Charges, Damages and POFA2012

bod1467

With reference to bazster's post:
https://forums.moneysavingexpert.com/discussion/comment/66024889#Comment_66024889

bazster wrote: »

Furthermore it remains my opinion that POFA 2012 Schedule 4 draws a distinction between charges and damages, with the latter being applicable (i.e. giving rise to keeper liability) only in cases of trespass i.e. keeper liability cannot arise for damages arising from breach of contract. It's the elephant in the room which hasn't been tested at either PoPLA or in a court.

So, given that all IPC members should be using a contractual charge scheme, then they should never be able to assign keeper liability?

(I created this thread to avoid hijacking that thread).

bazster

On the contrary, a genuine contractual charge works to establish keeper liability, it's the breach-of-contract model that doesn't work in my opinion.

Of course, IPC members generally do a pretty poor job of dressing up damages as a contractual charge.

I first mentioned this even before POFA 2012 went live, my suspicion being that the drafters of the law did it deliberately to mitigate the effects of parliament trashing privity of contract. Shame no-one has picked up on it and put it to the test.

Coupon-mad

Aaron Aadvark tried the argument (which I wrote for him) in a POPLA appeal as a sole appeal point but the PPC just cancelled. That was a shame.

I agree with you bazster, a 'charge in the nature of damages' can only be claimed from a keeper, if trespass or another tort arises. Breach of contract is not a tort (I checked with zzzlazyDaisy to ensure this was correct and it is).

Totally agree this is the elephant in the room but it would take some arguing in a small claim defence by a person who really had their head around POFA 2012, Schedule 4 wording (and even then a CC Judge might not like the argument!).

I am sure that's why the IPC has gone for 'contractual sum' charges and new standard IPC signage to try to get around the issue. It does mean all their members will have to account for VAT but tough!

bazster

Guess I need to get a ParkingEye ticket then and go to court! Trouble is, I don't think I could stand spending a couple of hours hanging around an Aldi car park!

bod1467

Thanks for clarifying. I misinterpreted what was being said.

gertysingh

I am ready to try this!

Coupon-mad

Good, if you get another PCN (especially from a non-litigious PPC just in case POPLA don't geddit) I can send you the appeal I wrote last time.

Dee140157

So we need a non litigious PPC. Would Athena do? Bazter would only need to hang around for 11 mins in my local lidl now!

bazster

Dee140157 wrote: »

So we need a non litigious PPC. Would Athena do? Bazter would only need to hang around for 11 mins in my local lidl now!

How so? They surely haven't got an in-and-out-in-ten-minutes rule have they?

I've got UKPC in the neighbourhood, it's residential so all I need to do is to park up, stroll into town for my shopping, and come back to my shiny new ticket!

But C-M, what operator did Aaron try it with? Not much point in doing the same one, they'll just cancel it again!

Mind you, if we establish an appeal point guaranteed to get an operator to cancel that in itself is useful information.

Dee140157

The new signs give non customers of Lidl 10 mins free parking. Only if you are a customer and give your registration at the till point when you pay for your shopping do you get the full hour! So 11 mins and it's a £90 contractual charge! (Not)

As this was previously a one hour Lidl car park which was used by lots of people to collect children from nearby primary school, pop into nearby town to bank etc, a lot of PCNs are going to be winging their way through doors in the upcoming weeks.

I am so tempted to be one of them...

atilla

bazster wrote: »

Guess I need to get a ParkingEye ticket then and go to court! Trouble is, I don't think I could stand spending a couple of hours hanging around an Aldi car park!

Way they're going it won't be long before its down to about 30 minutes