PCN from UKPS - Popla Appeal Help

eiger

Hi,

My wife received a PCN from UK Parking Solutions in the staff car park of the local college where she works (she's worked and parked there for 9 years). UKPS have only started to 'look after' the car park for a few weeks.

She was parked but didn't have her permit showing so was issued a ticket. She called the person who issued the ticket to say she was a member of staff and had a permit but he just said she'd have to pay up.

We wrote to UKPS (not having seen the threads on here) saying basically that she is a member of staff and including a copy of her parking permit and staff badge.

UKPS wrote back today and rejected our appeal so the next step is POPLA.

Obviously this is totally absurd as she has the right to park in the car park and has done so for 9 years, plus the fact that their ridiculous 'fine' is more than she would have earned for that day.

Any help or guidance you can give towards the POPLA appeal would be greatly appreciated.

Thanks

ColliesCarer

Hi eiger,
Don't worry UKPS will be easy to beat using the winning legal arguments - not the circumstances on the day which are classed as mitigation which is specifically excluded from POPLA appeals - I know madness isn't it?.

Check out the example POPLA appeals by following the link How to Win at POPLA in post #3 of the NEWBIES sticky thread - 1st thread on 1st page of this forum.

eiger

Thanks ColliesCarer

So If I write to Popla with this:


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 if a tyre was indeed over a bay line (which is denied as I am the keeper and it is up to UKCPS 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.


Is that all I need to write?

ColliesCarer

Could you just clarify the name of the parking company?
And have they actually given you a 10 digit POPLA code in their rejection letter?

Reason for the question is there are companies with similar names - one of which has joined the IPC and therefore 2nd stage appeal would be to IAS not POPLA

Is it these guys - if so these are BPA members so POPLA

T R Luckins Limited t/as UK Parking Solutions http://www.ukparkingsolution.co.uk

ColliesCarer

Bit more like this

https://forums.moneysavingexpert.com/discussion/comment/65370663#Comment_65370663

edit it to be for your PPC then post it up for comments by other forum members too

eiger

Yes that's the one UK Parking Solutions

Umkomaas

I'd be banging on the door of whoever set this lot up in the college. And it's just a foretaste of what's in store for further harassment of staff and students. The more that door is banged, the more likely it is the college will, as a minimum, put the dog on a bit of a chain.

This is all in addition to following the advice of ColliesCarer above.

PS - just noticed my reference to 'dog' - absolutely coincidental

eiger

Thanks again ColliesCarer, that's perfect.

Totally agree Umkomaas, we'll be writing to the principle. The situation at the moment is a complete (unfunny) joke.

Coupon-mad

Don't forget to change 'UKCPS' to UKPS each time in that template and to check it's all relevant. For example you cannot even include the paragraph about the NTK being flawed as you didn't wait for it, didn't get a postal Notice to Keeper - having appealed too soon for that avenue to be open to you.

eiger

Coupon-mad...you are a saviour with all this info.

Ok here's the edited version:

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 if a tyre was indeed over a bay line (which is denied as I am the keeper and it is up to UKPS 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 UKPS 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. The driver did not see any sign; there was 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
UKPS 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 UKPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPS 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 UKPS are entitled to pursue these charges in their own right.

I require UKPS 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) 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.

ColliesCarer

Hi Eiger,

That's almost there - would just suggest a few additional tweaks:

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

Delete the words I've struck out below as they don't apply to your alleged breach - i.e. not displaying a permit

Their sign states the charge is for 'not fully complying with the conditions' [STRIKE]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 if a tyre was indeed over a bay line (which is denied as I am the keeper and it is up to UKPS to show as much) there was no loss of potential income in a free car park.[/STRIKE]

And replace the 1st paragraph in point 1) with the wording in the quote box below after the heading and before the paragraph starting "The operator cannot demonstrate...

Their sign states the charge is for 'not fully complying with the conditions' and the same lump sum of £xx is sought for any alleged contravention at this location. In my case the alleged breach is for “parking without displaying a valid permit”, consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA 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.

On the day in question, the driver possessed a valid parking permit and was therefore an authorised user of the car park. In addition, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

2) Check your signage point - if it wasn't dark at the time of the alleged event alter this to be a bit more general and applicable to the relevant conditions

If you are unsure how to re-word this point you could just use the point from Coupon-mad's latest 1st appeal template letter re-worded for POPLA as follows: s

The Operator's signage was 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 the Operator's 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 must have 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.'

I put UKPS to strict proof to the contrary.

the same check needs to be done on the final paragraph of your appeal where it refers to unlit signs as well.

Also delete the part about the lie - that's specific to UKCPS

I put this Operator to strict proof to justify that their charge, under the circumstances described [STRIKE]and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, [/STRIKE]does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

Hope that helps