CP Plus Popla Appeal Help required please

Gokumdas

thank you I will look, draft and post this evening.

gertysingh

1. Do take photos of the area yourself to prove insufficient signage. With the knowledge you have provided PPCs will cover their track and put up signage in places you noted they were deficient.

2. fyi for later: When you receive your evidence pack from CP Plus after your Popla appeal, let us know what they have sent.

Gokumdas

Here is my written POPLA appeal, id this ok?

Dear POPLA Adjudicator

RE: POPLA code xxxx

Vehicle Registration: XXXXX
PPC: CP Plus
PCN ref: XXXXXXX
Alleged Contravention Date: 17/01/2014

I am the registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
1. The charge is not a genuine pre estimation of loss
2. There is no contract that permits levying charges
3. Inappropriate parking charge
4. Prompt payment discount not 40% less
5. Lack of signage
6. No breach/trespass

My Appeal.
1)The amount of the charge is disproportionate to the loss incurred by Vehicle Control Services Ltd and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because Vehicle Control Services Ltd have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be agenuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.
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) There is no contract with the landowner/occupier that entitles them to levy these charges and therefore CP Plus has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to CP plus to prove otherwise so I require that CP plus produce a copy of their contract with the landowner, which must be BPA CoP compliant. This means specifically, that the contract must be dated before this parking event and show that CP Plus are granted rights to form contracts with drivers on site and to pursue their charges in the courts in their own name.

3) The demand for a payment of £90 as noted within the Parking Charge is a punitive amount that has no relationship to the loss that would have been suffered by the Landowner. 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 CP Plus to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

4)In addition, CP Plus are also not compliant with the early payment discount clause of the BPA code of practice which states:
19.7 If prompt payment is made, you must offer a reduced payment to reflect your reduced costs in collecting the charge. The reduction in cost should be by at least 40% of the full charge. ‘Prompt payment’ is defined as 14 days from the date the driver or the keeper received the notice.
The discount that CP Plus offered for payment within 14 days was £50, 40% off of £90 is £36, a big difference to the £50 offered.

5) There is/was categorically no contract between the driver and The Car Parking Partnership (CP Plus). No signs were observed. There were no large BPA standard signs when the car park was first entered therefore there was no idea of any alleged contract or restrictions.
There were no signs at all located near where the car was parked.
I require CP Plus to provide POPLA with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.
6) If there was no contract, then at most the allegation can only be a civil trespass. This is denied - and indeed the CP Plus ticket did not mention trespass nor breach, so there is no charge applicable. However, for the avoidance of doubt, if CP Plus do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss. Since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in short time the car was on site, there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.

I request that my appeal is upheld and the charge dismissed.

Yours sincerely

4consumerrights

Hi Guys

Sorry but this POPLA will NOT beat CP Plus. I would suggest that people on here do what has been previously suggested and which is the only way to beat CP Plus:

Get yourself a CP Plus loss Document (then most recent one)
Include the loss document in your evidence.
Do a full rebuttal of the loss document in your initial appeal,rebutting each point of the loss document so its included in you full initial appeal
Submit appeal

Dee140157

You have your sums wrong. 40% of £90 is indeed £36. However £90-£36 is £54, which is the 40% discount they can offer! £50 is a larger than 40% discount.

Gokumdas

thank you Dee140157

How do I acquire the loss document?

Redx

its probably in one of the recent threads about this PPC so use the search box and search words to find one

Coupon-mad

'The Car Parking Partnership' and 'CP Plus' are two different firms, then in your first paragraph you have 'Vehicle Control Services Ltd' another firm again!

Also was the NTK received by day 15?

How come this was a January PCN only at POPLA stage now? Or have you changed the 'alleged contravention date' at the top of your POPLA appeal, to hide the real date?

Gokumdas

Thank you Coupon-mad for finding those copy/paste errors.

The NTK was recieved 10 days after the incident, The deadline for Popla is the end of August.

I am a little concerned about 4consumerrights post, as I do not have a 'loss document' and cannot find any reference to it in these forums. Is this a lost cause considering the recent Popla appeal against CP Plus?

The only correspondence I have had from CP plus are the 2 letters shown above so I have no idea what evidence they will provide when I appeal to Popla.

Gokumdas

Amneded POPLA appeal:

Dear POPLA Adjudicator

RE: POPLA code xxxx

Vehicle Registration: XXXXX
PPC: CP Plus
PCN ref: XXXXXXX
Alleged Contravention Date: 17/07/2014

I am the registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
1. The charge is not a genuine pre estimation of loss
2. There is no contract that permits levying charges
3. Inappropriate parking charge
4. Lack of signage
5. No breach/trespass

My Appeal.
1)The amount of the charge is disproportionate to the loss incurred by CP plus and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the PCN to be a penalty because Vehicle Control Services Ltd have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).
POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be agenuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.
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) There is no contract with the landowner/occupier that entitles them to levy these charges and therefore CP Plus has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to CP plus to prove otherwise so I require that CP plus produce a copy of their contract with the landowner, which must be BPA CoP compliant. This means specifically, that the contract must be dated before this parking event and show that CP Plus are granted rights to form contracts with drivers on site and to pursue their charges in the courts in their own name.

3) The demand for a payment of £90 as noted within the Parking Charge is a punitive amount that has no relationship to the loss that would have been suffered by the Landowner. 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 CP Plus to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

4) There is/was categorically no contract between the driver and CP Plus. No signs were observed. There were no large BPA standard signs when the car park was first entered therefore there was no idea of any alleged contract or restrictions.
There were no signs at all located near where the car was parked.
I require CP Plus to provide POPLA with evidence that its signage is compliant with BPA rules upon both entry and where the car in question was parked.

5) If there was no contract, then at most the allegation can only be a civil trespass. This is denied - and indeed the CP Plus ticket did not mention trespass nor breach, so there is no charge applicable. However, for the avoidance of doubt, if CP Plus do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss. Since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in short time the car was on site, there was in fact no loss at all and this charge is purely a profiteering penalty, out of all proportion.

I request that my appeal is upheld and the charge dismissed.

Yours faithfully