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POPLA Appeal - Advice
Duridge13
Posts: 3 Newbie
Hi,
Am preparing for a POPLA appeal and have been shamelessly cutting and pasting from this forum and from the pepipoo forum (Excel Parking lose at POPLA).
My significant other inputted the reg of our other car into a P&D machine at the Peel Centre and we subsequently received an NtK. Sent off an appeal (stupidly I sent it with the drivers name – hadn’t seen this forum at that point). Excel offered a cancelation charge if we provided supporting information. I refused; firstly we had a valid ticket albeit with a different reg, secondly I was not comfortable sending ownership information for our other car to Excel and thirdly did not want to give any money to these bunch of charlatans.
Within the POPLA appeal should I make reference to and justify why I did not accept the cancelation charge or should I stick to the main points within the typical POPLA appeals?
To pay it forward have added my POPLA appeal below. Additional text is as follows; 1. A statement about initial loss within the GPEOL section. This bit is only applicable if you have a valid ticket or were in a free car park and is from recent POPLA appeals. 2. A reference to the Home Office’s Guidance on ANPR Performance Assessment and Optimisation, which is written for commercial installers (and the police).
Thanks in advance.
*********
B. No initial loss or genuine pre-estimate of loss
The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contact. Accordingly the parking charge must be a Genuine Pre-estimate of Loss (GPEOL).
An initial loss must be shown in order for a charge to constitute a GPEOL. Once such a loss is shown, losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, an initial loss must be shown in order to claim costs in respect of them. The respondent should provide, to POPLA and the Appellant, evidence of this initial loss, which is to say a loss incurred prior to enforcement action.
The appellant contends that the charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel Parking Services Ltd must therefore be required to explain their 'charge' by providing POPLA with a Genuine Pre-estimate of Loss calculation. Excel Parking Services Ltd cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a likely loss resulting from all breaches of the alleged parking contract. Also, if Excel Parking Services Ltd include in their calculation any staff costs or time spent dealing with POPLA appeals or debt collection this must only be calculated on a very minimal pro-rata basis, since only a very small percentage of cases ever go to POPLA or to debt collection stage. Excel Parking Services Ltd cannot truthfully state that 'hours' are spent by various staff members in a team, on each and every PCN, because in the vast majority of cases the automated process (camera takes photos>PCN triggered automatically, most cases not even appealed) clearly involves very little back-office intervention. If only 2% of cases proceed to POPLA then only 2% of the costs of POPLA appeals could be factored into a genuine pre-estimate of loss relating to all PCNs. I contend that the figure of £100 is in fact a penalty and cannot therefore be a genuine pre-estimate of loss because Excel Parking Services Ltd cannot justify £100 for each and every PCN that they say flows directly from a typical parking event in breach.
In any case I believe Excel Parking Services Ltd are paid by the Peel Centre an annual sum to cover the signs, ticketing and ANPR cameras, etc. Therefore, this payment income must be balanced within the GPEOL breakdown Excel Parking Services Ltd supply otherwise it would be double accounting for the same expenses. The motorist is not responsible for Excel Parking Services Ltd costs already covered by the Peel Centre remuneration. The more Excel Parking Services Ltd re-write the GPEOL calculation (various numbered versions) the further away they must get from the calculation being viewed as a genuine pre-estimate. Nor can they argue long after the event of deciding these charges years ago, that suddenly the £100 is not a GPEOL after all, it is instead a 'commercially justified penalty' (as per ParkingEye v Beavis).
POPLA Assessor Chris Adamson has stated in June 2014 upon seeing a loss statement re-written again recently for Excel Parking Services Ltd and sister company VCS - their latest attempt to get around POPLA - 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 Excel Parking Services Ltd, 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.''
If Excel Parking Services Ltd have in 2014 changed their 'GPEOL calculations' from the version presented to the POPLA Assessor in the multiple times the notorious Peel Centre has cropped up at POPLA, then I contend that the calculation must fail as it is not a genuine PRE-estimate. A re-written calculation after the charges were set at this site, would be a 'post-estimate' after the event, showing figures conveniently calculated to match the charge. Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated this sort of calculation is not acceptable: “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."
Not withstanding all of the above the correct fee was paid for the time the car was parked in the car park, hence no initial loss.
C. Protection of Freedoms Act 2012 (the Act)
In order for any parking company to pursue keeper liability under the Protection of Freedoms Act 2012 (the Act) that parking company must have met the conditions in the Act. The conditions are set out in the sub paragraphs of the paragraphs in Schedule 4 of the Act. Excel Parking Services Ltd use ANPR for its enforcement, in which case the relevant conditions that it must meet are those in paragraph 9. That is to say, the whole of paragraph 9 as is evident from its introduction which reads:
“(2) The Notice must …specify…inform…describe…state that…warn…identify”.
All of which are mandatory requirements.
Within the Notice to Keeper (nor any other correspondence) sent by Excel Parking Services Ltd there is no information which states that any other person or organization is the creditor, as such the appellant must assume that they are the creditor, Excel Parking Services Ltd have provided nothing to legally substantiate that claim.
It is well known in previous appeals considered by POPLA that the respondent has failed to provide any evidence that it is the “creditor” entitled to recover monies from a driver.
The appellant contends that the NtK is not valid and so no keeper liability exists.
D. No breach of the advertised terms and conditions
The signage upon which the Respondent wishes to rely upon fails to meet the standard required by Regulation 7 of the Unfair Terms in Consumer Regulations 1999 and as such it cannot be relied upon to demand a Parking Charge. The appellant invites POPLA to read the sign and consider just what infringement actually causes a “Parking Charge” liability to arise.
The sign states that “Failure to comply with the following will result in a parking charge…” The sign then lists six acts that must be undertaken for that charge to arise. If the Respondent wishes to rely on just one of those acts to impose a Parking Charge then the sign should say “Failure to comply with any one of the following will result in a parking charge…”
POPLA will be aware that if there is any doubt as to the written terms of a contract then their interpretation will be one that is “most favourable to the consumer” under the aforementioned Regulations. On that basis, even if the vehicle had been parked for more than the stipulated time no liability arises. Accordingly, the Appellant requests that this appeal is supported.
E. No contractual authority
The respondent has not provided the appellant with any evidence that it is lawfully entitled to demand money from the driver as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. That is to say Excel Parking Services Ltd have not demonstrated, that it has legal capacity to enter into a contract with a driver of a vehicle in the Peel Centre car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver. The appellant believes that Excel Parking Services Ltd do not have the legal capacity to enforce such a charge.
Accordingly the respondent should be required to provide a copy (to both POPLA and the appellant) of:
1. Its unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included;
2. Evidence of the land ownership of the party with whom the Respondent has contracted; and
3. A Purchase Order incorporating this car park into that contract in the event that that contract is a framework agreement within the next fourteen days. In the alternative, if the respondent is the owner of the land then it should evidence that ownership within the same time period. If the Respondent is unable or unwilling to do so, then it should not be permitted to offer any evidence in this appeal.
The appellant believes that Excel Parking Services Ltd is an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel Parking Services Ltd to impact upon visiting drivers in their own right for their own profit, because they are agents acting on behalf of a named principal. For the avoidance of doubt, I will not accept a mere “witness statement” since a mere letter would fail to show any payments made between the parties, and would omit contraventions and restrictions and dates & details of all terms in the actual contract.
F. ANPR inaccuracy and non-compliance
BPA Code of Practice 21 Automatic number plate recognition (ANPR) contains the following:
“21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.”
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. The appellant requires that Excel Parking Services Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos. The appellant also requires that Excel Parking Services Ltd provides records as to dates and times of when the overall ANPR system were checked and maintained to ensure the accuracy of the recorded information.
In addition the appellant requires Excel Parking Services Ltd to provide records of training or certification to demonstrate that the persons who maintained the ANPR system were suitably trained and qualified.
There are no criteria defined within the BPA code of practice to what constitutes keeping ANPR cameras and their associated systems in good working order. As such the appellant refers the adjudicator to the Guidance on ANPR Performance Assessment and Optimisation, which is written for commercial installers and states in Section 5 - Regular Maintenance and System Checks: “Regular system checks….should be undertaken at least every 12 months….and this maintenance should be completed…by qualified staff.”
The above is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.
The lack of information about the use of data, is not compliant with the remainder of the BPA Code of Practice, Section 21. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every paragraph of section 21 is breached here. Unless Excel Parking Services Ltd can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the Information Commissioner’s Office (ICO) terms of registration and a breach of the Consumer Protection from Unfair Trading Regulations 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). Excel Parking Services Ltd is put to strict proof to the contrary.
G. Statement on the Appeal Process
Please note that the Appellant reserves the right to provide further representations in this appeal upon consideration of the evidence that has been requested. It is submitted that without such evidence the Appellant’s position is prejudiced by being unable to properly challenge the Respondent’s position.
POPLA is operated by the London Councils under a contract and has with it the BPA. As such it will be governed by the Human Rights Act and in particular Article 6. That article requires that an Appellant must have a real opportunity to present his or her case or challenge the case against them. This will require access to a Respondent’s submissions, procedural equality and generally requires access to evidence relied on by the other party.
H. The Appeal
1. There is no initial loss. A ticket for the correct amount was purchased and displayed for the time the car was parked;
2. The Respondent is in breach of the statutory requirements of Schedule 4, Protection of Freedoms Act 2012 and therefore cannot recover the alleged parking charge from the Appellant, who therefore has no liability for the parking charge;
3. The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge;
4. The respondent has provided insufficient evidence that the ANPR utilized to record the alleged infringement is accurate and compliant with the BPA Code of Practice; and
5. The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.
I respectfully request that this appeal be allowed. In the event that POPLA is minded not to grant the appeal then, because the Respondent has failed to provide any evidence of its entitlement to recover parking charges nor a breakdown of its actual losses which evidence the parking charge until this stage, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum.
Am preparing for a POPLA appeal and have been shamelessly cutting and pasting from this forum and from the pepipoo forum (Excel Parking lose at POPLA).
My significant other inputted the reg of our other car into a P&D machine at the Peel Centre and we subsequently received an NtK. Sent off an appeal (stupidly I sent it with the drivers name – hadn’t seen this forum at that point). Excel offered a cancelation charge if we provided supporting information. I refused; firstly we had a valid ticket albeit with a different reg, secondly I was not comfortable sending ownership information for our other car to Excel and thirdly did not want to give any money to these bunch of charlatans.
Within the POPLA appeal should I make reference to and justify why I did not accept the cancelation charge or should I stick to the main points within the typical POPLA appeals?
To pay it forward have added my POPLA appeal below. Additional text is as follows; 1. A statement about initial loss within the GPEOL section. This bit is only applicable if you have a valid ticket or were in a free car park and is from recent POPLA appeals. 2. A reference to the Home Office’s Guidance on ANPR Performance Assessment and Optimisation, which is written for commercial installers (and the police).
Thanks in advance.
*********
B. No initial loss or genuine pre-estimate of loss
The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contact. Accordingly the parking charge must be a Genuine Pre-estimate of Loss (GPEOL).
An initial loss must be shown in order for a charge to constitute a GPEOL. Once such a loss is shown, losses flowing from it may be claimed, but without such a loss that is not the case. Whilst the losses stated by the operator may well flow from a breach, an initial loss must be shown in order to claim costs in respect of them. The respondent should provide, to POPLA and the Appellant, evidence of this initial loss, which is to say a loss incurred prior to enforcement action.
The appellant contends that the charge of £100 is punitive and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Excel Parking Services Ltd must therefore be required to explain their 'charge' by providing POPLA with a Genuine Pre-estimate of Loss calculation. Excel Parking Services Ltd cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a likely loss resulting from all breaches of the alleged parking contract. Also, if Excel Parking Services Ltd include in their calculation any staff costs or time spent dealing with POPLA appeals or debt collection this must only be calculated on a very minimal pro-rata basis, since only a very small percentage of cases ever go to POPLA or to debt collection stage. Excel Parking Services Ltd cannot truthfully state that 'hours' are spent by various staff members in a team, on each and every PCN, because in the vast majority of cases the automated process (camera takes photos>PCN triggered automatically, most cases not even appealed) clearly involves very little back-office intervention. If only 2% of cases proceed to POPLA then only 2% of the costs of POPLA appeals could be factored into a genuine pre-estimate of loss relating to all PCNs. I contend that the figure of £100 is in fact a penalty and cannot therefore be a genuine pre-estimate of loss because Excel Parking Services Ltd cannot justify £100 for each and every PCN that they say flows directly from a typical parking event in breach.
In any case I believe Excel Parking Services Ltd are paid by the Peel Centre an annual sum to cover the signs, ticketing and ANPR cameras, etc. Therefore, this payment income must be balanced within the GPEOL breakdown Excel Parking Services Ltd supply otherwise it would be double accounting for the same expenses. The motorist is not responsible for Excel Parking Services Ltd costs already covered by the Peel Centre remuneration. The more Excel Parking Services Ltd re-write the GPEOL calculation (various numbered versions) the further away they must get from the calculation being viewed as a genuine pre-estimate. Nor can they argue long after the event of deciding these charges years ago, that suddenly the £100 is not a GPEOL after all, it is instead a 'commercially justified penalty' (as per ParkingEye v Beavis).
POPLA Assessor Chris Adamson has stated in June 2014 upon seeing a loss statement re-written again recently for Excel Parking Services Ltd and sister company VCS - their latest attempt to get around POPLA - 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 Excel Parking Services Ltd, 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.''
If Excel Parking Services Ltd have in 2014 changed their 'GPEOL calculations' from the version presented to the POPLA Assessor in the multiple times the notorious Peel Centre has cropped up at POPLA, then I contend that the calculation must fail as it is not a genuine PRE-estimate. A re-written calculation after the charges were set at this site, would be a 'post-estimate' after the event, showing figures conveniently calculated to match the charge. Indeed, in the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated this sort of calculation is not acceptable: “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."
Not withstanding all of the above the correct fee was paid for the time the car was parked in the car park, hence no initial loss.
C. Protection of Freedoms Act 2012 (the Act)
In order for any parking company to pursue keeper liability under the Protection of Freedoms Act 2012 (the Act) that parking company must have met the conditions in the Act. The conditions are set out in the sub paragraphs of the paragraphs in Schedule 4 of the Act. Excel Parking Services Ltd use ANPR for its enforcement, in which case the relevant conditions that it must meet are those in paragraph 9. That is to say, the whole of paragraph 9 as is evident from its introduction which reads:
“(2) The Notice must …specify…inform…describe…state that…warn…identify”.
All of which are mandatory requirements.
Within the Notice to Keeper (nor any other correspondence) sent by Excel Parking Services Ltd there is no information which states that any other person or organization is the creditor, as such the appellant must assume that they are the creditor, Excel Parking Services Ltd have provided nothing to legally substantiate that claim.
It is well known in previous appeals considered by POPLA that the respondent has failed to provide any evidence that it is the “creditor” entitled to recover monies from a driver.
The appellant contends that the NtK is not valid and so no keeper liability exists.
D. No breach of the advertised terms and conditions
The signage upon which the Respondent wishes to rely upon fails to meet the standard required by Regulation 7 of the Unfair Terms in Consumer Regulations 1999 and as such it cannot be relied upon to demand a Parking Charge. The appellant invites POPLA to read the sign and consider just what infringement actually causes a “Parking Charge” liability to arise.
The sign states that “Failure to comply with the following will result in a parking charge…” The sign then lists six acts that must be undertaken for that charge to arise. If the Respondent wishes to rely on just one of those acts to impose a Parking Charge then the sign should say “Failure to comply with any one of the following will result in a parking charge…”
POPLA will be aware that if there is any doubt as to the written terms of a contract then their interpretation will be one that is “most favourable to the consumer” under the aforementioned Regulations. On that basis, even if the vehicle had been parked for more than the stipulated time no liability arises. Accordingly, the Appellant requests that this appeal is supported.
E. No contractual authority
The respondent has not provided the appellant with any evidence that it is lawfully entitled to demand money from the driver as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. That is to say Excel Parking Services Ltd have not demonstrated, that it has legal capacity to enter into a contract with a driver of a vehicle in the Peel Centre car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver. The appellant believes that Excel Parking Services Ltd do not have the legal capacity to enforce such a charge.
Accordingly the respondent should be required to provide a copy (to both POPLA and the appellant) of:
1. Its unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included;
2. Evidence of the land ownership of the party with whom the Respondent has contracted; and
3. A Purchase Order incorporating this car park into that contract in the event that that contract is a framework agreement within the next fourteen days. In the alternative, if the respondent is the owner of the land then it should evidence that ownership within the same time period. If the Respondent is unable or unwilling to do so, then it should not be permitted to offer any evidence in this appeal.
The appellant believes that Excel Parking Services Ltd is an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Excel Parking Services Ltd to impact upon visiting drivers in their own right for their own profit, because they are agents acting on behalf of a named principal. For the avoidance of doubt, I will not accept a mere “witness statement” since a mere letter would fail to show any payments made between the parties, and would omit contraventions and restrictions and dates & details of all terms in the actual contract.
F. ANPR inaccuracy and non-compliance
BPA Code of Practice 21 Automatic number plate recognition (ANPR) contains the following:
“21.3 You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.”
The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. The appellant requires that Excel Parking Services Ltd to present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos. The appellant also requires that Excel Parking Services Ltd provides records as to dates and times of when the overall ANPR system were checked and maintained to ensure the accuracy of the recorded information.
In addition the appellant requires Excel Parking Services Ltd to provide records of training or certification to demonstrate that the persons who maintained the ANPR system were suitably trained and qualified.
There are no criteria defined within the BPA code of practice to what constitutes keeping ANPR cameras and their associated systems in good working order. As such the appellant refers the adjudicator to the Guidance on ANPR Performance Assessment and Optimisation, which is written for commercial installers and states in Section 5 - Regular Maintenance and System Checks: “Regular system checks….should be undertaken at least every 12 months….and this maintenance should be completed…by qualified staff.”
The above is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times.
The lack of information about the use of data, is not compliant with the remainder of the BPA Code of Practice, Section 21. No signs at the car park clearly tell drivers about this technology nor how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every paragraph of section 21 is breached here. Unless Excel Parking Services Ltd can show documentary evidence otherwise, then this BPA CoP breach would also point to a failure to comply with the Information Commissioner’s Office (ICO) terms of registration and a breach of the Consumer Protection from Unfair Trading Regulations 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). Excel Parking Services Ltd is put to strict proof to the contrary.
G. Statement on the Appeal Process
Please note that the Appellant reserves the right to provide further representations in this appeal upon consideration of the evidence that has been requested. It is submitted that without such evidence the Appellant’s position is prejudiced by being unable to properly challenge the Respondent’s position.
POPLA is operated by the London Councils under a contract and has with it the BPA. As such it will be governed by the Human Rights Act and in particular Article 6. That article requires that an Appellant must have a real opportunity to present his or her case or challenge the case against them. This will require access to a Respondent’s submissions, procedural equality and generally requires access to evidence relied on by the other party.
H. The Appeal
1. There is no initial loss. A ticket for the correct amount was purchased and displayed for the time the car was parked;
2. The Respondent is in breach of the statutory requirements of Schedule 4, Protection of Freedoms Act 2012 and therefore cannot recover the alleged parking charge from the Appellant, who therefore has no liability for the parking charge;
3. The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge;
4. The respondent has provided insufficient evidence that the ANPR utilized to record the alleged infringement is accurate and compliant with the BPA Code of Practice; and
5. The Respondent does not have the necessary contractual authority from the landowner to pursue this parking charge.
I respectfully request that this appeal be allowed. In the event that POPLA is minded not to grant the appeal then, because the Respondent has failed to provide any evidence of its entitlement to recover parking charges nor a breakdown of its actual losses which evidence the parking charge until this stage, it is requested that it be ordered that the Respondent be not allowed to recover any more than the originally claimed sum.
0
Comments
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That's a good first draft. If the driver has been identified though, you have nowhere to go with point C which isn't relevant (the POFA isn't applicable unless you are arguing as a keeper only). Unless YOU are appealing this and you've simply 'named' the driver as 'my wife' or something? If you are appealing as driver, then there is no point including '2. The Respondent is in breach of the statutory requirements of Schedule 4, Protection of Freedoms Act 2012 and therefore cannot recover the alleged parking charge from the Appellant, who therefore has no liability for the parking charge'
I like this bit about the wording on the sign, nice idea and could be worth us including in future:
'The appellant invites POPLA to read the sign and consider just what infringement actually causes a “Parking Charge” liability to arise.
The sign states that “Failure to comply with the following will result in a parking charge…” The sign then lists six acts that must be undertaken for that charge to arise. If the Respondent wishes to rely on just one of those acts to impose a Parking Charge then the sign should say “Failure to comply with any one of the following will result in a parking charge…”PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks Coupon-mad - much appreciated.
Am applying as the keeper, but did name my partner on the first soft appeal (as in drivers name: an other). Although all subsequent correspondence from Excel has been to myself (the keeper).
I can't take credit for the statement in section D, that was from the pepipoo forum.
Thanks again.0 -
OK, that's good, so you are able to use all your points then, if you have not given the 'name and address for service' of the driver then Excel are pursuing you under the POFA. So you can include point C and (2).
Watch out for Excel's evidence pack by email in a few weeks and be ready to email POPLA the final word as you refute the rubbish they will come up with. If you search this forum for 'Excel GPEOL rebuttal' you should find a version from a while back which can still be tweaked if you want ideas on how to rebut 'evidence'.
PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks again Coupon-mad.
Did wonder if I would be able to respond to Excel's evidence - hence section G. Will retain this section as there is no discussion (that I can see) within the POPLA appeal guidance about responding to the other party's evidence.
Cheers.0 -
No they don't give you the option or everyone would do it. But we've tried it and if you send an email clearly rebutting the 'evidence' then it is considered by POPLA.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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