parking help please

Redx

doesnt have the paragraphs about BEAVIS or CHRIS ADAMSON in it

mentions different parking companies so you have not proof read the appeal (probably just copied and pasted without any due diligence reading it or correcting it from appeals to other parking companies)

so not a bad try but needs a lot more work and effort , including adding a numbered bullet point menu as detailed in the last reply

zhjt109

Thanks for your feedback. I have added the Beavis information and checked it again. I have tried to amend it to my case, but I find the whole thing very difficult to get my head around. Is it good enough to go yet?


Dear POPLA,
I am the registered keeper & my appeal is on the following grounds:

1) The Charge is not a genuine pre-estimate of loss
2) Misleading Signs
3) Lack of standing/authority from landowner
4) Unreasonable/Unfair Terms


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.

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.''

Neither is this charge 'commercially justified'. In answer to that proposition from PPC in relation to the decision made in ParkingEye v Beavis (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”.
Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."


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 UK Parking Patrol Office 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.

zhjt109

Hi - I wondered if someone would mind giving this a final going over for me? Many thanks for all your time.

Guys_Dad

If you are going to quote the BPA CoP, check you have the quote correct.

You write "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."

but the CoP reads "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. "

That seems to contradict your assertion.

You could, however, say that if the contract is with a management company rather than the landowner, then you seek written proof that the agent has that authority.

I would put that in a separate paragraph and re-work your appeal so that you don't include incorrect information.

Also, you say you have the ticket in question. You should be writing "I include a copy of the ticket in question" and include it.

zhjt109

My appeal was successful!

The assessor said "The onus is on the operator to sufficiently address the appellant's points and to prove its case on balance of probabilities. The operator has provided a copy of the customer license agreement to show that they can process and enforce parking charge notices, however, the licence contains only an address for the customer and does not have the name of the customer and appears to be invalid. A valid contract shall contain valid names for both parties of the agreement and this one does not comply with this requirement. The operator has not discharged the burden of proof. Accordingly, I allow this appeal".

Thank you for all your help - I couldn't have done it without you!

Redx

excellent news

please post the PPC, assessor and decision here for posterity

https://forums.moneysavingexpert.com/discussion/4488337

interesting that it failed on the contract, not the more usual appeal points