PCN Appeal rejected

Coupon-mad

I have modified my appeal. My only worry is the other points I have mentioned, which I copied from the forums, whether they are valid in my case, poor signage and the land contract law and the ANPR section etc.

No worries about the first two (include them of course) and certainly you must have 'not a genuine pre-estimate of loss' but why chose an ANPR template when yours was presumably a windscreen ticket and there are plenty of example POPLA appeals around that sort of ticket. I did say earlier:

adapted from a similar one (i.e. choose an ANPR camera version if that's what your PCN was, or chose a windscreen ticket draft template if you got a windscreen PCN at first).

cofe

Thanks for the advice.

I have modified the appeal. Hopefully this is better.

Dear Sir/Madam,
RE: POPLA XXXXXXXXXX
PCN Ticket Number : XXXXXXXXX
Date of Issue: 06-07-2014
Company : Parking and Enforcement Agency

This is my appeal as I am the driver of this car (already admitted in my appeal to the Parking Company)

1) SUMMARY OF THE INCIDENT AND BREACHES OF THE BPA CODE OF PRACTICE


The situation is that I am currently about 28 weeks pregnant (26 weeks at the time the incident took place) and was forced to stop on my way to the parking lot as I was feeling dizzy and couldn’t go on.
It was an emergency and my first priority at the time when hit by these sudden waves of dizziness was to sit somewhere safe, so I waited till the dizziness eased off, and then returned to my car when I felt well enough to drive home.

I had paid for the parking ticket till 15.11, but was issued a ticket at 15.20 and I returned to the car around 15.30. When I received the windscreen ticket for the time out, I wrote and explained my genuine emergency and also attached proof of my pregnancy by attaching the first page of my hospital note, expecting PEA to understand and cancel the charge. They refused but did not consider my appeal properly, which is a breach of the BPA Code of Practice. Their reply stated that the appeal has been rejected as a breach of the terms and conditions of parking occurred.

2) BREACH OF THE EQUALITY ACT 2010 (MATERNITY PROTECTION)


As well as the breaches of the BPA CoP I wish to point out to POPLA that in ignoring my circumstances, this Operator has breached UK maternity protection law as covered in the Equality Act 2010. The maternity section of the Equality Act makes it unlawful to harass a pregnant lady (in or out of the workplace) for any reason connected to her condition.

My emergency was completely caused by my condition, due to my stage of pregnancy. Operators - and indeed POPLA adjudicators - have to abide by UK laws, which take precedence over any 'contractual' terms & conditions (rendered null and void if the effect is to harass a pregnant lady).

I realise that POPLA cannot normally consider mitigating circumstances but in fact this 'charge' cannot be upheld by POPLA as the Operator breached the Equality Act as soon as they knew about my protected condition.

OTHER POINTS AGAINST AND IN RELATION TO THIS CHARGE


In case the adjudicator requires more information as to why this parking charge should not be paid - I have researched the matter and would like to point out the following:

3) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between PEA and myself as driver.

As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contract for me to pay this extortionate sum over and above the correct tariff already paid.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply depending upon which way up the flimsy ticket ended up on the dashboard. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) PEA have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

Also many of the machines were broken down and not working on the day.

4) CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS


PEA do not own this car park and are acting merely as agents for the
owner/occupier. In their Notice and in the rejection letters, PEA have not provided me with any evidence that it is lawfully entitled to demand money from a driver, since they do not own nor have any interest or assignment of title of the land in question.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012).

I would require POPLA to please check whether PEA have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check that it specifically enables this Operator to pursue parking charges in their own name in the court system.

Also I suggest the contract does not specify that PEA can issue charges after the shops have closed - if so on what basis, as there can have been no loss to the retailers. And POPLA should check whether that contract is compliant with the requirements set out in the BPA Code of Practice, as I allege that it is not.

6) NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS


PEA are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice as they suggest my emergency constituted a breach of contract. As such, they must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.

Since the Car park was not full and there were lots of empty spaces and no damage was caused, there can have been no loss arising from this incident. Neither can PEA lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.


In any case, no claim for loss for a 'breach of terms' can possibly apply to an 'Equality Act protected' person who has stopped in an emergency for a reason wholly caused by pregnancy. No contractual terms and conditions on a sign can be upheld if the effect is to unlawfully harass a pregnant woman.

I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking.

7) UNREASONABLE/UNFAIR TERMS


I would assert that the charge being claimed by PEA is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

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 attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the ticket in good faith. I put PEA to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the Equality Act 2010 and basic contract law. It is unfair and punitive and, as such, I respectfully request that this appeal be allowed.

Signed:

Dated:

Dee140157

Looks good to me but let C-m confirm. I love the mitigating bit! Hope they take notice for once! I doubt they will though. But they should.

Guys_Dad

Check your paragraph numbers. 5 is missing.

You should also note the POPLA view of the Equality legislation from their web site

Operators do have responsibilities under the Act, however, the Act itself specifically provides for resolution, in England and Wales, through the County Court..................
.............However, it is not for POPLA to enforce the requirements of the Act, when the Act itself clearly makes provision for this to be done elsewhere.

That is why the other points are more important and why your concentration on the Equality Act and assertion that this protects you from the charges are not recognised by POPLA.

DirectDebacle

cofe wrote: »

Thanks for the advice.

I have modified the appeal. Hopefully this is better.

Dear Sir/Madam,
RE: POPLA XXXXXXXXXX
PCN Ticket Number : XXXXXXXXX
Date of Issue: 06-07-2014
Company : Parking and Enforcement Agency

This is my appeal as I am the driver of this car (already admitted in my appeal to the Parking Company)

1) SUMMARY OF THE INCIDENT AND BREACHES OF THE BPA CODE OF PRACTICE


The situation is that I am currently about 28 weeks pregnant (26 weeks at the time the incident took place) and was forced to stop on my way to the parking lot as I was feeling dizzy and couldn’t go on.
It was an emergency and my first priority at the time when hit by these sudden waves of dizziness was to sit somewhere safe, so I waited till the dizziness eased off, and then returned to my car when I felt well enough to drive home.....

Be careful of what you put. You should be aware of this and that it is possible for a third party to do it on your behalf, so to speak.

Coupon-mad

More importantly, be careful what you put which isn't relevant! Remove these in bold!:


I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply depending upon which way up the flimsy ticket ended up on the dashboard. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) PEA have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.


and


I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the ticket in good faith.

cofe

Thanks.

I have modified it and removed the bold ones as suggested. Please advise if this is good now.

Also should I mention any lack of grace period, because they issued me with a ticket 9 minutes after the valid time?

Dear Sir/Madam,
RE: POPLA XXXXXXXXXX
PCN Ticket Number : XXXXXXXXX
Date of Issue: 06-07-2014
Company : Parking and Enforcement Agency

This is my appeal as I am the driver of this car (already admitted in my appeal to the Parking Company)

1) SUMMARY OF THE INCIDENT AND BREACHES OF THE BPA CODE OF PRACTICE

The situation is that I am currently about 28 weeks pregnant (26 weeks at the time the incident took place) and was forced to stop on my way to the parking lot as I was feeling dizzy and couldn’t go on.
It was an emergency and my first priority at the time when hit by these sudden waves of dizziness was to sit somewhere safe, so I waited till the dizziness eased off, and then returned to my car when I felt well enough to drive home.

I had paid for the parking ticket till 15.11, but was issued a ticket at 15.20 and I returned to the car around 15.30. When I received the windscreen ticket for the time out, I wrote and explained my genuine emergency and also attached proof of my pregnancy by attaching the first page of my hospital note, expecting PEA to understand and cancel the charge. They refused but did not consider my appeal properly, which is a breach of the BPA Code of Practice. Their reply stated that the appeal has been rejected as a breach of the terms and conditions of parking occurred.

2) BREACH OF THE EQUALITY ACT 2010 (MATERNITY PROTECTION)

As well as the breaches of the BPA CoP I wish to point out to POPLA that in ignoring my circumstances, this Operator has breached UK maternity protection law as covered in the Equality Act 2010. The maternity section of the Equality Act makes it unlawful to harass a pregnant lady (in or out of the workplace) for any reason connected to her condition.

My emergency was completely caused by my condition, due to my stage of pregnancy. Operators - and indeed POPLA adjudicators - have to abide by UK laws, which take precedence over any 'contractual' terms & conditions (rendered null and void if the effect is to harass a pregnant lady).

I realise that POPLA cannot normally consider mitigating circumstances but in fact this 'charge' cannot be upheld by POPLA as the Operator breached the Equality Act as soon as they knew about my protected condition.

OTHER POINTS AGAINST AND IN RELATION TO THIS CHARGE
In case the adjudicator requires more information as to why this parking charge should not be paid - I have researched the matter and would like to point out the following:

3) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between PEA and myself as driver.

As the driver I can confirm that there was no offer, consideration or acceptance flowing between this Operator and myself which could have created any contract for me to pay this extortionate sum over and above the correct tariff already paid.

I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. In breach of Appendix B (Mandatory Entrance Signs) PEA have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
Also many of the machines were broken down and not working on the day.

4) CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS

PEA do not own this car park and are acting merely as agents for the owner/occupier. In their Notice and in the rejection letters, PEA have not provided me with any evidence that it is lawfully entitled to demand money from a driver, since they do not own nor have any interest or assignment of title of the land in question.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012).

I would require POPLA to please check whether PEA have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists) and check that it specifically enables this Operator to pursue parking charges in their own name in the court system.

Also I suggest the contract does not specify that PEA can issue charges after the shops have closed - if so on what basis, as there can have been no loss to the retailers. And POPLA should check whether that contract is compliant with the requirements set out in the BPA Code of Practice, as I allege that it is not.

5) NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

PEA are clearly attempting to enforce this charge under paragraph B 19.5 of the BPA Code of Practice as they suggest my emergency constituted a breach of contract. As such, they must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss or damages in this particular car park for this particular 'contravention'.
Since the Car park was not full and there were lots of empty spaces and no damage was caused, there can have been no loss arising from this incident. Neither can PEA lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.


In any case, no claim for loss for a 'breach of terms' can possibly apply to an 'Equality Act protected' person who has stopped in an emergency for a reason wholly caused by pregnancy. No contractual terms and conditions on a sign can be upheld if the effect is to unlawfully harass a pregnant woman.

I contend there can be no loss shown whatsoever. The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking.

6) UNREASONABLE/UNFAIR TERMS

I would assert that the charge being claimed by PEA is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

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 attempt to profit by charging a disproportionate sum where no loss has been caused. I put PEA to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the Equality Act 2010 and basic contract law. It is unfair and punitive and, as such, I respectfully request that this appeal be allowed.

Signed:

Dated:

Coupon-mad

That's good to go, I would not bother with 'grace period' as a breach of the BPA CoP in itself, does not win a POPLA appeal (strangely).

Submit that online to POPLA and tick 3 out of 4 appeal reasons boxes.

prosnap

Coupon-mad wrote: »

Submit that online to POPLA and tick 3 out of 4 appeal reasons boxes.

Tick all bar the stolen car one.

cofe

Appreciate all the help, thanks a lot. Will submit the appeal today and then good luck to me!