Warwick fine for parking in a private car park

ColliesCarer

Hi Andrea,

Yes you're right - post #3 of NEWBIES is the way to go. Follow the link to How to Win at POPLA - there is an appeal written for CEL there which you can use as your start point. Amend it to fit your location, the signage there etc and the specifics about your alleged contravention.

Make sure you take into account Redx's advice from post #21 of this thread regarding the case from Altrincham - you will find details of court cases won in post #5 of NEWBIES but here is a link to a prankster blog about the above case

http://parking-prankster.blogspot.co.uk/2014/03/waiting-for-space-is-not-parking.html

Post up your draft for forum members to then help you refine it

andreauk2009

Ok, I tried to "assemble" a letter reading and getting those parts of the previous claims that were applicable to me, plus adding small bits related to this circumstance.

I won't expect this to be correct, and on the contrary there could be quite a lot to change, so please be gentle

********

Dear POPLA assessor,

I'm the registered keeper of the vehicle above and I am appealing against the parking charge above, I believe I am not liable for the parking charge on the grounds stated below, I would ask that all points are taken into consideration.

1. Non-genuine pre-estimate of loss
2. Unlawful penalty charge
3. ANPR usage and grace period not properly declared
4 Lack of signage - no contract with the driver
5. Flawed contract with landowner/Authority to issue PCN's
6) Non-compliant Notice to Keeper

1. Non-genuine pre-estimate of loss - Driver has paid the car park as shown from the attached receipt.
In this circumstance, the amount of £100 demanded by CEL is not a genuine pre-estimate of loss but a lump sum charged for just 1 minute and 29 seconds delay to pay the car park, which correspond to a 4 days stay at the standard tariffs.

The estimate must be based upon loss following from a breach of the parking terms (E.g. loss of parking revenue).
I request CEL to provide a full breakdown of how the demanded amount has been calculated; all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of £100.

The Office of Fair Trading has stated to the BPA Ltd 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. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

2. Unlawful penalty charge – Since there is no demonstrable loss or damage yet a breach of contract as been alleged for 1 minute and 30 seconds, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. CEL could state the letter as an invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.
As found by Mr Recorder Gibson QC in the case of!Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal, penalty charges are not recoverable in contract law.

3. ANPR usage and grace period not properly declared - Following the receipt of the NTK, I have personally visited the site in question There is anything that makes aware drivers about the use of the ANPR, nor anything to inform a 10 minutes countdown has commenced (e.g barriers).
By the time a driver has a driver has been able to park, considering the narrow space to make a manoeuvre it is likely half of the given time has already lapsed.
Anybody taking a moment of relax is not meant to rush straight to the ticket machine unless differently informed.

4 Lack of signage - no contract with the driver
CEL posted photographic evidence of a sign including the T&C the driver infringed. This sign is placed high up and just close to the payment machine.
At the time of my visit, I didn't find any prominent sign nearby the entrance indicating the amount due for parking nor any other terms & conditions.
An unhappy driver willing to leave after having read the conditions could effectively infringe them even before having the time to leave the car park.
Under Appendix B Entrance signs of the BPA Code of Practice it states 'Signs should be readable and understandable at all times.

5. Flawed contract with landowner/Authority to issue PCN's - CEL do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters CEL have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put CEL to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand CEL produce to POPLA the contemporaneous and unredacted contract between the landowner and the CEL.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

If CEL produce a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

The BPA code of practice contains the following:!

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.


6) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
The NTK completely misinforms the rights of a registered keeper to appeal, alleging that any payment beyond 28 working days will result in CEL forwarding the account to a Debt Recovery Agency.


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 basic contract law.
I respectfully request that my appeal be upheld and the charge be dismissed if CEL Ltd. fail to address and provide the necessary evidence as requested in the points highlighted above.

*********

Among the many things above, point number 6 is the one that I am 110% unsure about.

Dee140157

There is anything that makes aware drivers about the use of the ANPR, nor anything to inform a 10 minutes countdown has commenced (e.g barriers).

Should say there is nothing...

Your no GPEOL needs a little expanding. Look at a couple of examples in the newbie thread, but I would always include a Beavis rebuttal.
And in the part where you talk about a breakdown of charges, mention as per some decisions on the POPLA decisions thread that business costs such as wages do not count towards GPEOL and triple checking of appeals are excessive and unnecessary.

I would need to check on your final point.

But a very good start to work on.

andreauk2009

Dee140157 wrote: »

Beavis rebuttal.

Just at the very bottom of the letter? Before the conclusion? Or as part of some of the paragraph?

Is the text below the one I need, exactly as it has been written?

Neither is this charge 'commercially justified'. In answer to that proposition from this same PPC which has 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.''

Also, reading from Parkingcowboy.co.uk the following:

Parking charges are issued either as a breach of contract (damages) or as a contractually-agreed sum. It is important that you identify which it is to use correct wording.
...if it is for damages, then the parking company must be able to demonstrate a genuine pre-estimate of loss...
...If it is issued as a contractual charge, then the parking company must be able to demonstrate it is not punitive or unreasonable....

In my circumstance, I've been said the legal basis is "Contract Law", which I expect to belong to the second case - contractual charge.
Should I take out the damages bit?

ampersand

Hello Andrea - check that the POPLA code is valid first.

Parky has this for you:
http://parking-prankster.blogspot.co.uk/2014/01/popla-code-checker.html

If so, clarify para. 1 'The £100 demanded by CEL is not a genuine pre-estimate of loss but a facsimile invoice for 1 minute and 29 seconds, which was part of the time taken to obtain the 4-hour parking ticket.'

Less is more. Where you can use the 3rd person, do.
From post 30, start here - 'POPLA Assessor Chris Adamson has stated in June 2014 that..'blahblah.

Omit ' which has got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) '
#
POPLA Code check first though.

andreauk2009

Ok, I made a change to the paragraph 1) and 3) as follow.

Still not clear where I have to add the Beavis rebuttal and whether the paragraph 1 is applicable in my case.

********

1. Non-genuine pre-estimate of loss - Driver has paid the car park as shown from the attached receipt.
In this circumstance, the amount of £100 demanded by CEL is not a genuine pre-estimate of loss but a lump sum charged for just 1 minute and 29 seconds delay to pay the car park, which correspond to a 4 days stay at the standard tariffs.

CEL cannot demonstrate any initial quantifiable loss for the overstaying. 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 by a driver who was fully authorised to be parked at that site.

I request CEL to provide a full breakdown of how the demanded amount has been calculated; all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of £100.

The Office of Fair Trading has stated to the BPA Ltd 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. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.


3. ANPR usage and grace period not properly declared - Following the receipt of the NTK, I have personally visited the site in question. There is nothing that makes aware drivers about the use of the ANPR, and 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'.
Nevertheless I was able to see something to inform a 10 minutes countdown has commenced (e.g barriers).
By the time a driver parked, considering the narrow space to make a manoeuvre it is likely half of the given time has already lapsed. And it is unlikely people to pay the amount due in time as drivers have not informed about the need to rush out to the machine as they haven't differently informed.

This is also in breach of Appendix B the BPA Code of Practice (Mandatory Entrance Signs) which requires signage with full terms to be readable at eye level for a driver in moving traffic on arrival.

andreauk2009

ampersand wrote: »

Hello Andrea - check that the POPLA code is valid first.

Parky has this for you:
http://parking-prankster.blogspot.co.uk/2014/01/popla-code-checker.html

This is valid

ampersand wrote: »

If so, clarify para. 1 'The £100 demanded by CEL is not a genuine pre-estimate of loss but a facsimile invoice for 1 minute and 29 seconds, which was part of the time taken to obtain the 4-hour parking ticket.'

Less is more. Where you can use the 3rd person, do.

Will make a change

ampersand wrote: »

From post 30, start here - 'POPLA Assessor Chris Adamson has stated in June 2014 that..'blahblah.

Omit ' which has got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) '
#
POPLA Code check first though.

Is this in the newbie one?

Coupon-mad

Have a look at the Parking Eye example POPLA appeal which includes the Beavis rebuttal and you will see where it sits in point #1. You are nearly there!

And the CEL charge is NOT a 'contractual fee' even though they pretend it is, so you need all the points in.

andreauk2009

Ok - This should be complete now. I look forward to reading your comments.
Thanks

**********

Dear POPLA assessor,

I'm the registered keeper of the vehicle above and I am appealing against the issued parking charge; I believe I am not liable for the parking charge on the grounds stated below that I would kindly ask you to consider as a whole.

1. Non-genuine pre-estimate of loss
2. Unlawful penalty charge
3. ANPR usage and grace period not properly declared
4. Lack of signage
5. Flawed contract with landowner/Authority to issue PCN's
6. Non-compliant Notice to Keeper

1. Non-genuine pre-estimate of loss - The £100 demanded by CEL is not a genuine pre-estimate of loss but a facsimile invoice for 1 minute and 29 seconds, which was part of the time taken to obtain the 4-hour parking ticket.

CEL should demonstrate any quantifiable loss for the overstaying in a detailed breakdown that must add up to the demanded £100. A loss caused by the presence of my vehicle in breach of the conditions would have been obvious if no fee were corresponded, but this is not the case.

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.''!

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.

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. Unlawful penalty charge – Since there is no demonstrable loss or damage yet a breach of contract as been alleged for 1 minute and 29 seconds, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket.
CEL could state the letter as an invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.
As found by Mr Recorder Gibson QC in the case of!Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal, penalty charges are not recoverable in contract law.

3. ANPR usage and grace period not properly declared - Following the receipt of the NTK, I have personally visited the site in question. There is nothing that makes aware drivers about the use of the ANPR, and 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'.
Nevertheless I was able to see something to inform a 10 minutes countdown has commenced (e.g barriers).
By the time a driver parked, considering the narrow space to make a manoeuvre it is likely half of the given time has already lapsed. And it is unlikely drivers rush out to pay the amount due in time as they haven't differently informed.

This is also in breach of Appendix B the BPA Code of Practice (Mandatory Entrance Signs) which requires signage with full terms to be readable at eye level for a driver in moving traffic on arrival.

4 Lack of signage - CEL posted photographic evidence of a sign including the T&C the driver infringed. This sign is placed high up and just close to the payment machine at the very back of the car park.

At the time of my visit, I wasn't able to see any prominent sign nearby the entrance indicating the amount due for parking nor any other terms & conditions that could have seen in all light conditions.
An unhappy driver willing to leave after having read the T&C could effectively breach the terms even before having left the car park.

Under Appendix B Entrance signs of the BPA Code of Practice it states 'Signs should be readable and understandable at all times.

5. Flawed contract with landowner/Authority to issue PCN's - CEL Ltd do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters CEL have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper.
I put CEL to strict proof to POPLA that they have the proper legal authorisation from the landowner to enforce charges in their own name as creditor in the courts for breach of contract. I demand CEL produce to POPLA the contemporaneous and unredacted contract between the landowner and the CEL.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

If CEL produces a 'witness statement' in lieu of the contract then I will immediately counter that with evidence that these have been debunked in other recent court cases due to well-publicised and serious date/signature/factual irregularities. I contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor showing sufficient detail to disprove the findings in Sharma and Gardam.

The BPA code of practice contains the following:!

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.

6 – Non-compliant Notice to Keeper - no keeper liability established under POFA2 2012.
The NTK completely misinforms the rights of a registered keeper to appeal, alleging that any payment beyond 28 working days will result in CEL forwarding the account to a Debt Recovery Agency.


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 basic contract law.
I respectfully request that my appeal be upheld and the charge be dismissed if CEL Ltd. fail to address and provide the necessary evidence as requested in the points highlighted above.

Dee140157

The first quoted information on Beavis goes into section 1 at the bottom of the No GPEOL information there.


Did you look on the POPLA thread for examples of costs that cannot be include in a GPEOL ?

And have you done a search for Altrincham on the forum for the words Redx is referring to? These would be useful to quote in your point 3.