Paid but still had a ticket

newcruiser

This is my second attempt at writing an appeal, I would appreciate your comments.

Dear POPLA
Premier Parking Solutions issued a parking charge notice of £100 on their usual excuse, i.e. 'no valid ticket or permit was displayed'. I am the registered keeper of the vehicle and this parking event as described did not occur and I am not liable for this PCN which also exceeds the appropriate amount.
These are my appeal grounds:

1. The intention of PPS' charge prior to this parking event was not based on any genuine pre-estimate of loss, rather they always intended it to be a tariff and told POPLA that as a fact just six months ago.They have now massaged their POPLA evidence now to manufacture a 'loss' statement.

2. The parking company has no contract with the landowner that permits them to pursue these charges through the courts in their own name.

3. The ticket was purchased and displayed at 08:40 but no parking charge was issued until 1800, over 9 hours later. Can PPS prove that no attendant visited the car park earlier that day.

4. The upright signage at the entrance and around the car park created no contract with the driver to 'continuously display' parking tickets.

5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required. PPS did not mitigate any 'loss'.

6. The contravention as described did not occur.

Here are my detailed appeal points:

1. The intention of PPS' charge prior to this parking event was not based on any genuine pre-estimate of loss, rather they intended it to be a tariff. They have massaged their POPLA evidence now to manufacture a 'loss' statement.
To quote Assessor Chris Adamson, from a POPLA decision v PPS:
''Reasons for the Assessor’s Determination
It is the Operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘No valid ticket or permit displayed’... The Operator submits that the charge is not a sum sought as damages, rather it is ‘an excess charge not a breach or a sum for damages’. Accordingly the Operator submits that it need not reflect the loss caused by the breach. In this case, I am not minded to accept this submission.

The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking. The Operator has submitted in the alternative that the sum, ‘if considered genuine pre-estimation of losses’ is based on a number heading related to direct loss. I do not accept this submission. Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made.Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits.

...It seems clear from the Operator evidence that, whilst its intentions were actually to charge a tariff, the signage displayed did not indicate this. It has not demonstrated that anything was being offered in return. Instead the wording of the sign indicates damages, although it does not appear that the Operator’s intentions when setting the level of the charge were to compensate for the loss estimated.Accordingly, I must allow the appeal.'' Chris Adamson, Assessor (Feb 2014).

The point I am making is that the suggestion that their charges are based on any loss is untrue because this was not their stated intention. But recently PPS have taken heed of the above decision, suddenly deciding to try their luck by pretending that their intention all along was to charge for loss. Even worse, this approach has fooled POPLA recently.

Their behaviour in misleading POPLA to try to gain pecuniary advantage against motorists who have paid the tariff is disingenuous, as is the ridiculously massaged 'loss statement' that they now suddenly use to try to magically meet the amount of the PCN. For example, staff wages/NI contributions are all tax-deductible costs of running a business and PPS staff are involved in other work, such as dealing with clients and permits. I put PPS to strict proof otherwise as regards these imaginary staff - including senior management - spending hours only on POPLA appeals. To suggest that managers and directors would spend even an hour on each POPLA case is simply not realistic, there would not be enough hours in the day for the business to operate this way. There are too many layers of repeated checks to be credible. In 1771674002 on 18/8/14, POPLA Assessor Shehla Pirwany commented when upholding an appeal:

''The Operator has submitted a breakdown of the losses incurred as a result of the breach and a large percentage of the amount comes from staff costs. Whilst staff costs may fall within a genuine pre estimate of loss, in this case, there appear to be several layers of checks on the work of other staff members. There appear to be an unnecessary amount of checks and on balance, I am not satisfied that the Operator has sufficiently shown that the items referred to are substantially linked to the loss incurred by the breach. As a result, I need not decide any other issues raised by the Appellant. Accordingly, this appeal must be allowed.''

Further, POPLA related 'work' cannot apply to each PCN as a 'genuine pre-estimate', because only 2% of cases ever get to POPLA stage. Such heads of cost cannot flow as a genuine pre-estimate of loss to work out the charge for every PCN when the vast majority will never to go to POPLA. This is the same situation as cases where Operators add 'debt collection' costs which POPLA routinely dismiss on the basis that 'cases may never get to debt collection stage so this is not applicable'. The other 'business costs' (including over £70 in Management wages and a fiver for the DVLA look-up that in fact costs £2.50) cannot be added on as they are not consequential to any genuine initial loss flowing from all typical PCNs.

As PPS have since changed their GPEOL calculations from the version presented to the POPLA Assessors just a few months ago, then I contend that the calculation still fails as it is not a genuine PRE-estimate and in fact is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 Annual Report the Lead Adjudicator, Mr Greenslade, 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."

2. The parking company has no contract with the landowner that permits them to pursue these charges through the courts in their own name.
I require the parking company to produce an unredacted copy of the contract with the landowner.I believe they have no locus standi to pursue the matter in the courts nor to form contracts with drivers in their own right. I contend that PPS are merely a commercial agent acting on behalf of the true principal and have a bare licence to 'issue tickets' which gives them no standing to pursue this matter. Halsbury (on Agency at 157) says the wording "on behalf of" is "conclusive when qualifying the signature to negative responsibility of the signatory as principal whether the identity of the actual principal is disclosed or not".

I will not accept the usual PPS 'witness statement' as it does not refute the points I have raised and the following issues would also be hidden:

- what the restrictions are as stated in the contract
- whether PPS are an agent acting with negative responsibility and standing
- the site boundary and scope of the operation
- what the charges are for each alleged contravention
- specific dates & details of the contract

I confirm that I will not post their contract on the internet so this Operator cannot justify withholding it. To be clear, I require the contract itself, unredacted, because I am NOT querying the mere right to 'issue tickets' - which anyone could do, even the car park cleaning contractors and obviously they would not have any locus standi either.
3. PPS must keep logs as to which car parks and when their attendants have visited each day, I would require the parking company to produce proof that the car park was not visited between the hours of 0840 and 1800 on the day in question. I submit that there was visit by the attendant who would have seen the ticket with proof that the fee had been paid.
4. The upright signage at the entrance and around the car park created no contract with the driver to 'continuously display' a parking ticket.
The Operator must prove that the driver actually saw, read and accepted terms to 'continuously display' a P&D ticket, even in the driver's absence many hours after parking. My contention is that all signage likely to have been seen before parking does not communicate that specific contractual requirement. On the main banner and entrance sign (arguably the most important one which could form a contract BEFORE parking) it specifically says:
'All vehicles must pay and display or have a valid permit'
http://s1284.photobucket.com/user/ho...tml?sort=3&o=5

Well, quite apart from the fact it's not possible to comply with that instruction - because a vehicle can't 'pay' or 'display' as it's an inanimate object - this entrance sign creates no obligation at all on any driver to do anything. That signs clearly says it is enough to 'HAVE' a valid permit and not necessarily to display it at all, let alone where and how and whether it must be 'continuous' display. There is also nothing in view at the entrance which warns of any PCN risk so the driver cannot have consented to any contract in seeing that welcoming blue/white car park sign, and making the decision to park:

http://s1284.photobucket.com/user/ho...tml?sort=3&o=4

http://s1284.photobucket.com/user/ho...tml?sort=3&o=3

There is nothing to suggest the driver saw any other signs at all, so would not have entered into any contractual agreement. If they drove in through that entrance shown with just the 'pay and display' yellow sign then they would not have read any terms at all, since there are none there.

5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required. PPS did not mitigate any 'loss'.
A payment for parking was made for the time the vehicle was located in the parking bay, and the ticket was displayed on the dashboard. Adverse weather conditions at the time may have caused the ticket to slip, but equally it would have been 'easy' for their operative to have caused the issue when leaning close to the car; PPS and Valley Enforcement being well used to 'moving' cars in the not-too-distant past.
There is no reasonable justification to expect a motorist to be able to - in their absence - continually display for nine hours, a very flimsy ticket on a dashboard and yet provide no means to attach them securely at a very windy site.
Plymouth City Council use tickets with an adhesive label to stick the ticket to the windscreen or dashboard.

It is not enough for PPS to say that these tickets are 'industry standard' when they are clearly not fit for purpose at this particular site.There has been no loss incurred and PPS made no attempt to mitigate their 'loss' by (for example) making the tickets adhesive or for the operative to check the P&D ticket sooner, because when it was left the driver contends it was fully displayed and in fact never fell out of view. The attendant could see the ticket in the car which had apparently mysteriously 'moved a bit' and yet PPS will no doubt claim they 'thought there was an initial loss'(!). PPS know full well there is no loss in a case where they can see the P&D ticket which has a code on it which tallies with that day's tickets issued from the machine. They have an attendant on site so the records are easily checked to ensure there is no 'double use' of the same coded ticket (e.g. by two cars). Such simple checks would immediately show the ticket with that code was valid for that day and would mitigate any loss in pointlessly pursuing another victim.

6. The contravention as described did not occur
It is also a fact - proved by PPS' own photos - that this contravention 'no valid ticket was displayed' did not occur. A valid ticket was displayed, so there cannot have been NO ticket. If PPS wanted to have a contravention for allegedly not being able to read the entire displayed ticket then they needed a Notice to Keeper which said 'pay and display ticket not correctly displayed' or similar clear wording in order to attempt to comply with the POFA which says a ticket has to set out the reason why the charge has arisen and state any unpaid parking fees. The doctrine of contra proferentem applies and the interpretation that most favours the consumer would be that this allegation as described in the document as drafted, did not happen.

This concludes my appeal.

prowla

Incidentally, I now keep a clothes peg in the car, which I use to make sure the ticket stays in a visible place on the dashboard; other people have been known to use cassette cases & suchlike.

Coupon-mad

I keep a small blob of blutack in the car to make sure any ticket stays on the dash the right way up.

And all I would suggest is have another look at the appeal I posted in post #6 as I have tweaked it last week, since I posted it (this is the example I think I have linked in the Newbies thread). It's just that I have made the heading of point #1 longer and added even more to it (the Ricky Powell POPLA decision from the other day where he sussed PPS and deducted the £71 from the calculation is well worth including!).

Also I can't recall whether I changed the words to the other points a bit so have another compare between yours and the one in post #6 now with fresh eyes over the weekend. IMHO the 'no GPEOL' argument for PPS needs to be long and detailed to knock all their arguments into touch!

I guess as you appealed early you gave away who was driving (did you?) so cannot use anything about the POFA 2012 re keeper liability?

newcruiser

Yes, when I returned to my car my windscreen was covered in bird mess and I assumed that the pps operator had not seen my ticket. I was so confident that this would be a "mitigating circumstance" that I appealed stating that I had paid for a ticket, although I did not admit I was the driver. As it turned out in pps photograph the ticket could be seen although it had slipped.

newcruiser

Thanks Coupon- mad I have taken your advice and rewritten section 1, I do not suppose I could use POFA 2012 I did not admit to being the driver but I said I placed the ticket.

Dear POPLA
Premier Parking Solutions issued a parking charge notice of £100 on their usual excuse, i.e. 'no valid ticket or permit was displayed'. I am the registered keeper of the vehicle and this parking event as described did not occur and I am not liable for this PCN which also exceeds the appropriate amount.
These are my appeal grounds:

1. The intention of PPS' charge prior to this parking event was not based on any genuine pre-estimate of loss, rather they always intended it to be a tariff and told POPLA that as a fact just six months ago.They have now massaged their POPLA evidence now to manufacture a 'loss' statement.

2. The parking company has no contract with the landowner that permits them to pursue these charges through the courts in their own name.

3. The ticket was purchased and displayed at 08:40 but no parking charge was issued until 1800, over 9 hours later. Can PPS prove that no attendant visited the car park earlier that day.

4. The upright signage at the entrance and around the car park created no contract with the driver to 'continuously display' parking tickets.

5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required. PPS did not mitigate any 'loss'.

6. The contravention as described did not occur.

Here are my detailed appeal points:

1. The intention of PPS' charge was not based on any advance regard to genuine pre-estimate of loss, rather they intended it to be a tariff. They have massaged their POPLA evidence now to manufacture a 'loss' statement which duplicates layers of staff time, includes double counting and is not applicable to 98% of PCNs. It is at best, a crude calculation of the actual loss suffered, made afterwards.
To quote Assessor Chris Adamson, from a very similar POPLA decision v PPS which shows their true intentions behind their charges, earlier in 2014:
''... ‘No valid ticket or permit displayed’... The Operator submits that the charge is not a sum sought as damages, rather it is ‘an excess charge not a breach or a sum for damages’. Accordingly the Operator submits that it need not reflect the loss caused by the breach. In this case, I am not minded to accept this submission. The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking. The Operator has submitted in the alternative that the sum, ‘if considered genuine pre-estimation of losses’ is based on a number heading related to direct loss. I do not accept this submission. Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made.Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits.

...It seems clear from the Operator evidence that, whilst its intentions were actually to charge a tariff, the signage displayed did not indicate this. It has not demonstrated that anything was being offered in return. Instead the wording of the sign indicates damages, although it does not appear that the Operator’s intentions when setting the level of the charge were to compensate for the loss estimated. Accordingly, I must allow the appeal.'' Chris Adamson, Assessor (Feb 2014).

I have found another recent POPLA case v PPS which gives the game away about PPS' true intentions in advance. This was POPLA decision reference 6860024043 in February 2014, when Assessor Nozir Uddin decided to allow the appeal on the basis that the Operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss. This was because PPS' intentions prior to parking charges being issued at that site, were stated to be that the charge was 'a sum in the nature of a contractual fee rather than a sum for the breach of it'. And yet the signage and rejection letter gave away the fact it was really a matter of breach of contract which required a GPEOL. In that case, PPS tried to argue both scenarios - which cannot be allowed, they cannot say it was either one or the other depending upon which suits. So in order to show what PPS' real intentions were for their charges, prior to my vehicle being parked at this site, here are some excerpts from PPS' statement regarding POPLA case 6860024043:
''The amount sought as a PCN is a term of the contract rather than a sum for the breach of it. This contractual agreement is clearly worded on our warning signage.''
''With regards to the claim that there has been no loss suffered by the company, we consider the amount on the PCN as a reasonable charge and as part of a contractual agreement. ''

So PPS' stated intentions earlier this year were that the charges making up PCNs of £100 issued at Didcot Station car park, were designed to be a contractual fee; a sum in the nature of a parking charge. The blue sign lists certain fees under the heading 'tariff' and £100 is not one of them. However, I have no idea from the Notice to Keeper how much of the tariff remained unpaid (if at all). This small sum, or a percentage of it, would be the only 'contractual sum' in the alleged contract which can represent consideration. A PCN for £100 is not recoverable in this instance, however PPS try to slant the calculations.

The point I am making is that the suggestion that their charges are based on any loss is untrue because this was not their stated intention in advance. But recently PPS have decided to try their luck by pretending that their intention all along was to charge for loss. Even worse, this approach fooled POPLA on at least two occasions until robust appeals exposing the truth achieved a more measured view, as in POPLA code 6861754004 (PPS again) where Assessor Ricky Powell noticed the heavily duplicated and frankly ridiculous staffing costs:

''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

It seems to me that PPS have tried to mislead POPLA to gain pecuniary advantage against motorists who have all paid the tariff and can prove it. This is unsupportable and unprofessional, as is the massaged 'loss statement' that they now suddenly use to try to magically meet the sum of the PCN. In simple terms:

- PPS must think I was born yesterday if they think I believe that they 'thought there was an initial loss' when yet another of PPS' extra-flimsy tickets slipped.
- It beggars belief that managers and directors would spend hours on each POPLA case. There are too many layers of repeated checks by highly paid staff to be credible.
- PPS use a template POPLA 'GPEOL' summary & response so it is not individually written nor even applicable to my own case at all.
- staff/NI are all tax-deductible costs of running a business and do not directly flow from one alleged breach in a car park where there was no initial loss.
- PPS staff do not just handle appeals, their work includes dealing with clients/permits, and Directors have supervisory/staffing/new business and Management duties so I am not liable to pay their wages nor to line the pockets of PPS owner with yet more profits. The sum of £71.65 is laughable in their GPEOL statement.
- POPLA related 'work' cannot apply to each PCN as a 'genuine pre-estimate', because only 1% or 2% of cases ever get to POPLA stage.
- Since the vast majority will never to go to appeal, let alone as far as POPLA, this is comparable to cases where Operators add 'debt collection' costs. In those cases, POPLA routinely dismiss those heads on the basis that 'cases may never get to debt collection stage so this is not applicable'. The same applies to 'POPLA costs'.
- If I had not appealed at all, instead paying between day 14 and day 28 then the full cost of the PCN would have applied. Why? How does PPS' GPEOL explain that?
- The other 'business costs' (including a DVLA fee that in fact costs £2.50 and stationery/postage) cannot be added since this does not flow from all PCNs.

Where an Operator has submitted a breakdown of the losses incurred as a result of the breach and a large percentage of the amount comes from staff costs, they must be able to justify those heads as relating to every typical PCN (whether appealed or not). In the case of PPS they include several layers of checks on the work of other staff members - I would contend this is an unnecessary amount of checks and that the Operator has not shown that the items referred to are substantially linked to the loss incurred by every breach.

Indeed, in the 2014 Annual Report the Lead Adjudicator, Mr Greenslade, 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."

As PPS have since changed their GPEOL calculations from the version presented to POPLA Assessors just a few months ago, then I contend that the calculation (even if it were a more credible effort than this one) must fail as it is not a genuine PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge. As such, the latest effort by PPS is disingenuous and is merely an over-inflated and duplicated new 'calculation of alleged actual loss, made afterwards'. It is not enforceable according to the words of Mr Greenslade.

2. The parking company has no contract with the landowner that permits them to pursue these charges through the courts in their own name.
I require the parking company to produce an unredacted copy of the contract with the landowner.I believe they have no locus standi to pursue the matter in the courts nor to form contracts with drivers in their own right. I contend that PPS are merely a commercial agent acting on behalf of the true principal and have a bare licence to 'issue tickets' which gives them no standing to pursue this matter. Halsbury (on Agency at 157) says the wording "on behalf of" is "conclusive when qualifying the signature to negative responsibility of the signatory as principal whether the identity of the actual principal is disclosed or not".

I will not accept the usual PPS 'witness statement' as it does not refute the points I have raised and the following issues would also be hidden:

- what the restrictions are as stated in the contract
- whether PPS are an agent acting with negative responsibility and standing
- the site boundary and scope of the operation
- what the charges are for each alleged contravention
- specific dates & details of the contract

I confirm that I will not post their contract on the internet so this Operator cannot justify withholding it. To be clear, I require the contract itself, unredacted, because I am NOT querying the mere right to 'issue tickets' - which anyone could do, even the car park cleaning contractors and obviously they would not have any locus standi either.

3. PPS must keep logs as to which car parks and when their attendants have visited each day, I would require the parking company to produce proof that the car park was not visited between the hours of 0840 and 1800 on the day in question. I submit that there was visit by the attendant who would have seen the ticket with proof that the fee had been paid.

4. The upright signage at the entrance and around the car park created no contract with the driver to 'continuously display' a parking ticket.
The Operator must prove that the driver actually saw, read and accepted terms to 'continuously display' a P&D ticket, even in the driver's absence many hours after parking. My contention is that all signage likely to have been seen before parking does not communicate that specific contractual requirement. On the main banner and entrance sign (arguably the most important one which could form a contract BEFORE parking) it specifically says:
'All vehicles must pay and display or have a valid permit'
http://s1284.photobucket.com/user/ho...tml?sort=3&o=5

Well, quite apart from the fact it's not possible to comply with that instruction - because a vehicle can't 'pay' or 'display' as it's an inanimate object - this entrance sign creates no obligation at all on any driver to do anything. That signs clearly says it is enough to 'HAVE' a valid permit and not necessarily to display it at all, let alone where and how and whether it must be 'continuous' display. There is also nothing in view at the entrance which warns of any PCN risk so the driver cannot have consented to any contract in seeing that welcoming blue/white car park sign, and making the decision to park:

http://s1284.photobucket.com/user/ho...tml?sort=3&o=4

http://s1284.photobucket.com/user/ho...tml?sort=3&o=3

There is nothing to suggest the driver saw any other signs at all, so would not have entered into any contractual agreement. If they drove in through that entrance shown with just the 'pay and display' yellow sign then they would not have read any terms at all, since there are none there.

5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required. PPS did not mitigate any 'loss'.
A payment for parking was made for the time the vehicle was located in the parking bay, and the ticket was displayed on the dashboard. Adverse weather conditions at the time may have caused the ticket to slip, but equally it would have been 'easy' for their operative to have caused the issue when leaning close to the car; PPS and Valley Enforcement being well used to 'moving' cars in the not-too-distant past.
There is no reasonable justification to expect a motorist to be able to - in their absence - continually display for nine hours, a very flimsy ticket on a dashboard and yet provide no means to attach them securely at a very windy site.
Plymouth City Council use tickets with an adhesive label to stick the ticket to the windscreen or dashboard.

It is not enough for PPS to say that these tickets are 'industry standard' when they are clearly not fit for purpose at this particular site.There has been no loss incurred and PPS made no attempt to mitigate their 'loss' by (for example) making the tickets adhesive or for the operative to check the P&D ticket sooner, because when it was left the driver contends it was fully displayed and in fact never fell out of view. The attendant could see the ticket in the car which had apparently mysteriously 'moved a bit' and yet PPS will no doubt claim they 'thought there was an initial loss'(!). PPS know full well there is no loss in a case where they can see the P&D ticket which has a code on it which tallies with that day's tickets issued from the machine. They have an attendant on site so the records are easily checked to ensure there is no 'double use' of the same coded ticket (e.g. by two cars). Such simple checks would immediately show the ticket with that code was valid for that day and would mitigate any loss in pointlessly pursuing another victim.

6. The contravention as described did not occur
It is also a fact - proved by PPS' own photos - that this contravention 'no valid ticket was displayed' did not occur. A valid ticket was displayed, so there cannot have been NO ticket. If PPS wanted to have a contravention for allegedly not being able to read the entire displayed ticket then they needed a Notice to Keeper which said 'pay and display ticket not correctly displayed' or similar clear wording in order to attempt to comply with the POFA which says a ticket has to set out the reason why the charge has arisen and state any unpaid parking fees. The doctrine of contra proferentem applies and the interpretation that most favours the consumer would be that this allegation as described in the document as drafted, did not happen.

This concludes my appeal.

Coupon-mad

I would just remove this as it's about another car park and lends nothing to your appeal that's not already there:


So PPS' stated intentions earlier this year were that the charges making up PCNs of £100 issued at Didcot Station car park, were designed to be a contractual fee; a sum in the nature of a parking charge. The blue sign lists certain fees under the heading 'tariff' and £100 is not one of them. However, I have no idea from the Notice to Keeper how much of the tariff remained unpaid (if at all). This small sum, or a percentage of it, would be the only 'contractual sum' in the alleged contract which can represent consideration. A PCN for £100 is not recoverable in this instance, however PPS try to slant the calculations.

newcruiser

Thanks Coupon-mad
Unless I hear from you today, I will send my appeal tomorrow

Dear POPLA
Premier Parking Solutions issued a parking charge notice of £100 on their usual excuse, i.e. 'no valid ticket or permit was displayed'. I am the registered keeper of the vehicle and this parking event as described did not occur and I am not liable for this PCN which also exceeds the appropriate amount.
These are my appeal grounds:

1. The intention of PPS' charge prior to this parking event was not based on any genuine pre-estimate of loss, rather they always intended it to be a tariff and told POPLA that as a fact just six months ago.They have now massaged their POPLA evidence now to manufacture a 'loss' statement.

2. The parking company has no contract with the landowner that permits them to pursue these charges through the courts in their own name.

3. The ticket was purchased and displayed at 08:40 but no parking charge was issued until 1800, over 9 hours later. Can PPS prove that no attendant visited the car park earlier that day.

4. The upright signage at the entrance and around the car park created no contract with the driver to 'continuously display' parking tickets.

5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required. PPS did not mitigate any 'loss'.

6. The contravention as described did not occur.

Here are my detailed appeal points:
1. The intention of PPS' charge was not based on any advance regard to genuine pre-estimate of loss, rather they intended it to be a tariff. They have massaged their POPLA evidence now to manufacture a 'loss' statement which duplicates layers of staff time, includes double counting and is not applicable to 98% of PCNs. It is at best, a crude calculation of the actual loss suffered, made afterwards.
To quote Assessor Chris Adamson, from a very similar POPLA decision v PPS which shows their true intentions behind their charges, earlier in 2014:
''... ‘No valid ticket or permit displayed’... The Operator submits that the charge is not a sum sought as damages, rather it is ‘an excess charge not a breach or a sum for damages’. Accordingly the Operator submits that it need not reflect the loss caused by the breach. In this case, I am not minded to accept this submission. The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking. The Operator has submitted in the alternative that the sum, ‘if considered genuine pre-estimation of losses’ is based on a number heading related to direct loss. I do not accept this submission. Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made.Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits.

...It seems clear from the Operator evidence that, whilst its intentions were actually to charge a tariff, the signage displayed did not indicate this. It has not demonstrated that anything was being offered in return. Instead the wording of the sign indicates damages, although it does not appear that the Operator’s intentions when setting the level of the charge were to compensate for the loss estimated. Accordingly, I must allow the appeal.'' Chris Adamson, Assessor (Feb 2014).

I have found another recent POPLA case v PPS which gives the game away about PPS' true intentions in advance. This was POPLA decision reference 6860024043 in February 2014, when Assessor Nozir Uddin decided to allow the appeal on the basis that the Operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss. This was because PPS' intentions prior to parking charges being issued at that site, were stated to be that the charge was 'a sum in the nature of a contractual fee rather than a sum for the breach of it'. And yet the signage and rejection letter gave away the fact it was really a matter of breach of contract which required a GPEOL. In that case, PPS tried to argue both scenarios - which cannot be allowed, they cannot say it was either one or the other depending upon which suits. So in order to show what PPS' real intentions were for their charges, prior to my vehicle being parked at this site, here are some excerpts from PPS' statement regarding POPLA case 6860024043:
''The amount sought as a PCN is a term of the contract rather than a sum for the breach of it. This contractual agreement is clearly worded on our warning signage.''
''With regards to the claim that there has been no loss suffered by the company, we consider the amount on the PCN as a reasonable charge and as part of a contractual agreement. ''

The point I am making is that the suggestion that their charges are based on any loss is untrue because this was not their stated intention in advance. But recently PPS have decided to try their luck by pretending that their intention all along was to charge for loss. Even worse, this approach fooled POPLA on at least two occasions until robust appeals exposing the truth achieved a more measured view, as in POPLA code 6861754004 (PPS again) where Assessor Ricky Powell noticed the heavily duplicated and frankly ridiculous staffing costs:

''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

It seems to me that PPS have tried to mislead POPLA to gain pecuniary advantage against motorists who have all paid the tariff and can prove it. This is unsupportable and unprofessional, as is the massaged 'loss statement' that they now suddenly use to try to magically meet the sum of the PCN. In simple terms:

- PPS must think I was born yesterday if they think I believe that they 'thought there was an initial loss' when yet another of PPS' extra-flimsy tickets slipped.
- It beggars belief that managers and directors would spend hours on each POPLA case. There are too many layers of repeated checks by highly paid staff to be credible.
- PPS use a template POPLA 'GPEOL' summary & response so it is not individually written nor even applicable to my own case at all.
- staff/NI are all tax-deductible costs of running a business and do not directly flow from one alleged breach in a car park where there was no initial loss.
- PPS staff do not just handle appeals, their work includes dealing with clients/permits, and Directors have supervisory/staffing/new business and Management duties so I am not liable to pay their wages nor to line the pockets of PPS owner with yet more profits. The sum of £71.65 is laughable in their GPEOL statement.
- POPLA related 'work' cannot apply to each PCN as a 'genuine pre-estimate', because only 1% or 2% of cases ever get to POPLA stage.
- Since the vast majority will never to go to appeal, let alone as far as POPLA, this is comparable to cases where Operators add 'debt collection' costs. In those cases, POPLA routinely dismiss those heads on the basis that 'cases may never get to debt collection stage so this is not applicable'. The same applies to 'POPLA costs'.
- If I had not appealed at all, instead paying between day 14 and day 28 then the full cost of the PCN would have applied. Why? How does PPS' GPEOL explain that?
- The other 'business costs' (including a DVLA fee that in fact costs £2.50 and stationery/postage) cannot be added since this does not flow from all PCNs.

Where an Operator has submitted a breakdown of the losses incurred as a result of the breach and a large percentage of the amount comes from staff costs, they must be able to justify those heads as relating to every typical PCN (whether appealed or not). In the case of PPS they include several layers of checks on the work of other staff members - I would contend this is an unnecessary amount of checks and that the Operator has not shown that the items referred to are substantially linked to the loss incurred by every breach.

Indeed, in the 2014 Annual Report the Lead Adjudicator, Mr Greenslade, 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."

As PPS have since changed their GPEOL calculations from the version presented to POPLA Assessors just a few months ago, then I contend that the calculation (even if it were a more credible effort than this one) must fail as it is not a genuine PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge. As such, the latest effort by PPS is disingenuous and is merely an over-inflated and duplicated new 'calculation of alleged actual loss, made afterwards'. It is not enforceable according to the words of Mr Greenslade.
2. The parking company has no contract with the landowner that permits them to pursue these charges through the courts in their own name.
I require the parking company to produce an unredacted copy of the contract with the landowner.I believe they have no locus standi to pursue the matter in the courts nor to form contracts with drivers in their own right. I contend that PPS are merely a commercial agent acting on behalf of the true principal and have a bare licence to 'issue tickets' which gives them no standing to pursue this matter. Halsbury (on Agency at 157) says the wording "on behalf of" is "conclusive when qualifying the signature to negative responsibility of the signatory as principal whether the identity of the actual principal is disclosed or not".

I will not accept the usual PPS 'witness statement' as it does not refute the points I have raised and the following issues would also be hidden:

- what the restrictions are as stated in the contract
- whether PPS are an agent acting with negative responsibility and standing
- the site boundary and scope of the operation
- what the charges are for each alleged contravention
- specific dates & details of the contract

I confirm that I will not post their contract on the internet so this Operator cannot justify withholding it. To be clear, I require the contract itself, unredacted, because I am NOT querying the mere right to 'issue tickets' - which anyone could do, even the car park cleaning contractors and obviously they would not have any locus standi either.
3. PPS must keep logs as to which car parks and when their attendants have visited each day, I would require the parking company to produce proof that the car park was not visited between the hours of 0840 and 1800 on the day in question. I submit that there was visit by the attendant who would have seen the ticket with proof that the fee had been paid.
4. The upright signage at the entrance and around the car park created no contract with the driver to 'continuously display' a parking ticket.
The Operator must prove that the driver actually saw, read and accepted terms to 'continuously display' a P&D ticket, even in the driver's absence many hours after parking. My contention is that all signage likely to have been seen before parking does not communicate that specific contractual requirement. On the main banner and entrance sign (arguably the most important one which could form a contract BEFORE parking) it specifically says:
'All vehicles must pay and display or have a valid permit'
http://s1284.photobucket.com/user/ho...tml?sort=3&o=5

Well, quite apart from the fact it's not possible to comply with that instruction - because a vehicle can't 'pay' or 'display' as it's an inanimate object - this entrance sign creates no obligation at all on any driver to do anything. That signs clearly says it is enough to 'HAVE' a valid permit and not necessarily to display it at all, let alone where and how and whether it must be 'continuous' display. There is also nothing in view at the entrance which warns of any PCN risk so the driver cannot have consented to any contract in seeing that welcoming blue/white car park sign, and making the decision to park:

http://s1284.photobucket.com/user/ho...tml?sort=3&o=4

http://s1284.photobucket.com/user/ho...tml?sort=3&o=3

There is nothing to suggest the driver saw any other signs at all, so would not have entered into any contractual agreement. If they drove in through that entrance shown with just the 'pay and display' yellow sign then they would not have read any terms at all, since there are none there.

5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required. PPS did not mitigate any 'loss'.
A payment for parking was made for the time the vehicle was located in the parking bay, and the ticket was displayed on the dashboard. Adverse weather conditions at the time may have caused the ticket to slip, but equally it would have been 'easy' for their operative to have caused the issue when leaning close to the car; PPS and Valley Enforcement being well used to 'moving' cars in the not-too-distant past.
There is no reasonable justification to expect a motorist to be able to - in their absence - continually display for nine hours, a very flimsy ticket on a dashboard and yet provide no means to attach them securely at a very windy site.
Plymouth City Council use tickets with an adhesive label to stick the ticket to the windscreen or dashboard.

It is not enough for PPS to say that these tickets are 'industry standard' when they are clearly not fit for purpose at this particular site.There has been no loss incurred and PPS made no attempt to mitigate their 'loss' by (for example) making the tickets adhesive or for the operative to check the P&D ticket sooner, because when it was left the driver contends it was fully displayed and in fact never fell out of view. The attendant could see the ticket in the car which had apparently mysteriously 'moved a bit' and yet PPS will no doubt claim they 'thought there was an initial loss'(!). PPS know full well there is no loss in a case where they can see the P&D ticket which has a code on it which tallies with that day's tickets issued from the machine. They have an attendant on site so the records are easily checked to ensure there is no 'double use' of the same coded ticket (e.g. by two cars). Such simple checks would immediately show the ticket with that code was valid for that day and would mitigate any loss in pointlessly pursuing another victim.

6. The contravention as described did not occur
It is also a fact - proved by PPS' own photos - that this contravention 'no valid ticket was displayed' did not occur. A valid ticket was displayed, so there cannot have been NO ticket. If PPS wanted to have a contravention for allegedly not being able to read the entire displayed ticket then they needed a Notice to Keeper which said 'pay and display ticket not correctly displayed' or similar clear wording in order to attempt to comply with the POFA which says a ticket has to set out the reason why the charge has arisen and state any unpaid parking fees. The doctrine of contra proferentem applies and the interpretation that most favours the consumer would be that this allegation as described in the document as drafted, did not happen.

This concludes my appeal.

newcruiser

I have had a reply from POPLA and have to wait until October for a decision

Dee140157

Look forward to see a winning decision in October

newcruiser

My appeal has been refused, is there anything else I can do other than paying £100.