parking appeal

nikkimaisy

got a query about 'parking period' our ntk states "time of incident" and gives 10:30:33, does this count as a parking period or can I claim this is invalid?
also my son claims there was no notice on his windscreen, the ntk was the first he knew about it, anything we can do about that? I have done the first appeal (rejected of course) and now want to do the POPLA appeal.
thanks in advance

Redx

these invoices are valid for 6 years so not invalid unless a judge declared it invalid

it may help to use errors etc in a popla appeal but its more important to use the legal arguments used in 100% of successful popla appeals

so now concentrate on the actual popla appeal and add any errors to it in the latter half of that appeal

these errors dont negate the appeal so dont expect to quash it on a technicality like a council ticket

Dee140157

If it was a camera controlled car park then the NTK would be the first you hear of it. That is quite normal.

Even in the case of windscreen tickets, it may still be the first you hear of it. This could be because
A) no windscreen ticket was actually issued
someone removed the windscreen ticket (be it the parking operative after it was placed there or some other random member of the public)
C) your son is being economic with the truth.

All of the above are equally possible from my viewpoint. However only you can know of point c) is likely or not. But a & b are also very possible!

Coupon-mad

You haven't said which PPC which can make a difference to your approach and which template POPLA appeal to use. Check out 'How to win at POPLA' and the linked examples in post #3 of the Newbies thread.

nikkimaisy

its CP Plus. their ntk says ticket was affixed to car.

Coupon-mad

OK so partly use as your base for your draft, the CP Plus version in the link to POPLA appeals in post #3 of the newbies thread (as it's a new example) but remove any points about MSA, Services, Government rules & ANPR cameras. And you would have to change the criticisms of the NTK to instead quote paragraph 8 of the POFA, not paragraph 9, which is only for postal PCNs. Read a few other windscreen ticket versions in the link as well, in post #3 of the newbies thread, to find a windscreen ticket one where paragraph 8 specifically, is quoted.

You say you got a 'NTK' but IMHO it's a letter from TNC isn't it, because CP Plus don't have a NTK except for where there was no windscreen ticket and they are known to farm their cases straight out to TNC to 'handle'. TNC letters are badly non-compliant so do take time to compare that letter to what they should have said in a NTK under paragraph 8.

nikkimaisy

thank you for all your help.
sorry to go on but I am really struggling with this, especially all the legal stuff.
I went and looked at the car park sign today, the only thing it says is 'all students (its a college car park) must park in a designated bay and pay and display a valid ticket and and a permit to park'
and "if you park you agree to pay a Parking Charge Notice if you fail to display a valid permit and/or pay and display ticket or park outside a designated parking bay a charge notice will be issued. "
then in red capitals "parking charge notice:charge from £50 -£70"

the cost of parking correctly is £2.20 a day with permit etc.
can i appeal on GEOPL ?and any grounds on sign?
they are now saying it is £90 as not paid within 28 days

the ntk we received appears all correct (i have checked on these threads)

I will use the appeal on grounds of CP Plus being a "mere agent with negative responsibility for customers on this private land" if you think that is appropriate?

Can I also make any point about 'the driver' not having seen any ticket on windscreen and no evidence put forward that it was, if so is there a particular legal way of putting this?

thank you so much for all your input


from a worried Mum

Dee140157

There really is no need to worry!

As Coupon-Mad said, go to post 3 and follow her instructions carefully.
Copy a draft onto here when you think you have done what she said and we will make sure any corrections that end to happen do.

It just requires a small amount of work, which to be honest your son should be able to do since he got the charge for you!

The forum has a fabulous success rate at POPLA, basically 100% so there really is no need to worry.

Coupon-mad

can i appeal on GEOPL ?and any grounds on sign?

Yes and yes, always both, they are standard winning points for POPLA, why do you think the GPEOL point in the example for CP Plus is so long and detailed?!

nikkimaisy wrote: »

the ntk we received appears all correct (i have checked on these threads)

Surely not. Show us both sides of it please - I can't believe a TNC notice to keeper is POFA compliant.

I will use the appeal on grounds of CP Plus being a "mere agent with negative responsibility for customers on this private land" if you think that is appropriate?

Not on its own - no - you WILL lose on that and if you try to argue there was never a PCN on the windscreen.

nikkimaisy

[IMG]http:///Users/Nikki/Pictures/iPhoto Library.photolibrary/Previews/2014/08/25/20140825-103856/wCfQ9MzOSKqQNYW7Qlfg8g/P1020299.JPG[/IMG]

right have done a lot of reading and a lot of copying and pasting! I have cobbled together a letter, would be very grateful for comments.
POPLA Reference Number:
Vehicle Reg:
Operator: CP Plus
PCN Ref:

As the registered keeper, I received an invoice from CP Plus. I appeal on the following grounds which are further detailed in the paragraphs below these four bullet points;

1. The charge and CP Plus' latest 'GPEOL statement' is not a genuine pre-estimate of loss.
2. No standing/authority to pursue charges in the courts - CP Plus are a mere agent with negative responsibility for customers on this private land.
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
4. Unclear and non-compliant signage created no contract with the driver.

************************************************** ************************

1. The charge and CP Plus' latest 'GPEOL statement' is not a genuine pre-estimate of loss.
The demand has no relationship to any genuine pre-estimate of loss that could have been suffered by the landowner or the Operator, flowing from an average PCN issued at that place. The tariff alone plus a fixed £2.50 to obtain keeper's data from the DVLA would be the only reasonable sum that an Operator can potentially claim as a typical sum of the heads of cost that actually arise in all cases. And that would only be possible if the driver has been fully informed of that sum, on very clear notices, in advance of parking.

The OFT warned the BPA that a charge for breach would still have to pass consumer law tests of fairness, transparency and that it must represent a genuine pre-estimate of loss.

Further, in order to try to justify their charges to POPLA as they were losing every case where an appellant said there was no GPEOL, I believe that CP Plus have significantly changed their GPEOL calculations from the version presented to POPLA Assessors earlier in 2014. I require CP Plus to explain the thinking behind their new calculations.

My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is merely a 'post-estimate' of (arguable) 'actual costs' after the event; figures designed to match the charge and which includes fully-counted man-hours for 'POPLA and appeal work' regarding this particular PCN when in fact, only 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate (whether appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. 2% of the time taken on an average POPLA appeal, since the vast majority of charges do not cause any such appeal work to be undertaken at all.

Indeed, in the 2014 Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If CP Plus present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the Operator's Senior Management team. How and when were these calculations made and on what basis? Bearing in mind how many of their cases actually go to POPLA, what steps were taken to account for the 98% which do not? I put CP Plus to strict proof that they had such a meeting and did factor in only a small (say 2%) pro-rata calculation of the staff costs of defending a POPLA appeal, due to the minuscule percentage of PCNs that invoke those costs.

If they cannot answer/show this - and if there was no meeting to set out the basis and reasoning behind the £90 charge - then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in case 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''

I contend that the figure of £90 is a penalty clause in terrorem to deter breach. Neither can it be commercially justified.

POPLA Assessor Chris Adamson has stated in June 2014 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 Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of 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.''

2. No standing/authority to pursue charges in the courts - CP Plus are a mere agent with negative responsibility for customers on this private land.
This Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, CP Plus must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. As a commercial site agent CP Plus has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I put CP Plus to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract with the landowner, which - to demonstrate standing and authority - must specifically state that CP Plus can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are, how much the charges are for various contraventions, etc. How will I know that the landholder contract allows CP Plus to charge £90 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that CP Plus can put up signs and 'issue parking charges' would not prove that this charge is covered within the contract nor will it show any standing of this site agent.




3. 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 incident” which I presume was the time of issue of an alleged PCN
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. No Creditor identified on the Notice to Keeper
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 CPPlus there is no specific identification of the Creditor who may, in law, be CPPlus 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.
POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. As I was not the driver myself, there is no case against me at all so it is, at best, surprising and irksome that CPPlus are pursuing this matter and wasting my time. I expect POPLA will see the significance of an operator trying to pursue a keeper, in a case where no keeper liability can be established by virtue of the operator's own failures.



4. Unclear and non-compliant signage created no contract with the driver.
This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not VCS' customers and are not parties of equal bargaining power, nor are they even aware that any 'contract' is possible. 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. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

nikkimaisy

have taken photos of sign and ntk but it won't let me post them. also i will change vcs to cpplus in last paragraph