worth appealing to popla?

bpascua

Hello All,

My mother is rather old and a bit daft. In her local car park for reasons I dont understand one evening she parked in a disabled bay while she got a pint of milk. Parking Ticket Limited(ducie st manchester) subsequently stuck a fine for £70 on her windscreen.
I wrote them a standard leter appealing for the poor sinage and unreasonable costs as per the forums advice.

They have written back and said they wont take the mitigating circumstances into consideration and we should pay up. They also sent the popla appeal form. IS it worth appealing or is this a waste of time ? If I do appeal what should the grounds be?

Thanks

Brian

Dee140157

Of course it is worth appealing.
Go to post 3 of the newbie thread (see my signature). Read it and when read follow the blue link "How to win at POPLA" and draft an appeal on the usual the main reasons (not ANPR). Post it here and we will add pointers.

Did you wait for the NTK or did you appeal the windscreen ticket?

bpascua

Hello,

It was a fine stuck on the windscreen, it said we had 14 days to appeal. So I wrote a letter but it was rejected. I will take a look a the sticky you mention and draft a reply.

Thanks

Brian

bpascua

Hello All,

This is my draft appeal to popla, can you please give me any guidance on this. I was going to appeal on the popla site is this OK also?

I am the registered keeper & this is my appeal:

1)The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There was no loss of potential income in a free car park.

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. I therefore think the charges are punitive.

2) Lack of signage - no contract with driver
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

It was getting dark at the time of parking and I am a pensioner. The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times...” These signs are not readable from any distance. The charges are clear from a distance but any other information is not clear. It is not clear in the dark either.
Also there was no yellow box indicating a clearway. There are no signs to indicate a clearway.
There are no yellow lines to indicate a clearway. There are no signs whatsoever that state “ No parking or waiting at anytime.” I would like to indicate strongly to POPLA that this is a lie.

The ticket I received from PTL had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, ie, for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn’t legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement.

To breach a contract, one must have been formed in the 1st place.
It’s my submission that such a contract was not formed. At no time was it brought to my attention on any sign that I had the right to enter a contract for parking without payment of the relevant parking fee offered by the landowners, for another parking charge set quite separately by Excel Parking.
If such a contract was intended it would have made that clear. There is no offer to park at the location by payment of such a charge, and there is no description of what I get from such a contract, let alone be in a position to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract.
If there was an offer of that sort it should have been displayed on the signs saying, more or less, “parking at any time for unlimited and unrestricted periods is £60, including use of disabled bays by non blue badge holders” for instance.

3) Lack of standing/authority from landowner to issue tickets
EXCEL 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 PTL to strict proof of the contract terms with the actual landowner (not a lessee or agent). PTL 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 PTL are entitled to pursue these charges in their own right.

I require PTL 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) Non compliant Notice to Keeper - no keeper liability established under POFA2 2012
On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not and wrongly restricting the keeper's options at that stage to appealing only if the vehicle was stolen. I have no hesitation is stating to POPLA that this is a lie that POPLA should report to the BPA. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.

Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'

The NTK is a nullity so no keeper liability exists.

5) 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.

A lack of signs or markings to indicate an area not for parking , 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 a lack of signs/markings in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

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

Redx

do not use the word I , no me/myself/I when referring to the incident

so put THE DRIVER is a pensioner etc

add a numbered bullet point list before the main appeal

I would also add the beavis and adamson paragraph to the appeal too

you have copied and pasted from other appeals and so the incorrect PPC name is being used in parts, so proof read what you have "typed"

possibly others will have other additions or critique to share so dont send it yet

yes you can use the online website for the appeal process, ticking 3 of 4 boxes (not STOLEN) , when its ready for submission

Herzlos

I'd use "first" instead of "1st", as well.

ezerscrooge

I thnk you need to expand your No GPEOL section. Add this to the bottom of it.

---
[FONT=&quot]PTL 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. PTL 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 PTL to strict proof that that their charge represents a genuine pre-estimate of loss. To date PTL have not provided 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]

bpascua

thanks guys, I have submitted the appeal now, I will post if I win or lose.

Coupon-mad

Also the NTK completely misinforms the rights of a registered keeper to appeal, alleging that the appeal time has 'elapsed' when it has not

You never even got a NTK as you appealed too soon, and that wording was only about UKCPS NTKs (they are the ones who use the word 'elapsed'!)! Oooops, an obvious template not proof-read! This shows why newbies need to actually read what they are copying. Even someone who has never had any ticket before can see that they had nothing called a 'Notice to Keeper' and even if they had, it didn't use the word 'elapsed'...

the NTK is a nullity

It certainly is!

Never mind I expect they still won't be able to show the charge is a GPEOL and you'll probably win!

bpascua

Hello All,

Just a thank you for all the advice. Despite my daft old mother parking in a disabled bay without a blue badge. Popla still upheld our appeal to Parking Ticketing Ltd. Here is the decision based on the GEPOL. Thanks again all!

Reasons for the Assessor’s Determination
It is the Operator’s case that their Terms and Conditions of parking are clearly displayed throughout the above named site. They submit that these state that drivers were required to display a valid blue badge to park in a disabled bay. They submit that the Appellant breached the Terms of parking by failing to display a valid blue badge and therefore is liable to pay the parking charge.
The Appellant raises several grounds of appeal but it is only necessary for the purposes of this appeal to deal with one. This is the submission that the parking charge does not reflect a genuine pre-estimate of loss.
Where such a submission is made, there is a burden on the Operator, and not the driver, to provide a genuine pre-estimate of loss which details how they calculated the parking charge amount. It does not need to be particularly detailed or amount to exactly the charge amount because it is simply an estimate. However, one must be provided.
The Operator has not provided any evidence which establishes the charge reflects a genuine pre-estimate of loss. They have stated that they sent a GEPOL letter to the Appellant but this was not provided to me. Also, I have not received a copy of the rejection of the Appellant’s original representations. The Operator has not provided sufficient evidence to discharge its burden and therefore I cannot find that the charge is justified in this case. Therefore, I find that the charge is unenforceable and the Appellant is not liable to pay it.
Accordingly, I allow the appeal.

ezerscrooge

Excellent news. Shows how easy it is to beat these money grabbing bullies.