UKCPM - NTK appeal rejected, POPLA appeal time.

lfcdreamer

Hi,

This is only my second post here so in efforts to improve on my first I will attempt to stick to the facts.

I have a permit to park in a designated bay outside my block of flats, which costs a reasonable amount per year. The flat management company employ UKCPM to patrol.
I received a windscreen notice/charge for parking outside of designated parking bay area, issued at 23:30pm in pitch black pouring rain with patrol cars headlights to take photos.

I waited for the Notice to keeper which arrived and appealed this using advice and guidance in threads here.
This was rejected in last few days with letter received stating details shown in this pic link (I cant post full links so I hope these wil be fixed for me :-)...
hxxp://i60.tinypic.com/9uvps9.jpg

The 3 pictures the operator has used for their evidence are a picture of the permit in my windscreen, a picture of the UKCPM signs (which I will include) and a picture of the car parked in its bay.

So obviously I am struggling not to laugh that their 3 pictures are almost my perfect evidence of standard parking in my permitted bay. Anyway back to the facts.

These are the other pictures of the UKCPM sign and parking bays (bay 2 is mine). You will notice to marking on the ground for any bay along that wall.
hxxp://i62.tinypic.com/9u7xnm.jpg (UKCPM sign)
hxxp://i58.tinypic.com/fmj2i1.jpg (bays1-3)
hxxp://i62.tinypic.com/b3u1xs.jpg (bay 2 - mine)

aside from struggling to understand how a ticket can be issued in this instance I have found a template for a recent UKCPM appeal to POPLA so am using that for the basis of mine.

I will post my POPLA appeal letter so far below, essentially copied form template, and any tips, suggestions or amendments would be greatly appreciated.

Thanks

lfcdreamer

Here is my POPLA appeal letter to UKCPM, very standard so far with few changes from example UKCPM one found in the forums...

" Dear POPLA Assesor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur

1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking or parking a vehicle in an area or space that has not been designated to you may result in your vehicle receiving a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “the vehicle parked outside of a designated area” 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, a permit had been paid for and was displayed for the designated area, 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.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd 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 reasonable 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.


3) The alleged contravention did not occur.

A permit had been purchased and was displayed as evidenced by the photographs taken by the Operator giving permission for the vehicle to be parked in exactly the designated area it was parked in.

If CPM wish to rebut my challenge I put them to strict proof of the contrary of this assertion:
I assert that, on the date in question, the permit supplied by the operator was displayed in the windscreen, consequently the vehicle was parked with the permission of the Operator and therefore no breach of the parking terms occurred.

If CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld."


All help and amendments appreciated :-)

Gemlou

Looks familiar ;0) you need to change the appeal points at the top as it says point 3 signage and point 4 contravention didn't occur but in the appeal wording you have point 3 as contravention didn't occur. Best of luck with your appeal, they are the worst decision our management company ever made! Someone more experienced than me will go through the wording I'm sure.

Umkomaas

Clickies:

http://tinypic.com/view.php?pic=9u7xnm&s=8#.U81xUWK9KSM

http://tinypic.com/view.php?pic=fmj2i1&s=8#.U81yT2K9KSM

http://tinypic.com/view.php?pic=b3u1xs&s=8#.U81ylWK9KSM

lfcdreamer

Thanks for your feedback Gemlou and thanks for adding the links Umkomaas.

I have made those amendments so far, if anyone thinks I will need more in my POPLA letter please add your thoughts :-).

Thanks

Guys_Dad

You should make the appeal absolutely clear as follows

1. the keeper is the leaseholder/owner of Bay 2,
2. the vehicle in question is the leaseholder's vehicle
3. the picture shows the vehicle parked in bay 2
4. the picture shows the vehicle has the relevant permit prominently displayed.

Dee140157

You have no point about unclear signage.
The sign you show does not show it's height, is it high up or eye level? Oh wait I see it in bay 1-3 picture. How high is the wall?
Are there signs when entering car park to tell you you can't park there?
I see it is all capitals, this makes it difficult for some people to read (also akin to shouting in an email!)
How many signs are there?
The words "permits must be displayed" perhaps the most crucial piece of information for the motorist are almost the smallest words on the sign.

This is all evidence of unclear signage and should be in appeal.

lfcdreamer

Thanks for the input Guys Dad and Dee points noted.

I have another question in general which is should I be included pictures in the POPLA appeal when I submit it online...and if so should these be my pictures and/or also pictures used by Operator in their rejection of the appeal if I can get hold of them. Or do I assume POPLA can access those pictures from the original charge notice?

Thanks

Dee140157

If you feel your own would benefit your appeal yes, if not then no. And I wouldn't worry about theirs.