parking help please

zhjt109

Hi

I received a ticket at Arundel Castle - I had paid the £5 charge and put the ticket on the dashboard. It was a blowy day and when I returned to the car I found the £5 ticket in the foot well (it was not one you could stick on). I still have the £5 ticket.

I emailed UK Parking Patrol and explained the circumstances. They say I was in contravention and say I can pay £60 in 14 days, or appeal to POPLA and face £100 if I am not successful.

What do you recommend please?

Many thanks in advance.

Jim_AFCB

Best thing to do is start by reading the NEWBIES sticky thread at the top of this forum.
Read it carefully and familiarise yourself with the issues. You will be appealing on legal points, it is not about what happened on the day.

Then come back here with your draft appeal to POPLA for the experts to look over.

zhjt109

Hi

I have read the newbies info, and I'm at a complete loss. As far as I can see I've done everything I shouldn't have (admitted I am the driver, emailed them, given my address, told them the ticket was in the footwell on my return). Do I have any case at all or should I just pay? Thank you for reading.

ezerscrooge

Do you have the POPLA code? - it is a 10 digit number, may be hidden in your rejection letter from UKPP

You can appeal to POPLA and win using the templates and help on this forum. Do not pay them.

zhjt109

Thank you. I have drafted this and would be grateful for any advice.

Popla appeal draft

I was issued with a parking ticket on 24/7/14 but I believe it was unfairly and unlawfully issued. I will not be paying the demand for payment for the following reasons:

• The charge is disproportionate and not a genuine pre-estimate of loss
The amount charged is not based upon any genuine pre-estimate of loss to the company or the landowner.

According to the Unfair Consumer Contract Regulations, parking charges on private land must not exceed the cost to the landowner during the period the motorist is parked there. In my case, the £60 charge being asked for far exceeds the cost to the landowner of the £5 per day fee.

• A ticket was purchased for the day and was displayed on the dashboard. I still have the ticket. It was visible through the window in the foot well when I returned to the car and must of blown off. There was no sticker fixing to the ticket, which would have prevented movement of the ticket.

Redx

sorry but that is a terrible popla appeal, clearly you havent checked the examples in the NEWBIES sticky thread , post #3 , click the link

also popla dont allow for mitigation, it says so on their website , they only deal in legal arguments

so please find a better popla appeal than that, adapt it, then post for checking

zhjt109

i'm not sure I do have a better appeal, given I've already told them a load of information!

Redx

so why havent you looked at the ones linked in post #3 of the newbies sticky thread and adapted one to suit ?

do not use this one https://forums.moneysavingexpert.com/discussion/5031797 but compare it to yours, see the difference ?

that one is for JLA (liverpool airport) so not for you, but can you tell the massive differences ?

Dee140157

It doesn't matter what you have told the PPC so far. You are now appealing to a different body of people now.

Having outed yourself as driver, you appeal to POPLA as driver not keeper, but use one of the templates as the basis for your appeal linked to by the blue words How to win at POPLA in the ten newbies thread post 3.

This important thing to remember there is no loss to the PPC as you did buy a ticket and can send evidence of this.

Go away and do some serious reading of the main points of the appeals at this stage and try to get your head around them.

Jim_AFCB

OK.

I'll give you another pointer - it was there in the NEWBIES thread but I guess it passed you by:

https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281

tells you about putting up a proper appeal to POPLA.

ezerscrooge

At great risk of spoon-feeding - you need something that looks a bit like this...

[FONT=&quot]Car Reg : xxxxx[/FONT]
[FONT=&quot]Location: : xxxxxx[/FONT]
[FONT=&quot]Date of PCN issue : xxxxxx [/FONT]
[FONT=&quot]PCN Number : xxxxxx[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]POPLA Verification Code: xxxxx[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Dear POPLA Assessor,[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I am the registered Keeper of the above vehicle and I'm writing this to appeal a charge sent to me by YYY[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I would like to appeal this notice on the following grounds: [/FONT]
[FONT=&quot] [/FONT]

• [FONT=&quot]Charge not a genuine pre-estimate of loss[/FONT]
• [FONT=&quot]Unlawful penalty clause[/FONT]
• [FONT=&quot]No authority to levy charges[/FONT]

[FONT=&quot]

[/FONT]
[FONT=&quot]1. [/FONT][FONT=&quot]Charge not a genuine pre-estimate of loss[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The YYY signs states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Accordingly, the parking charge must be a genuine pre-estimate of loss. YYY has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge. [/FONT]
[FONT=&quot]
The BPA Code of Practice states:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]“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.“[/FONT]
[FONT=&quot]and [/FONT]
[FONT=&quot]“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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. ParkingEye 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):[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]The British Parking Association Code of Practice uses the word 'MUST':[/FONT]
[FONT=&quot]"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.''[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]''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=&quot] [/FONT]
[FONT=&quot]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=&quot] [/FONT]
[FONT=&quot]I put YYY to strict proof that that their charge represents a genuine pre-estimate of loss. To date YYY have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business For example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included in this pre-estimate of loss.[/FONT]

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

[/FONT]
[FONT=&quot]2. [/FONT][FONT=&quot]Unlawful penalty clause - revenue for YYY[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).[/FONT]

[FONT=&quot]This transparently punitive charge by YYY is a revenue-raising exercise and is therefore unenforceable in law. YYY's own website is damning in this regard. [/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]So this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT][FONT=&quot][/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]3. [/FONT][FONT=&quot]No authority to levy charges[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]YYY 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 YYY 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.[/FONT]
[FONT=&quot]
I put YYY to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the YYY produce to POPLA the contemporaneous and unredacted contract between the landowner and YYY. 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 YYY and the owner/occupier, containing nothing that YYY can lawfully use in their own name as a mere agent, that could impact on a third party customer. [/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company[/FONT]
[FONT=&quot]
I therefore respectfully request that my appeal is upheld and the charge dismissed.

[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]This concludes my appeal.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]Kind regards[/FONT]