Newbie needs help with popla

johnstons

Hi all

I received a PCN from G24 the other day, I have already sent in
my soft appeal and of course it got rejected.

This is the e-mail I received.

Dear Mrs xxxxx

RE: Contractual Parking Charge Notice xxxxx

Thank you for your email.

Our claim is not based on trespass, but on a breach of contract.

We have taken legal advice and we have been advised that not only can our parking charges be justified on the basis that they amount to a genuine pre-estimate of loss but are likely to amount to "liquidated damages". This is because the Court's position is that where the parties to a contract agree to fix the amount which is to be paid by way of damages in the event of a breach of contract - which is the basis of the contract detailed on our signage - a sum stipulated in this way (particularly in circumstances where there is difficulty in calculating a precise estimation) is likely to be classed as liquidated damages. Either way, our parking charges are fully enforceable and do not amount to a "penalty". You should also be aware that in accordance with the case of Robophone Facilities v Blank the onus of proving that an amount claimed is a penalty, rather than liquidated damages, is upon you (as the party against whom the parking charge is claimed).

We confirm that it is not necessary for us to provide you with a breakdown of our parking charges at this time. That information is confidential, but is available and will be provided to the Court in the course of Court proceedings, if necessary, and if payment has not been made before then.

We manage the car park on behalf of our client - and our client is not involved with the issue nor enforcement of our Notices to Keeper.

There are sufficient signs at the entrance to and in prominent locations throughout the car park displaying the terms and conditions. Your are welcome to revisit the site to view the signage, we advise you to adhere to the terms and conditions of parking when visit the site.
Our signage complies with the British Parking Association's requirements.

This is not applicable, as our Contractual Parking Charge Notice is based on a breach of the terms and conditions of parking as advertised on signage displayed throughout the car park, not trespass.

You now have one of the following options available to you:

1. Pay the outstanding Parking Charge. Payment of your Contractual Parking Charge Notice can be made via the payment line: 0845 452 7777 or by sending a cheque or postal order to G24 Limited, PO Box 3320, Gerrards Cross, Buckinghamshire, SL9 8WT.

2. Make an appeal to POPLA within 28 days - The Independent Appeals Service by completing the accompanying form or by making your appeal online at POPLA your POPLA verification code is: xxxxxxxx. Please be advised that if you opt for independent arbitration of your case, the ability to pay the parking charge at the reduced rate of £60.00 will be at end. If you opt to pay the parking charge you will be unable to appeal to POPLA.

3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.

4. Supply copies of your receipts for the day in question or your bank statement with your private details erased showing the transaction(s) on our client's site within 14 days. Please do not send in original documents as they will not be returned.

Customer Services
G24 Ltd

Now I have copied an paste the newbie #3 replacing the company name is this correct?

Dear POPLA,
I am the registered keeper & this is my appeal:
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 G24 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 G24 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
G24 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 G24 to strict proof of the contract terms with the actual landowner (not a lessee or agent). G24 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 G24 are entitled to pursue these charges in their own right.
I require G24 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) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.
Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt paymentand the arrangements for the resolution of disputes or complaints that are available'
The NTK is a nullity so no keeper liability exists.
5) 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

Is this the correct appeal to send to POPLA

Any help would be greatly appreciated.
Thanks

gertysingh

Well J - it looks like you have the right template, though:
1.Would be easier to read if you added a little bit of formatting as it looks like a blob of text.
2. I scanned your popal appeal. Seems a little confused as to what the driver has actually purported to have done....tyre over the white line? or overstayed?

P.S. Sounds like the PPC are telling you nonsense in order to justify their charge further down the line.

gertysingh

P2.S. An initial summary of the points you are trying to highlight would be a good thing to add into your appeal.

Coupon-mad

Looks great and all relevant as long as it was dark when the driver parked and as long as it was a windscreen ticket for parking over bay lines.

Dee140157

Bu just to check, have you actually taken legal advice? If you are referring to this forum, this is not legal advice, just experienced advice.

johnstons

Think I need to go back to the drawing board, as it was in the day and the issue
Was the driver overstayed!

Will have to look at some more forum see if I can see one
That applies to my situation. Will post my revised appeal

Thanks

Dee140157

Suggest you look at the Athena appeal in the templates as this refers to contractual charge, which is what you supposedly are in breach of.

Guys_Dad

When you finalise your appeal, look at the layout (not necessarily the wording) of the appeal in post #1 here https://forums.moneysavingexpert.com/discussion/5017565

Coupon-mad

johnstons wrote: »

Think I need to go back to the drawing board, as it was in the day and the issue
Was the driver overstayed!

Will have to look at some more forum see if I can see one
That applies to my situation. Will post my revised appeal

Thanks

Why don't you just search this forum for 'G24 POPLA' and find a recent one? You don't actually need to use an Athena one, since despite the name of the Notice G24 don't use a complicated 'contractual fee' model and it is EASY to beat them!

You could also use any 'ANPR Camera' template from the NEWBIES thread - you just picked one that was about a windscreen ticket for some reason. There are LOADS of ANPR examples there, such as re Highview, Excel and ParkingEye. All very useable for a G24 postal PCN.

Always makes me laugh when people try to use a template with 'in the dark' in the wording and then when it's pointed out it turns out their case was in daylight! You are the fourth person this week I have spotted trying to use a 'dark' template without proof-reading it! It is up to you to read every word.

johnstons

Okay have had a look at some similar thread and this one seem to
have the same points

Overstayed during the day.
Claim is not based on trespass, but on a breach of contract.

Re: G24 PCN, reference code: *********
POPLA Code: *******

1) No genuine pre-estimate of loss
2) No standing or authority to pursue charges nor form contracts with drivers
3) The signage was not readable so there was no valid contract formed
4) The ANPR system is unreliable and neither synchronised nor accurate
5) Unreasonable/unfair terms

1) No 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 the fact that the vehicle was parked for an period of time over the maximum time period (which is denied as I am the keeper and it is up to G24 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.

The G24 Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shop if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park was approximately half full on arrival and almost empty when the driver left.
The fact that the Occupants of the car purchased items from the shop during their stay, questions if rather than a loss being made as indicated by G24, that in actual fact the shop sport direct actually made a profit from the occupants having parked in their store car park.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that G24 charge the same lump sum for a 10 minute overstay as they would for 3 hours, and the same fixed charge applies to any alleged contravention (whether serious/damaging or trifling), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

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. G24 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 rather than punitive.''

2) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, G24 must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that G24 merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put G24 to strict proof to provide POPLA and myself with an unreacted, contemporaneous copy of the contract between G24 and the landowner. This is required so that POPLA and myself can check that it allows this Operator to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.).

3) The signage was inadequate so there was no valid contract formed between G24 and the driver
The occupants of the vehicle state that there was inadequate signage on behalf of the Operator. The BPA code of practice February 2014 clearly states that "Specific parking terms signage must tell drivers what their terms and conditions are, including their parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".
The occupants having entered the car park, and subsequently parked the vehicle within the car park, in question, they did not notice or were made aware of any of the Operator’s signage. It is stated after the event that in actual fact signs are placed to high and are illegible, I put G24 to strict proof otherwise; as well as a site map they must show photos of the placement of the signs, the wording and show measured mounting heights of the signs as well as measured heights of text. One can only surmise from this that the Operator’s signage is, quite clearly, inadequate - as the signs fail to properly warn/inform drivers of the terms and any consequences for breach.

Appendix B of the BPA COP 2014 states that“ The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead”.
Therefore nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

4) The ANPR system is unreliable and neither synchronised nor accurate
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the BPA Code of Practice and to have signs stating how the data will be stored/used. I say that G24 have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. If there was such a sign at all then it was not prominent, since the driver did not see it. I have also seen no evidence that they have complied with the other requirements in that section of the code in terms of ANPR logs and maintenance and I put this Operator to strict proof of full ANPR compliance.
In addition, the BPA Code Of Practice contains the following:
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.''

G24 fail to operate the system in a 'reasonable, consistent and transparent manner'. As G24 place signs too high to see on arrival, there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

In addition I question the entire reliability of the system. I require that G24 present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.
So, in addition to showing their maintenance records, I require G24 to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. As their whole charge rests upon two timed photos, I put G24 to strict proof to the contrary and to show how these camera timings are synchronise.

5) 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 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 signs placed too high 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.


I request that my appeal is allowed.

Yours faithfully,

thanks

Coupon-mad

Much better - they now have no chance (remove the red highlights from your search though before submitting it online to POPLA)! Tick 3 out of 4 appeal reasons and away you go.