issued with a pcn at the hospital where i work

dude44

Hi Guys

I have drafted a letter chellenging the PPC, which I wish you have a look and see if its good enough for me to send to the PPC in question.

Challenge for PCN

PPC Name CHARGE ******/******,*********
CAR PARK **/**/2014, VEHICLE REG: **** ***

I am writing as the registered keeper of vehicle xxxxxxx to challenge the above ticket. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
1. No valid contract with landowner

The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the courts. It is widely known that some contracts between landowner and parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court isParking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract. In view of this, and the British Parking Association (BPA) Code of Practice section 7that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require the parking company to produce a copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company.

2. The amount demanded is not a Genuine Pre-estimate of loss

The wording on the notice appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. The PPC cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

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 ratherthan punitive.'' For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included. The Office of Fair Tradinghas 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. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.

3. Signage not sufficiently prominent nor clearly worded

Your signage is not sufficiently prominent nor clearly worded and consideration did not flow from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not your customers and are not parties of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety musthave been seen/accepted by the driver. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

As a POPLA assessor has said previously in an adjudication “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

I suggest that you cancel this unjustified 'ticket'. If not, under your Trade Body's current Code of Practice you must issue a rejection letter which, in order to answer my appeal, must include:

A. The legal basis of your charge, which is not clear (i.e. breach, trespass or contractual fee?). As keeper, I cannot be expected to guess the basis of your allegation.
(i) if alleging breach of contract, please supply a breakdown of your alleged 'loss' and state the intention of your enforcement (i.e. deterrent or revenue?).
(ii) if alleging trespass, enclose evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the landholder.
(iii) if alleging 'contractual fee' I request a VAT invoice by return and your explanation of how you can allow drivers to park 'in breach' for a fee when your client originally contracted you in order to disallow and deter - not allow and profit from - unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal). Should you try to rely uponParkingEye v Beavis & Wardley at independent appeal stage, I will of course point out that it was a flawed decision at small claim level so is not binding, and Mr Beavis is continuing his defence to the Court of Appeal. There is clearly no commercial justification for this punitive charge and no case law to support it.

B. Proof of your locus standi to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention. If you are not the landowner, I will need to see a copy of your contract, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client and the definition of your status as agents or contractors and your assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge your landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I will require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other party who is not the landowner.

C. Your explanation of the consideration that you believe flowed from the driver, and from yourselves. Consideration from both sides is required for a contract.

D. A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.

E. The means to make an appeal to POPLA or the IAS. This must not be withheld or delayed, which would be a breach of the Code of Practice.

If you fail to simply cancel the charge or supply the means to independent appeal in your first reply you will also be reported to your applicable ATA and the DVLA. A certificate of posting will be obtained for all written communications for this appeal and complaint and I intend to claim my costs when I prevail.

Yours

Registered Keeper

Dee140157

Looks comprehensive for a first stage appeal.

dude44

Hi Coupon - mad

Did you manage to have a look at my posting yesterday, a letter challenging the pcn.

Hope its fine so I can post it or it needs editing, Dee140157 said its fine.

Thanks

dude44

Hot_Bring

dude44 wrote: »

Hi Coupon - mad

Did you manage to have a look at my posting yesterday, a letter challenging the pcn.

Hope its fine so I can post it or it needs editing, Dee140157 said its fine.

Thanks

dude44

That appeal is fine. Get it sent off.

PS - Coupon Mad obviously approves as well as she's thanked Dee's post.

Hot_Bring

Revengant wrote: »

I had exactly the same and ignored all letters. After six months they stopped coming. This was now over a year ago. There are many posts on other forums that say do not contact for appeal or whatever reason the issuing company. Those who say contact them are giving very poor advice.

The next letter you get will say they have spoken with their client and have reduced the £166.00 to, let's say, £125.00. Ignore.

I know exactly what it is like when you receive one of these letters. You feel downhearted. File it away and dont read it again and get on with your life.

Utterly utterly wrong advice. I assume you'll provide the OP with the financial guarantee that you'll pay his bill if it goes to court and loses ?

Coupon-mad

Hot_Bring wrote: »

That appeal is fine. Get it sent off.

PS - Coupon Mad obviously approves as well as she's thanked Dee's post.

Wot he said! ^^ You can see I was here yesterday!

dude44

Hi Guys
Thanks for the advice and support you gave me.

I have posted the letter today, fingers crossed waiting for their response.

Once again hanks to the forum.

dude44

dude44

Hi Guys

The PPC have responded to my letter, their response is as follows;

Our ref xxxx
Date xxxx

Dear xxxx

Notice ser.xxxxx
Veh reg xxxxx
Date and time xxxxx

We write further to your correspondence received on the xxxxxx, in connection to the above PCN.

The details of this account have been forwarded to our Debt Recovery Company xxxx, as we have not received payment from you despite numerous requests.

All enquires and payments must be made directly to xxxxx.

we will not acknowledge or respond to any further correspondence.

Yous sincerely

xxxxxxxxxx

Litigation department

Telephone xxxxx



Would like some advice on the way forward from the forum.

Thanks Guys

Dude44

hoohoo

Contact aos@britishparking.co.uk

State that you have appealed on (whenever) but the PPC has ignored your appeal. Send the BPA a copy of your appeal

Dee140157

Boohoo, he missed the original appeal window.