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JAS Staples POPLA appeal wording help
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Dustykitten
Posts: 16,507 Forumite
My mother got a parking invoice on her car which I am trying to appeal for her. I have done the first soft appeal to the PCC, JAS and am now doing the POPLA appeal.
I have read so many threads on here and on the pepipoo forums but am still finding this stage difficult.
My short thread on pepipoo can be found hereand here is my appeal attempt for anybody who does not wish to use the link:
Dear POPLA,
I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:
1) The Charge is not a genuine pre-estimate of loss
Their sign states that ‘a parking charge notice for £94 will be issued in any of the following circumstances', so this Operator must prove the charge to be a genuine pre-estimate of loss.
The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.
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.
JAS when rejecting my appeal stated that the cost had been estimated on the cost of the staff issuing the parking charge notice (e.g. salary, equipment, stationary, insurance, etc.) 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.
In the rejection JAS also state potential losses to the retailer due to the parking contravention (if appropriate). An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions. This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.
2) Lack of signage - no contract with driver
AS the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. This car park is entered via a busy dual carriage and no signs are visible until you are inside the carpark. Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.
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.
On close inspection the signs say that it is a breach to turn in the carpark; it is impossible to leave the carpark without turning as you have to exit the way you entered who would agree to these terms, they are so unreasonable.
3) Lack of standing/authority from landowner
JAS 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 JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS 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 JAS are entitled to pursue these charges in their own right.
I require JAS 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) No attempt to mitigate loss
JAS state that the driver was “seen by our parking attendant leaving the car park. The parking attendant took the first picture
at 11:22”. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.
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.
An small print sign which cannot be read until you leave your vehicle and then tells you you cannot turn, 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 signs with such small print and impossible conditions 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 see from pepipoo that JAS seem to be starting to contest the appeals so I want to give myself the best chance at getting this sorted with minimum stress.
Thanks in advance for any guidance oh and the clock is ticking due to this just taking place before our holiday.
I have read so many threads on here and on the pepipoo forums but am still finding this stage difficult.
My short thread on pepipoo can be found hereand here is my appeal attempt for anybody who does not wish to use the link:
Dear POPLA,
I am the registered keeper of vehicle reg xxx xxxx and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:
1) The Charge is not a genuine pre-estimate of loss
Their sign states that ‘a parking charge notice for £94 will be issued in any of the following circumstances', so this Operator must prove the charge to be a genuine pre-estimate of loss.
The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.
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.
JAS when rejecting my appeal stated that the cost had been estimated on the cost of the staff issuing the parking charge notice (e.g. salary, equipment, stationary, insurance, etc.) 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.
In the rejection JAS also state potential losses to the retailer due to the parking contravention (if appropriate). An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions. This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.
2) Lack of signage - no contract with driver
AS the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. This car park is entered via a busy dual carriage and no signs are visible until you are inside the carpark. Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.
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.
On close inspection the signs say that it is a breach to turn in the carpark; it is impossible to leave the carpark without turning as you have to exit the way you entered who would agree to these terms, they are so unreasonable.
3) Lack of standing/authority from landowner
JAS 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 JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS 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 JAS are entitled to pursue these charges in their own right.
I require JAS 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) No attempt to mitigate loss
JAS state that the driver was “seen by our parking attendant leaving the car park. The parking attendant took the first picture
at 11:22”. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.
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.
An small print sign which cannot be read until you leave your vehicle and then tells you you cannot turn, 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 signs with such small print and impossible conditions 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 see from pepipoo that JAS seem to be starting to contest the appeals so I want to give myself the best chance at getting this sorted with minimum stress.
Thanks in advance for any guidance oh and the clock is ticking due to this just taking place before our holiday.
The birds of sadness may fly overhead but don't let them nest in your hair
0
Comments
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best bet is compare it to other recent JAS popla appeals from here that were approved, making any necessary changes to your own
like this one https://forums.moneysavingexpert.com/discussion/4917603
and this one https://forums.moneysavingexpert.com/discussion/4997046
and this one https://forums.moneysavingexpert.com/discussion/4970044
and https://forums.moneysavingexpert.com/discussion/4995389
and https://forums.moneysavingexpert.com/discussion/4868096
easily found using the search word JAS in the search box
good luck0 -
Thanks - I have used one of the recent successful ones you highlighted with minor amendments:
APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2014, VEHICLE REG: **** ***
I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
1 No breach of contract and no genuine pre-estimate of
2 Unclear, inadequate and non-compliant
3 Contract with the landowner – not compliant with the BPA Code of Practice and no legal status to offer parking or enforce
4 No Contract with the driver
5 Unfair terms
6 Unreasonable
7 Unlawful penalty charge
1 NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
There was no parking charge levied, the car park is “free”. There can have been no loss arising from this incident. Neither can JAS lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.
The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £7.00 for all day parking. This is all the more so for the additional charges which the operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by about 40% by early payment that it is unreasonable to begin with.
2 UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE
Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read. I contend that the signs and any core parking terms JAS are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])
3 CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES
JAS do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
I would also request that POPLA to please check whether JAS have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.
I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.
4 NO CONTRACT WITH THE DRIVER
There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied.
5 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. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."
6 UNREASONABLE
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.”
7 UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .
SUMMARY
On the basis of all the 7 points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.
Regards
In their rejection letter JAS state the costs are:
The potential losses to the retailer due to the parking contravention (if appropriate). An example would be the loss of a customer to a store if a parking bay wasn't available to use due to the parking contravention and then go onto to mention their own costs; do I need to address this in my appeal?The birds of sadness may fly overhead but don't let them nest in your hair0 -
'There is no contract between PCC and the driver' should be 'There is no contract between JAS and the driver'.
Also you've lost an important appeal point from your first attempt, namely '4) No attempt to mitigate loss' so reinstate that as point #4 and deleate the current points #4, 5, 6 and 7 as they aren't relevant. In fact 'no contract with the driver' is simply a point which should be in the 'unclear signage' paragraph.
That's also quite an old template and current examples in 'How to win at POPLA; in post #3 of the Newbies thread have a stringer 'no GPEOL' argument than that one.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 -
Thanks CouponMad but I'm now even more confused. My initial attempt was an adaptation of the example in #3 of the newbie thread, have I changed it too much? I'm really trying but I am not sure where I am going wrong.
Is there much difference between my first attempt and second? I have read all the threads and obviously none match exactly.The birds of sadness may fly overhead but don't let them nest in your hair0 -
Here's the 'How to win at POPLA' link from the newbies thread:Dustykitten wrote: »Thanks CouponMad but I'm now even more confused. My initial attempt was an adaptation of the example in #3 of the newbie thread, have I changed it too much? I'm really trying but I am not sure where I am going wrong.
Is there much difference between my first attempt and second? I have read all the threads and obviously none match exactly.
https://forums.moneysavingexpert.com/discussion/comment/62180281#Comment_62180281
Which one was that as I will delete it as an example. It's a bit old and tired...! I liked your appeal in blue better.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 -
My blue, first attempt was from this link:
https://forums.moneysavingexpert.com/discussion/comment/65370663#Comment_65370663
Your post #20
My second attempt was from the first link Redx gave me:
https://forums.moneysavingexpert.com/discussion/4917603
Magic Queen Post #28
This one was used recently and won but I do not know how old the post was that the poster used when creating their appeal.The birds of sadness may fly overhead but don't let them nest in your hair0 -
Couponmad can you recommend any changes I need to make to my blue post, I'll put a summary of points at the top.The birds of sadness may fly overhead but don't let them nest in your hair0
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So neither of your drafts were from the 'How to win at POPLA' latest examples? No wonder the second one looked tired, looks like the poster had in fact copied a 2013 POPLA appeal from a link in his thread's post #2!
I have to pop out to collect one of my teens from the mean streets of Brighton but as I keep saying - choose a current one from the 'How to win at POPLA link' that you seem not to want to choose because it's not JAS specific. Who cares...at least they are current (not 2013 old ones) and you just choose a recent windscreen ticket version similar to your case and change the PPC name throughout, job done!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 -
clearly didnt read what I said earlier so I will reiterate it for posteritybest bet is compare it to other recent JAS popla appeals from here that were approved, making any necessary changes to your own
my point was check your own and alter it according to any 2014 updates that may be listed in those other appeals, until you have the finest appeal against JAS so far this year
at no point did I suggest actually using them and destroying your own appeal , just to use them to fine tune your own appeal0 -
Sorry I seem to have managed to upset you both. Whilst I really do appreciate all the help you give I think it is easy for those who have looked at lots of these like you both have to underestimate how tricky it is to sort through all the links and find the best help.
The How to Win at POPLA thread I have tried to use 4 times now but I must be clicking on the wrong posts links.
I'm just going to tell my mother to pay up and take better care as this has now taken me far more hours than I thought it would.
Thanks again.The birds of sadness may fly overhead but don't let them nest in your hair0
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