PCN from UKPS - Popla Appeal Help

Coupon-mad

Yep, definitely remove the bit at the end about the lie about the stolen car! Good points well made by ColliesCarer. Here's one I wrote earlier if you want to beef up your unfair terms' point and your 'signage' point:

https://forums.moneysavingexpert.com/discussion/comment/65951653#Comment_65951653

You can plagiarise that as much as you like if you've not submitted the appeal yet. The ANPR camera paragraph isn't relevant to a windscreen PCN of course.

eiger

Thanks again, here is the edited version, I think it's ready to go:

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

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.

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

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.

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 not sufficiently prominent nor clearly worded 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 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.

Redx

I would add a short opening paragraph including numbered bullet points, then your main appeal in the last post just below the numbered bullet points, so its easy for the assessor to check what grounds you are appealing on and which section they are in

like here https://forums.moneysavingexpert.com/discussion/5005310

eiger

Thanks Redx, just re-posting edited version to help others:

Dear POPLA

Address
My Details
Ref.
Issued.
Reg.
Todays Date

I am the registered keeper and I wish to appeal against Parking Charge Notice xxxxxx issued by UK Parking Solutions (UKPS).

My appeal points, details of which follow, are:

1. Not a genuine pre-estimate of loss
2. Non-compliant signage - no contract with driver
3. No legal standing/authority
4. Unreasonable/Unfair terms


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

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.

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

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.

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.

A not sufficiently prominent nor clearly worded 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 not sufficiently prominent nor clearly worded 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 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.

jamin008

posted in error

DWS1

I have had recent unfortunate dealings with this company, they refused my appeal, which was flagrant entrapment by displaying their signs the wrong way, which was then upheld by the independent appeals service, who dealt with my appeal very quickly, however I am still awaiting a refund which is ironic as they threaten escalation of action within a month, including removal of a 14 day discount, but can take weeks to refund your money. This company is everything you read about and see on TV, so I would thoroughly recommend you use the IAS, if you google it. Their initial inhouse refusal of my appeal is clearly a standard refusal letter they use, as it contained factual errors when justifying the charge still applied, so go ahead and appeal.apparently 50% of appeals are upheld. Good luck

Dee140157

It's kind of you to post here, but there is no need to google IAS if you are on this forum. All the information you need to win an appeal for that is in post 3 of the newbie thread. The best advice you can get.

eiger

Just wanted to update this thread with the great news that our appeal was successful.....YES.

Huge thanks to ColliesCarer, Redx, Coupon-mad
and Umkomaas (and everyone else that contributes here) for their help with the appeal.

summerdownsouth

Fab news, I have been following this thread as I suspect I am currently contesting a ticket from the same College car park ;-)
I have also been keeping an eye on the said car park and currently all parking restrictions are removed....although that may change next week with beginning of new term, will be interesting to see,.....