parking help please

zhjt109

Thank you lovely forumites for your helpful pointers. I would be grateful for your comments on the following. Many, many thanks!

POPLA APPEAL LETTER:

Dear POPLA Assessor,

Re: UK Parking Patrol Office PCN


Verification code xxxxxxxxxx


I appeal on the following grounds:


1) No genuine pre-estimate of loss.


2) No standing or authority to pursue charges nor form contracts with drivers.


I am the registered keeper and I wish to appeal a recent parking charge from UK Parking Patrol Office.

Paragraph 9.4 of Schedule 4 of the Protection of Freedoms Act 2012


1) No genuine pre-estimate of loss

The reason for issue is recorded as “no valid parking ticket”. I had paid the £5 parking fee for the day when I arrived, but the ticket fell off the dash board. I have the ticket as evidence. There was therefore no loss incurred at all.

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, given that no loss was incurred.


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.“
and
“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “

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. UK Parking Patrol Office cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not a 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.''



2) No standing or authority to pursue charges nor form contracts with drivers.
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.
The Operator must produce evidence to demonstrate that it is the land-owner; or, a contract or other evidence that it has the authority of the land-owner to issue charge notices at this location.
The Keeper believes there is no contract with the landowner/occupier that entitles the Operator 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.
The keeper puts the Operator to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the Operator produce to POPLA the contemporaneous and unredacted contract between the landowner and the Operator.

Redx

nope, needs to be more like post #11

Half_way

Have you got in touch with the landowner, i assume its this lot http://www.arundelcastle.org/ while you should continue to work on/hone your popla appeal/challenge this, a complaint to the car park owner who hired the parking company, could also be a useful avenue.
in most cases the car park owner have hired the parking company to act on their behalf in their car park, as their agents and as such the car park owner can be liable for the actions of their agents.

zhjt109

thank you half way. I saw that someone had success with Macdonald's , and have just sent them an email.

zhjt109

thank you red x. I will have another look in the morning. I'm very confused!

Half_way

zhjt109 wrote: »

thank you half way. I saw that someone had success with Macdonald's , and have just sent them an email.

if they dont budge, and trot out the nothing to do with us line, or similar then take a read of the stickey and theres a bit about claiming your costs back from the PPC should a popla appeal be successful, re-word it a little then politely but firmly tell the landowner who hired the ppc that you may be holding the landowner liable for you costs as a direct result of their agents actions., unless they instruct their agents to cancel the charge with imediate effect, and you will be leaving a review on trip adviser to warn other visitors about this- or words to that effect.
trip advisor page http://www.tripadvisor.co.uk/Attraction_Review-g186405-d211711-Reviews-Arundel_Castle_Gardens-Arundel_West_Sussex_England.html

zhjt109

Thank you Half way - very wise words, I had not thought of that! Good old trip advisor!

Coupon-mad

zhjt109 wrote: »

thank you red x. I will have another look in the morning. I'm very confused!

Not sure why you stopped before reading the simple clear link in post #3 of the Newbies thread, which tells you how to win at POPLA?! Also can't understand why, when given the link that was in the Newbies thread all along, you didn't then copy a decent POPLA appeal including an 'unclear signage' paragraph as well? We can't write the entire thing for everyone, that's why there are examples to copy. Please just copy a template, adapt it to suit (that means proof reading it, changing details, changing the PPC name throughout and please resist the temptation to cut it down to some weaker, short version!).

The version in post #11 is pretty good (if a bit dated in places) but needs point #2 removing as it's not relevant. The 'website being damning' is talking about another PPC!

So remove this from ezerscrooge's version and replace with an 'Unclear signage' paragraph which you will find in UMPTEEN examples in the link already shown to you (please don't tell us the signs were clear, we don't put it in for that reason, we put it in to set the PPC up to show more evidence they may slip up on):

NOT THIS:
2. [FONT=&quot]Unlawful penalty clause - revenue for YYY[/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]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]I therefore respectfully request that my appeal is upheld and the charge dismissed.[/FONT]


NOT THIS in point ##3 either (it's old and not what needs to be said about witness statements):

''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''

NOPE.

I suggest you simply start again in the morning and this time please read post #3 of the Newbies thread (stop giving up just because you are reading the irrelevant - to you - first bit and couldn't get past post #1 of the sticky thread - which you don't need to read anyway, you need post #3!). Follow the link to 'How to win at POPLA' yourself and find a decent similar windscreen ticket one to copy (that means NOT using an 'ANPR camera' version of course...please choose a relevant one. I do say beside each example which sort of case it would suit...). This is a lot simpler than you are making it, maybe tonight you were too tired to see the wood for the trees.

zhjt109

Hi everyone

I've tried again and would be very grateful for any pointers. Thank you all.

Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
The Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event. The reason for issue is recorded as “no valid parking ticket”. I had paid the £5 parking fee for the day when I arrived, but the ticket fell off the dash board. I have the ticket as evidence.

This Operator cannot demonstrate any initial quantifiable loss. 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, but does not apply in this case. 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. 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.

2) Misleading Signs
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, with wording that dresses up the charge as a 'contractual' fee. It is not; see point 1 a).

There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of UK Parking Patrol Office and not expecting to read a contract when they park in a field. It would be necessary for any signs in the field to be so prominent that the terms must have been seen/accepted by the driver. That is not the case; the sign was high up and in very small font.

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.'

The signs there are certainly not 'startling'. Nor was there any lighting at night to illuminate the terms. The signs there now are few and far between. The restrictions were not obvious and nor were the terms drawn to the driver's attention - and certainly not the risk of any hefty 'charge'.

I don’t even recall seeing any notices - without that, there is no contract at all.


3) Lack of standing/authority from landowner
UK Parking Patrol Office has no title in this land and has no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UK Parking Patrol Office to strict proof of the contract terms with the actual landowner (not a lessee or agent). UK Parking Patrol Office have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UK Parking Patrol Office are entitled to pursue these charges in their own right.

I require UKCPS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.


4) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

An unlit sign of terms placed too high to read, is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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 charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

I contend it is wholly unreasonable to rely on unlit signs in small font in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a car park. I put this Operator to strict proof to justify that their charge, under the circumstances described.

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

Jim_AFCB

It is usually recommended to bullet-point the headings at the start of the appeal, before going into detail,

i.e.

1. This Charge is not a genuine pre-estimate of loss
2. Misleading Signs
3. (etc etc)

so that POPLA can see the outline of the appeal before considering it in detail.

Apart from that, i will leave it to the experts to pick over