Ethical Parking Management POPLA Appeal

Coupon-mad

This is still a problem in the draft: ''you've accidentally emboldened point #4 in the first headings, so un-bold that bit near the top.''

And I don't get why you think the Formal Demand (which was their version of a NTK and is hardly likely to be worded in compliance with paragraph 8 - you must have spotted omissions in wording) was received on time seeing as you have to receive it by day 57 for keeper liability?

And you've got his in there yet you are meant to only talk about parapraph 8 (not 9) if there was a windscreen ticket, as para 9 doesn't apply:

paragraph 9(2)(h) of Schedule 4

g1000

My maths was wrong with the dates and I agree that a formal demand received 59 days after the event shouldn't count as a NTK, hopefully I've put the point across. I've tried to include failures in the wording too...

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. Non compliant 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. Non compliant notice to keeper.

I have received no letter entitled Notice to Keeper and the first letter I received arrived was dated on the 16th of June, the windscreen ticket was left on the 19th of April so the first correspondence arrived 59 days after the window ticket was left.

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 makes no mention of to whom the creditor is.


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

g1000

And I have no idea why point 4 keeps coming out as bold, Iv'e changed it every time...

Coupon-mad

g1000 wrote: »

And I have no idea why point 4 keeps coming out as bold, Iv'e changed it every time...

It may be because the number 4 isn't in bold so you only need to highlight the words not the whole line including the 4 on the left...?

Anyway the only thing I would change now before you submit your POPLA appeal, is that I don't think a keeper should say that a PCN was issued on the car, so change the bits I have shown in red or remove them as shown:

' I have received no letter entitled Notice to Keeper and the first letter I received arrived was dated on the 16th of June , the windscreen ticket was left on the 19th of April so the first correspondence arrived 59 days after the window ticket was left. '

should be:

I have received no letter entitled Notice to Keeper and the first letter I received arrived on the 16th of June. The alleged parking event was stated as occurring on the 19th of April so the first correspondence arrived 59 days after that date. This is too late for invoking 'keeper liability' under the POFA 2012.