Ethical Parking Management POPLA Appeal

g1000

Hi All,

I am in the process of appealing to POPLA regarding a CBC from Ethical Parking Management. We were parked in a residents/visitors car park and our permit had fallen on the floor.

Any how I have two quick things I would like some advice on if that is OK?

1 - Is this appeal suitable?
Dear POPLA Assessor,

I'm the registered keeper of the vehicle above and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below. I would ask that all points are taken into consideration.

1. Non genuine pre-estimate of loss
2. No contract between driver/Inadequate signage
3. Flawed contract with landowner/Authority to issue PCN's
4. Unlawful penalty charge
1. Non genuine pre-estimate of loss - The Amount of £100 demanded by Ethical Parking Management is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue. As parking in this car park costs nothing to residents or guests for the whole day, the amount of £100 demanded from Ethical Parking Management is extortionate. I request Ethical Parking Management to provide a full breakdown of how these costs are calculated. All these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of £100. Such a high demand is punitive and has an element of profit included that is not allowed to be imposed by parking companies.

The parking company may decide to include day to day running costs of the business (for example wages, uniforms, signage, maintenance costs) but these would have occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

Given that Ethical Parking Management charge the same lump sum however long the overstay, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
2. No contract between driver/Inadequate signage - Signage in this car park does not comply with the BPA Code of Practice. It does not state to whom one would form a contract and therefore Ethical Parking Management have failed to form a contract with the driver. No contract has been agreed.
3. Flawed contract with landowner/Authority to issue PCN's - Ethical Parking Management do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters Ethical Parking Management have provided no evidence that they are lawfully entitled to demand money from a driver or keeper. Ethical Parking Management must prove to POPLA that they have the proper legal authorisation from the landowner to form contracts with drivers and to enforce charges in their own name as creditor in the courts for breach of contract.

The BPA code of practice contains the following:

7. Written authorisation of the landowner
7.1 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. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.
4. Unlawful penalty charge - Since there is no demonstrable loss or damage yet a breach of contract has been alleged for a car park which usually would be free for residents or guests to use, it can only remain a fact that this 'charge' is an attempt at extortion by using an unlawful charge to impersonate a parking ticket. Ethical Parking Management could state the letter as an invoice or request for monies, yet they choose to word it as a 'Contractual Breach Charge' in an attempt for it to be deemed as a official parking fine such as the ones issued by the Police and local authorities.

This concludes my appeal. I respectfully request that my appeal be upheld and the charge be dismissed if Ethical Parking Management fail to address and provide the necessary evidence as requested in the points highlighted above.

Yours faithfully,

2. - Whilst conducting some research I found some minutes from a local residents meeting in which I believe an employee of EPM said - “we can take a bigger increase in fees on the assumption that 12% of people don’t pay (the charges)”. - eastprestonvillage ! co ! uk/media/aosera-budget ! pdf


(change the exclamations to dots - new user...)

Does anyone think that this would add wait to the charge not being an accurate figure for the loss incurred?

Any help would be really appreciated.

Many thanks
mption
.

Umkomaas

https://www.eastprestonvillage.co.uk/media/aosera-budget.pdf

Umkomaas

You need to build the Beavis case into your GPEOL paragraph should Ethical start to try a 'Commercial Justification' tack.

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:

''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”.

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.''

Your case is precisely the end result of residents (mistakenly) voting for parking control. The PPC will be like a monkey with a machine gun around your estate, with residents taking most of the flak!

Coupon-mad

Yep you could use that link if you explain it well. You'd have to say who that guy is for sure, and what it means in your opinion, It could go into the 'no GPEOL' point.

However, that draft is a bit short on detail and older than some examples. This VCS example (different PPC so would need proof reading & tweaking to change detail and the PPC's name) was also a windscreen ticket and is more up to date and stronger on the signage and GPEOL points:

https://forums.moneysavingexpert.com/discussion/comment/66245745#Comment_66245745

Did you wait for the NTK and appeal only as keeper? Surely the NTK wasn't compliant so you'd have another appeal point that there's no keeper liability?! Can you show us the Notice to Keeper please or did you not wait for it (have you outed the driver or not, in the first appeal)?

MissMix

I've had a good read of the newbies thread, and like g1000 I wish to appeal (on family behalf) to POPLA as an inadequate appeal has been rejected by UKCPS about 2 weeks ago -didn't check here 1st :-(

1. do I need a POPLA code? Or should I just go ahead?

Umkomaas

MissMix wrote: »

I've had a good read of the newbies thread, and like g1000 I wish to appeal (on family behalf) to POPLA as an inadequate appeal has been rejected by UKCPS about 2 weeks ago -didn't check here 1st :-(

1. do I need a POPLA code? Or should I just go ahead?

You do need to start a new thread of your own, as we work on the basis of 'one case, one thread' so advice doesn't become confused and/or we have a complete free for all with any number of random cases being tagged on.

You'll need to give us a bit more information than what you have above - residential estate, supermarket car park, disabled bay, parent & child bay, windscreen ticket, etc - but no need for a 'War and Peace' version!

Help available via a new thread of your own, and anything you're not sure about we'll clarify.

HTH

g1000

Here is the timeline of events, I cant upload documents but have them all scanned if anyone can advise a way of showing them?

Initial incident - 19/04/14

Formal demand received on 16th June (stating that a CBC was issued to the driver etc)

Letter before action received on 15th July stating that if payment isnt received within 28 days they will issue court proceedings.

We replied with the following:
[FONT=&quot]This is an appeal against the charge issued to the vehicle with the registration *****, charge reference *****.

It is the registered keepers assertion that :

1. The charge is not a genuine pre-estimate of loss.
2. That the signage does not conform to the BPA CoP to which Ethical Parking Management has committed.
3. That Ethical Parking Management has no authority to issue charges over the land in question.

As such the charge is rejected. You should now either cancel said charge or provide a POPLA code for the registered keeper to appeal to the independent adjudicator.

Any further correspondence other than confirmation of cancellation or a POPLA code will be considered harassment and could result in legal action being taken against you.


Received acknowledgement of our letter on 22nd July[/FONT].

Received rejection of appeal with POPLA code on 11th August 2014.

I dont believe I have disclosed who the driver was thus far. Thank you for all the help, my partner would have just paid the money but I genuinely do not believe this 'fine' is fair.

Coupon-mad

You are very lucky you got a POPLA code having appealed that late.

Shocking so many people think they should pay - I really don't understand why, surely people smell a rat when they see the so-called 'PCN' isn't from the Council....! It's a private firm - it's not a fine. It's a scam and so easy to Google you'd have thought more people would be aware of how to appeal by now.

So just use a windscreen ticket example of a POPLA appeal from the Newbies thread & adapt it just like everyone here does. The points of appeal are all there and you just need to proof-read & amend the PPC's name and anything that makes no sense for your case (such as not leaving sentences talking about unlit signs in the dark, if yours was daylight...oh you'd be surprised at what some posters do in the name of copying a template and not bothering to proof-read! I spotted 4 posters in one week copying 'in the dark' wording when their PCN was in the daytime). It feels like a school teacher writing 'see me' on some of these draft appeals - it's almost tempting to let people send them unaltered to POPLA!

Anyway you can find what you need now in the Newbies thread and if you want to show the draft here first please do.

g1000

Many thanks for your help so far, please could I ask for some advice as to whether this would be a suitable POPLA appeal?

POPLA Reference Number:
Vehicle Reg:
PPC: Ethical Parking Management
PCN Ref:
Date of PCN:

I, as the registered keeper received an invoice from Ethical Parking Management (referred to hereafter as EPM) requiring payment of a charge of £100 for the alleged contravention of parking without displaying a valid permit at Angmering on Sea Estate, East Preston.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Letter before action.
4. No contract between driver/Inadequate signage

1. Charge not a genuine pre-estimate of loss

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 / Landholder. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
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.


The Amount of £100 demanded by EPM is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue. As parking in this car park costs nothing to residents or guests for the whole day, the amount of £100 demanded from EPM is extortionate. I request EPM to provide a full breakdown of how these costs are calculated. All these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of £100. Such a high demand is punitive and has an element of profit included that is not allowed to be imposed by parking companies.

The parking company may decide to include day to day running costs of the business (for example wages, uniforms, signage, maintenance costs) but these would have occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

Given that EPM charge the same lump sum however long the overstay, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event

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:

''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”.

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.''

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

2. No authority to levy charges

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf and enforce for breach of contract. EPM must either produce evidence to demonstrate that it is the landowner/landholder or a contract that it has the authority of the landowner/landholder to issue charge notices at this location.
I believe there is no contract with the landowner/landholder and EPM which entitles EPM to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore I contend that EPM has no authority to issue charge notices.

I put EPM to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that EPM produce to POPLA the contemporaneous and unredacted contract between the landowner/landholder and EPM. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between EPM and the landowner/landholder and would contain nothing that EPM can lawfully use in their own name as a mere agent, that could impact on a third party customer.

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

3. No Creditor identified on the ‘Letter Before Action’

Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to EPM there is no specific identification of the Creditor who may, in law, be EPM or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.

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

4. No contract between driver/Inadequate signage

Signage in this car park does not comply with the BPA Code of Practice. It does not state to whom one would form a contract and therefore Ethical Parking Management have failed to form a contract with the driver. No contract has been agreed.

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

Summary

On the basis of all the 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.

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



Yours faithfully

Coupon-mad

I would say points 1 and 2 are good but points 3 and 4 need work. Not much work but they need more to make them possibly winning points. And you've accidentally emboldened point #4 in the first headings, so un-bold that bit near the top.

So point 3 isn't right because the POFA 2012 says nowt about Letters before Action. However, it does say exactly what the first letter they send a keeper has to contain, if they are to establish keeper liability. That letter in June should have been a Notice to Keeper and it needed to fulfil the requirements in paragraph 8 of the POFA 2012 Schedule 4. Something called a 'Formal demand' received over two months after the parking event, is not only too late (must have arrived by day 57) but no doubt it's not worded to comply, either!

So have a look at paragraph 8 here (surprisingly perhaps, many Acts like this one are easily set out in simple, understandable bullet points so don't be put off):

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

...and see the parts of para 8 to quote, that a NTK MUST have - simply tell POPLA that the first letter was called a Formal Demand (highly misleading) and arrived too late for keeper liability and then list what it MUST say from paragraph 8 of Schedule 4 of the POFA, commenting in bold next to each point what is wrong or missing. A flawed NTK means a keeper wins the appeal, a slam dunk winning appeal point so spend a bit of time on it!

As for point #4 re signage, it's a bit wasted the way you've written it and you need to just copy a fuller point about 'unclear signage that you will see in every POLA example linked in the newbies thread. Yep we know they had signs up (they have to). Doesn't make them clear, doesn't mean the driver saw them and read them, etc.

g1000

Here goes again, I'm struggling a bit with point 3 - Although the first letter I received was entitled 'Letter before Action' 15/07/14 they enclosed another letter entitled 'Formal Demand' which they claim to have sent on 16/06/2014 (bang on 58 days). Reading POFA I think it states that an assumption will be made that this original letter will have arrived so I have concentrated on other points. Do you think I stand a good chance with POPLA?

POPLA Reference Number:
Vehicle Reg:
PPC: Ethical Parking Management
PCN Ref:
Date of PCN:

I, as the registered keeper received an invoice from Ethical Parking Management (referred to hereafter as EPM) requiring payment of a charge of £100 for the alleged contravention of parking without displaying a valid permit at Angmering on Sea Estate, East Preston.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. Flawed notice to keeper.
4. No contract between driver/Inadequate signage

1. Charge not a genuine pre-estimate of loss

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 / Landholder. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
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.


The Amount of £100 demanded by EPM is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue. As parking in this car park costs nothing to residents or guests for the whole day, the amount of £100 demanded from EPM is extortionate. I request EPM to provide a full breakdown of how these costs are calculated. All these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of £100. Such a high demand is punitive and has an element of profit included that is not allowed to be imposed by parking companies.

The parking company may decide to include day to day running costs of the business (for example wages, uniforms, signage, maintenance costs) but these would have occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

Given that EPM charge the same lump sum however long the overstay, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event

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:

''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”.

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.''

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

2. No authority to levy charges

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf and enforce for breach of contract. EPM must either produce evidence to demonstrate that it is the landowner/landholder or a contract that it has the authority of the landowner/landholder to issue charge notices at this location.
I believe there is no contract with the landowner/landholder and EPM which entitles EPM to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore I contend that EPM has no authority to issue charge notices.

I put EPM to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that EPM produce to POPLA the contemporaneous and unredacted contract between the landowner/landholder and EPM. Even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between EPM and the landowner/landholder and would contain nothing that EPM can lawfully use in their own name as a mere agent, that could impact on a third party customer.

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

3. Flawed Notice to keeper.

The first letter received from EPM was entitled ‘Formal Demand’, I argue that this is highly misleading and if I am to assume that this was intended as a notice to keeper then I believe that the notice is flawed.

In POFA 2012 Schedule 4 (Recovery of Unpaid Parking Charges) Section 8 it is stated that the Notice to keeper should include:

• state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f).

The formal demand which I received does not state that a notice to driver relating to the specific period of parking has been given and this is not repeated.

• 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…

The formal demand which I received does not state that the creditor does not know both the name and current address for service for the driver.

• identify the creditor and specify how and to whom payment or notification to the creditor may be made;

The formal demand which I received failed to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to EPM there is no specific identification of the Creditor who may, in law, be EPM or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.


The formal demand which I received states that failure to settle this ‘debt’ will result in a county court judgement being issued against me for a higher amount. This is misleading, I argue that this is a threat and the creditor can not decide on a county court judgement pre trial.

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

4. No contract between driver/Inadequate signage


The BPA Code of Practice states at 18.1: “You must use signs to make it easy for them to find out what your terms and conditions are.”
At 18.3 it states: “Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”
The BPA Code of Practice further states under appendix B, entrance signage: “The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
The signs are small, unclear and mostly located well above head height or very low to the floor. There is a large amount of small print at the bottom of the signs which is a struggle to read, even when standing directly in front of them.

Signage in this car park does not comply with the BPA Code of Practice. It does not state to whom one would form a contract and therefore Ethical Parking Management have failed to form a contract with the driver. No contract has been agreed.

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

Summary

On the basis of all the 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.

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



Yours faithfully