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appeal to popla
italiaa
Posts: 4 Newbie
Hello
To cut a long story short, I received a notice in the post for a 32 minute overstay in a car park which allows 1 hour. I wrote back to the Operator (Athena) who have rejected my appeal. I have drafted an appeal to POPLA based on looking through this forum and would very much appreciate some guidance.
I would also like some assistance in how to submit the appeal online to POPLA, which options do I select for it to be under please?
Thanks in advance
POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:
On 26 July 2014 I received an invoice from Athena ANPR as keeper of the above vehicle requiring payment of a charge of £90 for an alleged parking contravention.
I would like to appeal this notice on the following grounds:
1 ) - Charge not a genuine pre-estimate of loss
2 ) - Lack of signage - no contract with driver
3 ) - Lack of standing/authority from landowner
4 ) - Athena's notice to keeper is non-PoFA compliant
1) Charge is not a genuine pre-estimate of loss
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. 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.
Further to this I have not received any breakdown of costs and cannot believe that an overstay in a car park of 30 minutes could possibly equate a loss of £90. That works out to be £180 an hour to park in a free car park. I submit that this amount is actually an illegal fine masquerading as a charge.
The charge is not 'commercially justified'. POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''
Athena are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets'. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #3.
If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.
This is a free (for 60 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 60 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!
No VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.
Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' at ____________ is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable quantity.
It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.
2) Lack of signage - no contract with driver
The signage is inadequate in that it is not sufficiently prominent nor clearly worded and consideration did not flow 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 the Operator's customers and are not parties of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver.
3) Lack of standing/authority from landowner
Athena has no title in this land and 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 Athena to strict proof of the contract terms with the actual landowner (not a lessee or agent). Athena 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 showing that Athena are entitled to pursue these charges in their own right.
I requested that Athena provide me a full copy of the contemporaneous, signed and dated (unredacted) contract with the landowner but this request was ignored. 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) Athena's notice to keeper is non-PoFA compliant
The Operator has failed to comply with constituting Keeper Liability. In order to establish Keeper Liability the Operator needs to comply with the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (the "Act"). The Operator has failed to comply with those requirements as detailed below, and thus as the Registered Keeper I challenge that the Operator has established Keeper Liability. The Operator thus cannot claim this charge against myself as the Registered Keeper.
The "Civil Parking Charge Notice" is presumably a Notice to Keeper and thus needs to comply with the requirements of para.9 sch.4 of the Act.
It fails to comply with the following requirements:
para.9(2)(b): inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
The NtK advises that "the driver of the vehicle is responsible for payment" however it does not state that the parking charges have not been paid in full. Thus the NtK fails to comply with para.9(2)(b) sch.4 of the Act.
para.9(2)(d): specify the total amount of those parking charges that are unpaid, as at a time which is—(i) specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
The NtK does not specify the time at which the parking charges are unpaid and thus does not comply with para.9(2)(d)(i) sch.4 of the Act.
para.9(2)(e): state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—(i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
The NtK does not specify the creditor in any way shape or form. Furthermore, the NtK also does not state that the creditor does not know both the name of the driver and a current address for service for the driver. Finally, the NtK does not "invite the keeper [to pay or to identify the driver]"; instead it states that the keeper "is responsible" for payment or advising of the name and address of the driver. It thus fails on three points to comply with para.9(2)(e) sch.4 of the Act.
para.9(2)(f): warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
The NtK does not state that the creditor (whoever this may be) only has the right to recover the charges from the Keeper "if all applicable conditions under this schedule are met". It is obvious that this requirement was included to protect the Registered Keeper from Operator's claims of Keeper Liability without advising them that strict requirements need to be met. By omitting this condition the Operator has failed to comply with the requirement of para.9(2)(f) sch.4 of the Act.
On this basis, it is clear that the NtK has failed to comply with a myriad of statutory requirements and the Operator will thus be unable to claim Keeper Liability for this charge.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
To cut a long story short, I received a notice in the post for a 32 minute overstay in a car park which allows 1 hour. I wrote back to the Operator (Athena) who have rejected my appeal. I have drafted an appeal to POPLA based on looking through this forum and would very much appreciate some guidance.
I would also like some assistance in how to submit the appeal online to POPLA, which options do I select for it to be under please?
Thanks in advance
POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:
On 26 July 2014 I received an invoice from Athena ANPR as keeper of the above vehicle requiring payment of a charge of £90 for an alleged parking contravention.
I would like to appeal this notice on the following grounds:
1 ) - Charge not a genuine pre-estimate of loss
2 ) - Lack of signage - no contract with driver
3 ) - Lack of standing/authority from landowner
4 ) - Athena's notice to keeper is non-PoFA compliant
1) Charge is not a genuine pre-estimate of loss
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. 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.
Further to this I have not received any breakdown of costs and cannot believe that an overstay in a car park of 30 minutes could possibly equate a loss of £90. That works out to be £180 an hour to park in a free car park. I submit that this amount is actually an illegal fine masquerading as a charge.
The charge is not 'commercially justified'. POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''
Athena are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets'. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #3.
If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.
This is a free (for 60 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 60 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!
No VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.
Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' at ____________ is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable quantity.
It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.
2) Lack of signage - no contract with driver
The signage is inadequate in that it is not sufficiently prominent nor clearly worded and consideration did not flow 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 the Operator's customers and are not parties of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver.
3) Lack of standing/authority from landowner
Athena has no title in this land and 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 Athena to strict proof of the contract terms with the actual landowner (not a lessee or agent). Athena 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 showing that Athena are entitled to pursue these charges in their own right.
I requested that Athena provide me a full copy of the contemporaneous, signed and dated (unredacted) contract with the landowner but this request was ignored. 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) Athena's notice to keeper is non-PoFA compliant
The Operator has failed to comply with constituting Keeper Liability. In order to establish Keeper Liability the Operator needs to comply with the strict requirements of Schedule 4 of the Protection of Freedoms Act 2012 (the "Act"). The Operator has failed to comply with those requirements as detailed below, and thus as the Registered Keeper I challenge that the Operator has established Keeper Liability. The Operator thus cannot claim this charge against myself as the Registered Keeper.
The "Civil Parking Charge Notice" is presumably a Notice to Keeper and thus needs to comply with the requirements of para.9 sch.4 of the Act.
It fails to comply with the following requirements:
para.9(2)(b): inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
The NtK advises that "the driver of the vehicle is responsible for payment" however it does not state that the parking charges have not been paid in full. Thus the NtK fails to comply with para.9(2)(b) sch.4 of the Act.
para.9(2)(d): specify the total amount of those parking charges that are unpaid, as at a time which is—(i) specified in the notice; and (ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
The NtK does not specify the time at which the parking charges are unpaid and thus does not comply with para.9(2)(d)(i) sch.4 of the Act.
para.9(2)(e): state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—(i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
The NtK does not specify the creditor in any way shape or form. Furthermore, the NtK also does not state that the creditor does not know both the name of the driver and a current address for service for the driver. Finally, the NtK does not "invite the keeper [to pay or to identify the driver]"; instead it states that the keeper "is responsible" for payment or advising of the name and address of the driver. It thus fails on three points to comply with para.9(2)(e) sch.4 of the Act.
para.9(2)(f): warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
The NtK does not state that the creditor (whoever this may be) only has the right to recover the charges from the Keeper "if all applicable conditions under this schedule are met". It is obvious that this requirement was included to protect the Registered Keeper from Operator's claims of Keeper Liability without advising them that strict requirements need to be met. By omitting this condition the Operator has failed to comply with the requirement of para.9(2)(f) sch.4 of the Act.
On this basis, it is clear that the NtK has failed to comply with a myriad of statutory requirements and the Operator will thus be unable to claim Keeper Liability for this charge.
I therefore respectfully request that my appeal is upheld and the charge is dismissed.
0
Comments
-
That's good. I assume this was a Lidl car park? I think at the end of point #3 I would add more specifics seeing as this (lack of standing/authority) is usually the point that Athena lose POPLA appeals on! You could add:
A witness statement piece of paper from Lidl, saying Athena can 'issue tickets in their car parks' is not sufficient to show this Operator's standing or level of authority, in this particular car park. In addition, I understand that Athena hold merely a bare licence to put signs up and issue tickets and the true creditor is Lidl who retain the PCN income - so any loss must be shown to be Lidl's pre-estimate of loss. * It is understood that Lidl pay Athena a management fee to act as an agent - without locus standi - in their car parks, just as they pay their cleaners or security guards, none of whom have standing to pursue a charge in their own name in the courts, just as Athena does not.
* from here (but don't quote this to POPLA!): http://parking-prankster.blogspot.co.uk/2014/08/lidl-charge-customers-for-lidls-own.htmlPRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks for the reply coupon mad. Yes it was a Lidl car park. I will add that paragraph.
Are there any guidelines here on the forum explaining how to do the appeal? Im sure on reading other posts I have seen how there is a word limit and I'm likely to exceed that. Also there are four grounds of appeal
The vehicle was not improperly parked
The parking charge (ticket) exceeded the appropriate amount
The vehicle was stolen
I am not liable for the parking charge
Which should I select?
Should I send in a scan of my notice, my reply and Athena's response?
Thanks0 -
you can add a precis in the main appeal box and add SEE ATTACHED POPLA APPEAL ref 1234567891
then attach the appeal as a word doc or notepad file or pdf
tick 3 from 4 boxes (not the STOLEN one)
lazydaisy gave this advice late last year I believe so nothing new
only add evidence backing up your claim, not your job to add the details athena should be adding if they send an evidence pack , which if they dont then dont pre-empt your own case0 -
Thanks Redx.
I have now submitted my appeal.
I will let you know what happens.0 -
Morning all
Just a quick update. I today received the decision from POPLA and they have upheld my appeal.
Thanks for your help.
Reasons below.
The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking in fact were.0 -
Yay - can you add that to the POPLA decisions thread please (top of the forum) stating clearly who the PPC was and that decision.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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