POPLA Code issued, advice needed please

balders974

Hi All,


finally managed to get a POPLA code out of PPC after they continuing to send reminder notice's and debt collector letters even though I'd appealed.

Anyway I'm after some advice now regarding the POPLA appeal, I've looked at an Appeal that another poster used for POPLA stating the following reasons the charge should be cancelled:


1 Charge not a genuine pre-estimate of loss
2 No authority to levy charges
3 No Creditor identified on the Notice to Appellant
[FONT=&quot]4. Signage
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Business Rates[/FONT]
[FONT=&quot]8. Summary[/FONT][FONT=&quot]
[/FONT]

however i'm wondering whether to use this as a template or not as although the OP on this link won their appeal, they've listed seven appeal points to POPLA, Where as my original appeal to the PPC was based on three main points:

1/ No GEPOL
2/ Non-Compliance of signage
3/ No Legal standing to offer Contracts or bring a Claim for trespass.


Guess my point being should my appeal to POPLA be consistent with the points I appealed to the PPC on? or does that not matter now I have been issued with a POPLA code?


Many Thanks


Balders

Redx

doesnt matter, use as many as you see fit

checl post #3 of the newbies thread and the link gives you various examples for different scenarios and companies, so make sure your appeal has the salient points in , especially the main ones

use 3 , 5 or 10 if you want, there is no limit and no penalty either

Umkomaas

7. Business Rates is a bit dead in the water now as POPLA won't adjudicate on it and no PPC tries to provide any evidence in this context, so save yourself a bit of typing (or copy and pasting!).

Umkomaas

I've just noticed you've got 4 separate threads running on this one PCN. You don't need to start a new thread every time there's something to report or query.

It is especially important when you put your draft POPLA appeal up for appraisal here that we are able to cross-refer to your original parking event.

Please PM Crabman (forum guide) and ask him to merge all 4 threads.

balders974

Thanks for the replies Umkomaas and Redx.


I'll also check with crabman and ask him to merge the threads.


Thanks again

balders974

Hi All,

Just been writing/copy and pasting my POPLA appeal letter.

Could someone have a look and let me know what you think please?any suggestions for improvements would be appreciated.

Thanks Balders
I as the registered keeper received an invoice from Highview Parking Ltd. requiring payment of a charge of £95 (discounted to £55 if paid within 14 days) for the alleged offence of being in Violation of the terms and Conditions displayed on the Signage at Premier House, Edgware, HA8.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. No Clarification as to whether the Charge is for Breach of Contract or Trespass
3. No authority to levy charges
4. No Creditor identified on the Notice to Appellant
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Summary

1. Charge not a genuine pre-estimate of loss
The demand for a payment of £95 (discounted to £55 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states:
“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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I require Highview Parking Ltd. to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


2. No Clarification as to whether the Charge is for Breach of Contract or Trespass
Highview Parking Ltd. Have not stated in their Charge Notice whether this charge is for ‘Breach of Contract’ or Trespass, and only that the charge is for ‘Violation of the Terms and Conditions displayed on the signage’. Of which they have not enclosed a copy with the Charge Notice, and I as Registered Keeper cannot be expected to know.
I therefore respectfully request that my appeal is upheald and the charge dismissed


3. No authority to levy charges
A parking management company will need to have the proper legal authorization to contract with the consumer on the landowner’s behalf and enforce for breach of contract. Highview Parking Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles Highview Parking Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the Highview Parking Ltd. to strict proof to POPLA that they have the necessary legal authorization at this location and I demand that the Highview Parking Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the Highview Parking Ltd. Even if a basic contract 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 Highview Parking Ltd. and the owner/occupier, containing nothing that Highview Parking Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

4. No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Highview Parking Ltd., there is no specific identification of the Creditor who may, in law, be Highview Parking Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


5. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.
I therefore respectfully request that my appeal is upheld and the charge dismissed.

6. ANPR Accuracy
Highview Parking Ltd. are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Highview Parking Ltd. to present records as to the dates and times of when the cameras were checked, calibrated 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 – it’s vital that Highview Parking Ltd. produce evidence in response to these points.


7. Summary
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.

Yours faithfully

Umkomaas

1. You need to put a paragraph in your GPEOL appeal section relating to the PE -v- Beavis case, should Highview try to play the 'commercial justification' card. Here it is:

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. You keep using the term 'Notice to Appellant'. The legal terminology from PoFA is 'Notice to Keeper', so don't mix and match this term, use the correct term only, otherwise it's legally meaningless.

3. Your appeal section 4 'No Creditor identified on Notice to Appellant'. Firstly the title is meaningless (as per above), but the requirement to identify a creditor is purely in the context of complying with PoFA to establish keeper liability. It's not an appeal point as you have phrased it - ie they've missed this out so the appeal should be upheld. The point you should be making is that as they have failed to identify the creditor they have failed to establish keeper liability and can therefore only pursue the driver.

You can amend the paragraph to incorporate this, but if you don't understand the point, or struggle with phrasing it, it can be left out - it's never really been a killer point in the past.

4. Personally I've always cringed at seeing "I therefore respectfully request that my appeal is upheld and the charge dismissed" at the end of each and every appeal section. I'd just put it once, in the final summing up paragraph.

HTH

Coupon-mad

Echoing what Umkomaas said already plus:

The NTK is also flawed if it merely tells a keeper that the alleged contravention is 'being in Violation of the terms and Conditions displayed on the signage'. How can this possibly comply with the POFA 2012 Schedule 4 paragraph 9 requirements about stating the circumstances under which the parking charge arose? So that means you can argue more strongly about the NTK and state it's fundamentally flawed and there is no keeper liability established from a non-compliant document.

balders974

Thanks for the comments Umkomaas and Coupon-mad, I've amended my POPLA appeal and think I've covered all your points, could you just have one more check before I submit please?


Thanks Balders




[FONT="&amp]I as the registered keeper received an invoice from Highview Parking Ltd. requiring payment of a charge of £95 (discounted to £55 if paid within 14 days) for the alleged offence of being in Violation of the terms and Conditions displayed on the Signage at Premier House, Edgware, HA8.

As the registered keeper, I would like to appeal this notice on the following grounds:[/FONT]
[FONT="&amp]1. Charge not a genuine pre-estimate of loss
2. No Clarification as to whether the Charge is for Breach of Contract or Trespass
3. No authority to levy charges[/FONT]
[FONT="&amp]4. No Creditor identified on the Notice to Keeper
5. Unlawful Penalty Charge
6. ANPR Accuracy
7. Summary[/FONT][FONT="&amp]

1. Charge not a genuine pre-estimate of loss[/FONT]
[FONT="&amp]The demand for a payment of £95 (discounted to £55 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA code of practice states:
“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.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. I require Highview Parking Ltd. to provide a detailed breakdown of how the amount of the “charge” was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business (such as the erection of signage, the provision of back office services, the maintenance of ANPR cameras, cost of membership of the BPA Ltd etc.) may not be included in this pre-estimate of loss.

[/FONT]


[FONT="&amp]Neither is this charge ‘commercially justified’. In answer to that proposition from a PPC which had got over-excited about the Parking-Eye 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:[/FONT]


[FONT="&amp]“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”.[/FONT]


[FONT="&amp]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.”


[/FONT]


[FONT="&amp]2. No Clarification as to whether the Charge is for Breach of Contract or Trespass[/FONT]
[FONT="&amp]Highview Parking Ltd. Have not stated in their Charge Notice whether this charge is for [/FONT]‘[FONT="&amp]Breach of Contract[/FONT]’[FONT="&amp] or Trespass, and only that the charge is for [/FONT]‘[FONT="&amp]Violation of the Terms and Conditions displayed on the signage[/FONT]’[FONT="&amp]. Of which they have not enclosed a copy with the Charge Notice, Therefore Highview Parking Ltd have failed to show keeper liability under Schedule 4 paragraph 9(2)(c) of the Protection of Freedoms Act 2012 as this states the notice to keeper must 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 bought to the attention of the drivers) and the other facts that made them payable.
[/FONT]
[FONT="&amp]3. No authority to levy charges[/FONT][FONT="&amp]
A parking management company will need to have the proper legal authorization to contract with the consumer on the landowner’s behalf and enforce for breach of contract. Highview Parking Ltd. must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location.
I believe there is no contract with the landowner/occupier that entitles Highview Parking Ltd. to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.
I put the Highview Parking Ltd. To provide strict proof to POPLA that they have the necessary legal authorization at this location and I demand that the Highview Parking Ltd. produce to POPLA the contemporaneous and unredacted contract between the landowner and the Highview Parking Ltd.[/FONT] [FONT="&amp]Even if a basic contract 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 Highview Parking Ltd. and the owner/occupier, containing nothing that Highview Parking Ltd. can lawfully use in their own name as a mere agent, that could impact on a third party customer. [/FONT]
[FONT="&amp]
4. No Creditor identified on the Notice to Keeper[/FONT]
[FONT="&amp]Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Highview Parking Ltd., there is no specific identification of the Creditor who may, in law, be Highview Parking Ltd. or some other party. The Protection of Freedoms Act requires a Notice to Keeper to have words to the effect that “The Creditor is…” and the Notice does not. Therefore in failing to identify the creditor Highview parking have failed to establish keeper liability with regard to paragraph 9(2)(h) of Section 4 of the Protection of Freedoms Act 2012.[/FONT][FONT="&amp]
5. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this “charge” is an attempt at extorting an unlawful charge in lieu of a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

6. ANPR Accuracy
Highview Parking Ltd. are obliged to make sure the APNR equipment is in working order, as described in paragraph 21.3 of the British Parking Association’s Approved Operator Scheme Code of Practice, version 3 of June 2013. I require Highview Parking Ltd. to present records as to the dates and times of when the cameras were checked, calibrated 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 – it’s vital that Highview Parking Ltd. produce evidence in response to these points.


[/FONT]






[FONT="&amp]7. Summary[/FONT]
[FONT="&amp]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.[/FONT]


[FONT="&amp]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]





[FONT="&amp]Yours faithfully[/FONT]

Umkomaas

Sorry OP it's been difficult to read due to all the [Font = "&amp) formatting detritus littered through the text, but I didn't spot anything amiss, so should be good to go.

balders974

Hi All,

Received the evidence pack from the PPC on Friday, however it doesn't refer to my POPLA Code and none of the information is relevant to my case/me or my vehicle.

Is it worth me advising the PPC of there mistake or keep quiet and use this as a later date as proof of the PPC's incompetence?

Thanks

Balders