So confused reg POPLA. PLS HELP

Dee140157

As Redx says the blue words ",How to win at POPLA" in post 3 of the a newbie thread will take you to various templates.

There is one there written especially for Civil Enforcement, so I would use that as a basis of your appeal. However you will need to change the signage paragraph as presumably the conditions were not the same. However as Bazter pointed out the sign clearly states that only a Heron customers are allowed 45 minutes. If you do not shop in Heron, then it does not say how long you are allowed! So definitely unclear terms on the sign.

sd.

Thanks guys.

sd.

Here goes.




Dear POPLA,


As the registered keeper, I would like to appeal this notice on the following grounds:

1. The Charge is not a genuine pre-estimate of loss
2. No standing to pursue charges in the courts nor to make contracts with drivers
3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012
4. Misleading Signs, not compliant with the BPA code of practice and no contract with driver. 5.Unreasonable & Unfair Charge - a penalty that cannot be recovered
6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs

1. The Charge is not a genuine pre-estimate of loss




The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner.


I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. The Notice to Keeper letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses resulting 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 by a driver who was fully authorised to be parked at that site. The mere 18 minutes of additional parking time simply cannot have resulted in losses amounting to £100.


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. CEL 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 PPC in relation to the decision made in ParkingEye v Beavis (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”.
Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."


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.''

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 by a driver who was fully authorised to be parked at that site and certainly not to the extent of this fine.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed. The 18 minutes did not cause Heron Foods such a large loss of revenue and as such is not a justifiable charge. The 18 minutes of additional parking did not lead to £100 loss for Heron foods.


2. No standing to pursue charges in the courts nor to make contracts with drivers



CEL have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put Civil Enforcement to strict proof of the above in the form of their contract. Even if a basic site agreement is produced and mentions PCNs, 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 CEL and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not a managing agent nor retailer nor any facility on site which is not the landholder - and the contract must comply with paragraph 7 of the BPA CoP. Such a contract must show that this contravention can result in this charge at this car park and that CEL can form contracts with drivers in their own right and have the assignment of rights to enforce the matter in court in their name. A witness statement or site agreement will not suffice as evidence as these are generally pre-signed photocopies wholly unrelated to the contract detail and signed off by a person who may never have seen the contract at all. I insist that the whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged, and to see all terms and conditions, restrictions, charges, grace period and the locus standi of this operator.

3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012




The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed).
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability. Consequently, the very basis of the fine is unfounded.




4. Misleading Signs, not compliant with the BPA code of practice and no contract with driver.



Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The terms are misleading.


There was no agreement to pay. Consideration was not agreed upon by both parties and as a fundamental part of the formation of the contract, it is evident that subsequently no contract was formed between both parties. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of CEL. It would be necessary for any signs at the entrance to be so prominent that the terms must have been seen or accepted by the driver. That is not the case – the notice displayed within the car park would be a struggle to read from a moving car, particularly due to the terms and conditions being stated in far smaller font than would be reasonably expected to have been read clearly.


The BPA CoP at Appendix B sets out strict requirements for entrance signage, including “The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead”. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

In addition, the signage for the terms & charges are in a particularly small font compared with the offer to park for 45 minutes for free. There is also no mention of what the ANPR data will be used for. The sign was purposefully unclear and did not provide a fair and clear offer for the customer. Moreover, the entrance warning sign is particularly vague and evasive (see attached).




No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'



5. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered




The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.

This charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
‘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.’

In the Unfair Terms in Consumer Contracts Regulations 1999:-
''5.—(1) 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 Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens
''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

It has recently been found by a Senior Judge in the appeal that CEL's signs are not clear and transparent and their charges represent a penalty which is not recoverable. This was in 21/02/2014 (original case at Watford court): 3YK50188 (AP476) CIVIL ENFORCEMENT v McCafferty on Appeal at Luton County Court. I contend that this charge is also not a recoverable sum.




6. ANPR clock/synchronisation/reliability/data handling/ICO rules on ANPR signs


Because this Operator is actually trying to allege an exact time. I call into question the ANPR system accuracy. The time shown for first arrival at the entrance is just after 12:56pm and the whole contravention seems to hinge upon the accuracy of this clock. This would require an ANPR system with almost perfect manufacturer-stated accuracy which I contend is not the case.

So I require CEL to present records which prove:
- the Manufacturers' stated % reliability of the exact ANPR system used here.
- 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 images supporting to show my vehicle entering and exiting at specific times. CEL must show their ANPR system has a zero failure rate and zero buffering delay. I suggest that in the case of my vehicle arriving at 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 every time stamped accurately.

BPA CoP paragraph 21 'Automatic number plate recognition' (ANPR):
''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.''

CEL fail to operate the system in a 'reasonable, consistent and transparent manner'. There is no signage at the entrance to 'inform 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.


I put CEL to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.




Yours faithfully

sd.

few questions guys.
Does the NTK letter refer to 'breach of contract'?
The sign says ' we use manual patrols and ANPR cameras to monitor this private property and may apply to the DVLA to obtain the registered keepers details in order to send a PCN'. So shall I get rid of the 'There is also no mention of what the ANPR data will be used for' from my appeal?
Should I keep the ANPR synchronisation bit?

sd.

just uploaded a pic of the entrance sign.

Dee140157

Where is the link to the sign.
The appeal is looking good now by the way.

sd.

Thanks Dee. The pic has been added to my original link in post 9.

Dee140157

Nope can't see an entrance sign only the daft one on the wall.

sd.

ttp://i1381.photobucket.com/albums/ah239/sdedmd/IMG_2205_zps4fc2ea24.jpg


try this with h missing

sd.

ttp://i1381.photobucket.com/albums/ah239/sdedmd/IMG_2205_zps4fc2ea24.jpg


try this with h missing