutes agenuine pre-estimate of loss, recognising that in complex commercial situationsan accurate pre-estimate will not always be possible, nevertheless it remainsthat a charge for damages must be compensatory in nature rather thanpunitive.''

In the 2014 Annual Report prepared bythe lead assessor, Mr Greenslade, he stated, “However, genuine pre-estimate ofloss means just that. It is an estimate of the loss which might reasonably besuffered, made before the breach occurred, rather than a calculation of theactual loss suffered made afterwards."

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

2. No authority to levy charges
A parking management company will need to have the proper legal authorisationto contract with the consumer on the landowner/landholder’s behalf and enforcefor breach of contract. Care Parking must either produce evidence todemonstrate that it is the landowner/landholder or a contract that it has theauthority of the landowner/landholder to issue charge notices at this location.I requested this information with my original appeal letter to CareParking but was informed my request was not based on fact and is incorrect
I believe there is no contract with the landowner/landholder and CareParking which entitles Care Parking to levy these charges and to pursue thesecharges in their own name as creditor in the Courts and therefore I contendthat VCS has no authority to issue charge notices.

I put Care Parking to strict proof to POPLA that they have the necessary legalauthorisation at this location and I demand that Care Parking produce to POPLAthe contemporaneous and unredacted contract between the landowner/landholderand Care Parking even if a basic contract is produced and mentions PCNs, thelack of ownership or assignment of title or interest in the land reduces anycontract to one that exists simply on an agency basis between Care Parking andthe landowner/landholder and would contain nothing that Care Parking canlawfully use in their own name as a mere agent, that could impact on a thirdparty customer.

in Care Parking's rejectionletter they state that ''within the headlease for all properties in the development it is stated that parking isoffered as long as the conditions of the current parking scheme are met, thevehicle was not parked within the conditions of the parking scheme.'' I disagreeand the head lease has not been produced as evidence - I believe there is nosuch mention of a 'current parking scheme' and put Care Parking to strict proofotherwise.

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

3. No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who “the Creditor” may be ismisleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 ofthe Protection of Freedoms Act 2012. Whilst the Notice has indicated that theoperator requires a payment to Care Parking there is no specific identificationof the Creditor who may, in law, be Care Parking or some other party. TheProtection of Freedoms Act requires a Notice to Appellant to have words to theeffect that “The Creditor is…” and the Notice does not.

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

4. Unclear and Non-compliant Signage

The driver maintains that no signs were clearly visible in either the parkingarea or the immediate area. Accordingly I contend that if there were any signspresent at the time of the alleged “breach of parking contract” then they musthave been unclear to the point that any core parking terms Care Parking arerelying on were not sufficiently clear and prominent for the driver to discernwhilst parking and that they must also fail to comply with the BPA Code ofPractice requirements. I request that POPLA must check the Operator's evidenceand signage map/photos on this point, ensuring that any photographic evidenceis taken from the position the driver would be in the parking space at the timeof alleged infringement and at a similar time of day / light level (the timeand date on the PCN is after sunset). I contend that the signs in that car park(wording, position, and clarity) do not comply and failed to properlywarn/inform the driver of the terms and any consequences for breach (as in thecase of Excel Parking Services Ltd v Martin Cutts, 2011). Terms are onlyimported into a contract if they are clear and so prominent that the party'must' have known of it and agreed.

This is a non-negotiated and totally unexpected third party 'charge' foistedupon legitimate motorists who are not Care Parking customers and are notparties of equal bargaining power, nor are they even aware that any 'contract'is possible. Therefore ALL terms are required to be so prominent and the riskof a charge so transparent that the information in its entirety must have beenseen/accepted by the driver. No reasonable person would have accepted suchonerous parking terms and I contend the extortionate charge was not 'drawn to hisattention in the most explicit way' (Lord Denning, Thornton v Shoe Lane ParkingLtd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer isbound by those terms as long as they are sufficiently brought to his noticebeforehand, but not otherwise. In {ticket cases of former times} theissue...was regarded as an offer by the company. That theory was, of course, afiction. No customer in a thousand ever read the conditions. In order to givesufficient notice, it would need to be printed in red ink with a red handpointing to it - or something equally startling.'

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

Summary

On the basis of all the points I have raised, this “charge” fails to meet thestandards set out in paragraph 19 of the BPA CoP and also fails to comply withbasic contract law.

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



Yours faithfully

Coupon-mad

Nearly there - but you have at least 2 x VCS left in there so it needs a proof read!

And remove all these, they are a throwback to a tired old template and aren't needed:

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

And if there was a windscreen ticket at first then it's not paragraph 9 you need to check of the POFA (it's paragraph 8) and you do need to check it for compliance or not of your PCN - not copy the things that VCS get wrong. POFA 2012 is linked in the newbies thread and paragraph 8 is nice and easy to compare to any Notice to keeper.

Umkomaas

Major copy and paste error in your appeal opening!

POPLA Reference Number:
Vehicle Reg:
PPC: Vehicle Control Services Ltd.
PCN Ref:
Date of PCN: 27/04/13

Date of PCN: 27/04/13

Is this really the date of the PCN? 16 months ago?

We really shouldn't have to be spotting these!

wolleyowl

Coupon-Mad / Umkomaas
Thanks for your reply
Cleaned everything up but struggling a little on section POFA section 8
I have been through the formal demand and they do not 1-identify who creditor is other than payment to care parking
2-No offer of discount for prompt payment only failure to provide owner/driver details or payment (£100.00) in full in 28 days £100.00. Failure to do so will see fine increase to £150.00plus further admin costs.
Should I just changes 3 in popla appeal letter from 9 (2) (h) to 8 (2) (g)
Fyi Formal demand notice to RK read as followsPlease be advised that a PCN was issue to vehicle X at X time on X date at location X for alleged contravention of invalid permit This PCN as not been paid and opportunity to pay a discount as been lost
Failure to provide owner/driver details or payment of full amount of £100.00 within 28 days of this notice will result in an increase to £150.00 plus further administrative costs. This letter will form part of our case against the driver of the vehicle
As the PCN issued to the above vehicle remained unpaid for 28 days we had reasonable cause to obtain the RK details from the DVLA to issue notice
Then goes on to give payment method / appeal procedure and section on declaration of owner/driver

The_Deep

In my opinion you are all barking mad/up the wrong tree.

Let us look at this dispassionately. A resident of a block of flats parks in their own space, a space for which they have paid. to which they have a legal right.

To deter abuse, a permit system has been set up. On one occasion the permit holder does not display a permit. A human error, but no big deal.

However, a firm of ex clampes, "Ambassadors and First aiders" want a large sum of money for an alleged breach of contract, a contract which never existed in the first place, and here you all are, wasting your time producing defences worthy of a war crimes tribunal.

This is never going to go in front of a judge, just tell Care Parking to swivel; order pizzas, taxis, glue up their front door locks, complain, whatever, but do not take them seriously.

Umkomaas

Yep, that's right TD - if the OP is content to work on those lines. And you're probably right that it won't end up in court (or if it does, should be easily and successfully defended).

However, by using this method we know almost for definite that the OP will be subjected to an elongated period of receiving debt collector letters (and possibly phone calls) all avoidable hassle, maybe for 18 months until it falls silent.

Then you need to look at the current strategies of CEL, and to a lesser extent Excel, in resurrecting old PCNs nearing the end of their 6 year shelf life, with more angst and worry for the motorists in those situations. Do you know for certain what Care Parking will be up to in 3 years time?

And who, less than 2 years ago, would have ever imagined that PE would embark on relentlessly issuing weekly blizzards of court papers, with hundreds of motorists being subjected to the roulette wheel of the small claims court. And don't forget, each and every one of these was an 'ignorer'.

Or you could knock it on the head - dead and done - with two template appeals. The fact that the OP has made a bit of a gash of copying and pasting without thoroughly reading, let alone understanding the detail has exacerbated things in this particular case.

Otherwise it would be another simple and straightforward 2-stage, pre-written process to seeing yet another poster successfully helped, with no further worries whenever the postman knocks.

You pays your money ........

The_Deep

You make a good case, but in this case, what the PPC is trying to do may be well be illegal. Attempting to interfere with a landlords of tenants' statutory rights may conflict directly with their leasehold rights, no ifs or buts.

While I agree that it expedient for a chancer who parks in a BB space, or a P&D bilker to get use a get out of jail card, this is manifestly different. And "you cannot knock it on the head" with a Popla appeal, you might win this one, cost them a bit, but they are often not very bright, and keep will probably keep up the ticketing.

This is a prima facie interference in rights to quiet enjoyment of property. TVL are forbidden on pain of legal action from harassing my tenants, why should I not advocate the same restrictions on PPCs?

.

bazster

Sometimes you have to stop being a wimp when people are out of order and just tell them to **** off. If someone walked up your driveway and put a fake parking ticket on your car would you appeal it? (Actually some people here probably would).