Drafting a POPLA appeal. 'Commercially justifiable' clause. Please help!

parade

Hello! I'm new here, and I would really appreciate some guidance regarding a POPLA appeal.

I challenged an NTK from Vinci, but received a reply from Roxburghe, operating under the name paymypcn.net, rejecting the challenge.
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I also received another letter from paymypcn.net that attempts to sidestep the no-GPEOL issue by claiming that the PCN is 'commercially justifiable'. How should I address this in the POPLA appeal?
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Also, could you please comment on my current draft? Should I be using different points or different wording?

1) Vinci does not have authority to issue a demand for payment.

The Notice to Keeper from Vinci states that the charge is not a penalty or fine; yet paymypcn.net's rejection letter alleges a 'breach of the terms of conditions', as well as 'unauthorised parking event', which clearly implies a punitive fine, which contravenes common law.

In addition, Vinci is not the landowner of the site, and does not have the right to demand payment for use of this land. Vinci has not shown any evidence of a contract with the landowner (as required by AOS CoP section 7) that might permit it to do this.

2) The amount demanded by Vinci does not represent a genuine pre-estimate of loss.

In my challenge letter to Vinci, I asked for a breakdown of costs related to this alleged event. A letter from paymypcn.net, separate from the appeal rejection letter, asserts that the PCN represents a genuine pre-estimate of loss. However, this assertion is not backed up by any given facts. The letter lists a number of fixed costs of generally running a business (such as wages, POPLA membership, ADSL costs, and vehicle depreciation), which would have been incurred independently of the alleged incident in question. The letter does not provide a breakdown of costs relating specifically to the alleged incident, or attempt to show how they add up to the amount demanded.

I also note that the rejection letter mentions a 'discounted amount' that might be available should I choose not to appeal to an IAS (independently of any time-frame). However, only one amout is actually listed on the letter; presumably the 'full amount', although this is unclear. In addition, the Notice to Keeper itself, which was sent beforehand, stated that it was already too late to pay any discounted amount.

3) Vinci's conduct regarding this matter has not complied with the BPA AOS Code of Practice 2012 version 4 (February 2014).

a) The signage at the site is insufficient to comply with secions 18.2 and 18.3 of the AOS CoP, particularly with regards to the placement, prominence, and content of signs. Despite being invited to do so, the company has yet to provide evidence of adequate signage.

b) I have asked Vinci for photographic evidence of the vehicle and of any relevant signage. Vinci has provided no such images, as would be required by section 22.3 of the AOS CoP, nor has Vinci admitted the absence of evidence.

c) The rejection letter does not engage with the specifics of my challenge letter. It does not adequately explain why the appeal was rejected (as mandated by section 22.4 of the AOS CoP), and does not fully address the issues raised by my challenge.

d) The rejection letter demands payment within 14 days. This does not appear to be compliant with the AOS CoP section 22.12, which recommends giving the keeper at least 35 days to pay, from the date of the appeal rejection letter.

I would appreciate any advice you can give. Thank you very much!

ezerscrooge

This is the text that rebuts the 'commercial justification' bit....add it to the no GPEOL papargraph..

Vinci cannot claim that the charge 'commercially justified'. If Vinci cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing another PPCs effort at a loss statement that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

My case is the same and Vinci contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Vinci are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #3.

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Do post your appeal on here for others to review before sending it.

Coupon-mad

Both your draft appeal and the addition suggested by ezerscrooge should be enough to win but I would remove this:

''and they are known to be paid by their client ''

because I think that's a remnant from an Excel paragraph (not sure Vinci get paid).

oldroan

Here is a transcript of my POPLA APPEAL which I won v Parking Eye;APPEAL GRANTED ON 09/07/2014

1) Non Compliance with the Protection of Freedoms Act 2012- "The notice to driver was served via the use of ANPR. The creditor or its agent must have made an application to the DVLA for name and address NOT EARLIER THAN 28 DAYS AFTER THE VEHICLE WAS PARKED and the date of the letter of Parking Charge notice was 01/05/2014 clearly in breach of The Protection of Freedoms Act 2012; in this particular case the date alleged by the ANPR was 26/04/2014 which was NOT EARLIER than the 28 days after the vehicle was parked."

2) Parking Eye (the Parking Company) has not met the keeper liability requirements and therefore keeper liability does not apply.

"As the keeper of the vehicle, I decline, as is my right, to provide the name(s) of the driver(s) at the date and time the alleged Charge refers. As you have neither named the driver(s) nor provided any evidence as to who the drivers(s) were I submit I am not liable to any charge.

3) I submit that the parking charge amounts to a penalty and is not reasonable and / or a genuine pre-estimate of loss - and as such I believe that your parking charge cannot be upheld. I request that the company produces evidence to prove me wrong. I believe the charge to be punitive and cannot be upheld.

4) I submit that I have not entered into any contract with the Company as the registered keeper of the vehicle and the company has no contractual authority to make a claim or make payments. I am therefore not in breach of any claimed contract and liable for damages or a contractually agreed sum.

ASSESSORS DETERMINATION (VERDICT);
It is the Appellant's case that the parking charge notice was issued incorrectly.
The Operator (Parking Eye) has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were. Accordingly I have no option but to allow the appeal.
Assessor.:beer::T:)

Redx

they rarely contest these cases now with forum led appeals, hence no evidence pack put forward

suggest you post the details in the POPLA DECISIONS sticky thread (see crabmans sticky thread)

well done

parade

Thank you for your advice, my friends!

Coupon-mad

oldroan wrote: »

Here is a transcript of my POPLA APPEAL which I won v Parking Eye;APPEAL GRANTED ON 09/07/2014

1) Non Compliance with the Protection of Freedoms Act 2012- "The notice to driver was served via the use of ANPR. The creditor or its agent must have made an application to the DVLA for name and address NOT EARLIER THAN 28 DAYS AFTER THE VEHICLE WAS PARKED and the date of the letter of Parking Charge notice was 01/05/2014 clearly in breach of The Protection of Freedoms Act 2012; in this particular case the date alleged by the ANPR was 26/04/2014 which was NOT EARLIER than the 28 days after the vehicle was parked."

2) Parking Eye (the Parking Company) has not met the keeper liability requirements and therefore keeper liability does not apply.

"As the keeper of the vehicle, I decline, as is my right, to provide the name(s) of the driver(s) at the date and time the alleged Charge refers. As you have neither named the driver(s) nor provided any evidence as to who the drivers(s) were I submit I am not liable to any charge.

3) I submit that the parking charge amounts to a penalty and is not reasonable and / or a genuine pre-estimate of loss - and as such I believe that your parking charge cannot be upheld. I request that the company produces evidence to prove me wrong. I believe the charge to be punitive and cannot be upheld.

4) I submit that I have not entered into any contract with the Company as the registered keeper of the vehicle and the company has no contractual authority to make a claim or make payments. I am therefore not in breach of any claimed contract and liable for damages or a contractually agreed sum.

ASSESSORS DETERMINATION (VERDICT);
It is the Appellant's case that the parking charge notice was issued incorrectly.
The Operator (Parking Eye) has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were. Accordingly I have no option but to allow the appeal.
Assessor.:beer::T:)

Point 1 was completely wrong about the POFA deadline though. Well done anyway but this OP needs to know that's not a forum-advised POPLA appeal.