Ethical Parking Ticket

davidso

Draft 2...


Dear POPLA,

I am the registered keeper and this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for 'not fully complying with the conditions' so this operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the parking space was outside the rental property we were vacating at the time of the incident, which was confirmed by the house/land owner as the parking space allowed for the property so there was no loss of potential income in an off-road parking space.

This operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs andt ax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.



2) Lack of signage/clear signage - no contract with driver
The sign was placed on a post on at junction making it unsafe to stop and read. It was one of many signs in the immediate vicinity and did not have prominence nor was it presented in such a way as to appear relevant to parking restrictions.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

(should I re-number this next section "3"?)

4) Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

The contractual breach charge was dated the 15/08/2014 and as the registered keeper of the vehicle the Notice to Keeper was non-compliant due to the fact this was never served. A letter was sent to Ethical Parking requesting this contractual breach charge to be revoked once I was made aware by the driver that a supposed contractual breach charge had been served as the driver was under no impression that any infringement had occurred as the vehicle was parked in the designated space for the property. Ethical Parking replied to advise they had received the letter and then another letter dated the 15th September was received stating their internal appeals department had reviewed the contractual breach charge and advised to make payment.

On the contractual breach charge that was attached to the vehicle they express they are in accordance with the Protection of Freedoms Act 2012 stating that failure to make full payment within the specified time will result in the registered keeper's details being requested from the DVLA to enforce this charge.

Under the Protection of Freedoms Act 2012 Paragraph 4, schedule 8 states: A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6 (1) (A) is given in accordance with this paragraph if the following requirements are met.

(the numbering seems to be a bit odd here too. Am I missing a "1")

(2) The notice must —

Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
As this was never received they have not adhered to this act.

3) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this road and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges in their own right.

I require Ethical Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention on this road. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

4) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

A sign placed on a cross road junction with double yellow lines, is far from 'transparent'.


Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The finding of Colman J in Lordsvale Finance Plc. -v- Bank of Zambia [1996] QB 752 was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...]deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

Nor is the charge 'commercially justified'. If Ethical Parking cite 'Parking Eye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law.

I contend it is wholly unreasonable to rely on signs placed on junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a designated parking space for the holiday home. I put this Operator to strict proof to justify that their charge, under the circumstances described that payment must now be made and if not paid by a certain date it will escalate in extra debt recovery costs, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

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

ampersand

'f.a.o. POPLA assessor' or 'To Whom It May Concern'. 'Dear POPLA' is not for me, but if you are comfy with it, go ahead.

Next comes a numbered list of emboldened, underlined headings which you expand on, one by one, with the same format e.g.

4. Unreasonable/Unfair Terms
-then away you go. You'll be making it easier for yourself, too.

'being vacated', not 'we were vacating'. No need to remind popla of earlier admission.

Is 'on at junction' 'at a junction'?
' The house- and land owner permits use of this off-road parking space by the property's tenants, so there was no loss of potential income.'

Suggest:
'The sign referred to by the claimant was one of many signs in the vicinity. [remove 'immediate', in case it is argued that an attentive driver should always notice anything in the 'immediate vicinity']
Placed on a post at a junction, even if noticed, its position would make safe stopping and reading impossible. It was not prominent in any way, nor was it presented in such a way as to appear relevant to parking restrictions. In this holiday area, visitors are unlikely to see it, let alone stop in a line of moving traffic to scrutinise, decipher and understand it.

spaces - 'andt ax-deductible', also 'Parkingrequesting'

Upper case 'C' for 'Court'.

This:
(the numbering seems to be a bit odd here too. Am I missing a "1") op- I trekked through POFA2012 here:
http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

So, 'paragraph 6 (1) (A)', should be 'paragraph 6 (1) (a)'

Citations must be accurate and with complete references.

The piece you cite is actually 9.[2]

'The notice must —

Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.'

Enclose all citations in parentheses: these are not your words, but Government legislation, which you want to help your case.

Now a line-space, before -

As no Notice to Keeper was ever received, this requirement was not met.

Use shorter sentences. Reading sentences several times to find the point isn't best use of Assessor's time or good will. You want them on your side. Help them. This isn't nit-picking for its own sake, davidso. Clarity and accuracy are all.

re: (should I re-number this next section "3"?) - use whichever number you have in your headings list for each topic.

Further from#8 -
' If Ethical Parking cite 'ParkingEye v Beavis & Wardley', this is irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time. It is lodged with the Court of Appeal, cited as being 'full of caveats and full of holes and a distinct lack of case law.'

Tweaked: A sign placed at a cross road junction with double yellow lines is far from 'transparent'.

tweaked-
It is wholly unreasonable to rely on signs placed at junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused, especially by a permitted car using a designated parking space outside a holiday home.

I put this Operator to prove their contention that payment of this charge, under the circumstances described, must now be made and if not paid by a certain date will escalate, with extra debt recovery costs.

The Unfair Terms in Consumer Contracts Regulations 1999 replaces the old 1994 Act of the same name. It contains these changes, derived from an EU directive:
'A term will be regarded as unfair under Reg 5 if:

It has not been individually negotiated
It is contrary to the requirement of good faith
It causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer
Sch 2 contains an indicative but not exhaustive list of what may be regarded as unfair:

This charge is already unenforceable on the grounds covered. To further pursue and increase it causes a significant imbalance, thus breaching current legislation.
######
Have to go now, op. Don't be discouraged: you're well on the way. Look at POFA. Check what's there against your quoted elements. They must match.

davidso

Draft 3

To Whom It May Concern

I am the registered keeper and this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for 'not fully complying with the conditions' so this operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the parking space was outside the rental property being vacated at the time of the incident, which was confirmed by the house/land owner as the parking space allowed for the property so there was no loss of potential income in an off-road parking space.


(not sure if I need to change the above. I was not “vacting”. I was “vacationing” not in the process of moving out. Also, I was parked in the pribvate road outside the property not specifically in a “parking space allowed for the property”. Perhaps that just means the private road.)

This operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The house- and landowner permits use of this off-road parking space by the property's tenants, so there was no loss of potential income.

2) Lack of signage/clear signage - no contract with driver

The sign referred to by the claimant was one of many signs in the vicinity. Placed on a post at a junction, even if noticed, its position would make safe stopping and reading impossible. It was not prominent in any way, nor was it presented in such a way as to appear relevant to parking restrictions. In this holiday area, visitors are unlikely to see it, let alone stop in a line of moving traffic to scrutinise, decipher and understand it.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

3) Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

The contractual breach charge was dated the 15/08/2014 and as the registered keeper of the vehicle the Notice to Keeper was non-compliant due to the fact this was never served. A letter was sent to Ethical Parking requesting this contractual breach charge to be revoked once I was made aware by the driver that a supposed contractual breach charge had been served as the driver was under no impression that any infringement had occurred as the vehicle was parked in the designated space for the property. Ethical Parking replied to advise they had received the letter and then another letter dated the 15th September was received stating their internal appeals department had reviewed the contractual breach charge and advised to make payment.

On the contractual breach charge that was attached to the vehicle they express they are in accordance with the Protection of Freedoms Act 2012 stating that failure to make full payment within the specified time will result in the registered keeper's details being requested from the DVLA to enforce this charge.

Under the Protection of Freedoms Act 2012 Schedule 4, Paragraph 8 (I’ve changed these numbers/letters, I think it’s correct now) states:

“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6 (1) (a) is given in accordance with this paragraph if the following requirements are met.

(2) The notice must —

(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.”


As this was never received they have not adhered to this act.

4) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the Courts in their own right.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the Courts in their own name nor standing to form contracts with drivers themselves. They do not own this road and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges in their own right.

I require Ethical Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention on this road. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

It is wholly unreasonable to rely on signs placed at junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused, especially by a permitted car using a designated parking space outside a holiday home.

I put this Operator to prove their contention that payment of this charge, under the circumstances described, must now be made and if not paid by a certain date will escalate, with extra debt recovery costs.

The Unfair Terms in Consumer Contracts Regulations 1999 replaces the old 1994 Act of the same name. It contains these changes, derived from an EU directive:
'A term will be regarded as unfair under Reg 5 if:

It has not been individually negotiated
It is contrary to the requirement of good faith
It causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer
Sch 2 contains an indicative but not exhaustive list of what may be regarded as unfair:

This charge is already unenforceable on the grounds covered. To further pursue and increase it causes a significant imbalance, thus breaching current legislation.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The finding of Colman J in Lordsvale Finance Plc. -v- Bank of Zambia [1996] QB 752 was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...]deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

Nor is the charge 'commercially justified'. If Ethical Parking cite 'ParkingEye v Beavis & Wardley', this is irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time. It is lodged with the Court of Appeal, cited as being 'full of caveats and full of holes and a distinct lack of case law.

I contend it is wholly unreasonable to rely on signs placed on junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a designated parking space for the holiday home. I put this Operator to strict proof to justify that their charge, under the circumstances described that payment must now be made and if not paid by a certain date it will escalate in extra debt recovery costs, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

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

ampersand

OK davidso - have a few minutes now[apologies for your wait]
re:[corrected]
(not sure if I need to change the above. I was not “vacating”. I was “vacationing” not in the process of moving out. Also, I was parked in the private road outside the property not specifically in a “parking space allowed for the property”. Perhaps that just means the private road.)
OK. it would also be interesting to know whether landowner is aware of other holiday let 'tenants' having received scam invoices.
#
1. Include 'holiday' twice, EARLY:-), to anchor idea of unfamiliar surroundings in POPLA assessor's head at onset. So -
'outside the holiday rental property'
'by this holiday property's temporary 'tenants' - I'd enclose 'tenants' in inverted commas, because holiday-makers are not tenants in the normal sense.
#
3.
'dated [STRIKE]the[/STRIKE] 15/08/2014'
'As soon as the Registered Keeper was made aware by the driver that a supposed contractual breach charge had been served, a letter was sent to Ethical Parking requesting it be cancelled. The driver was at no time aware of any infringement, as the vehicle was parked in the designated space for the holiday property.'
Ethical Parking accept that they received this letter, but then wrote again[15/09/2014]stating their internal appeals department had reviewed the contractual breach charge and still insisted on payment.
#
'As this was never received they have not [STRIKE]adhered to[/STRIKE] complied with this Act.'[capital 'A']
#
4.

'full of caveats and full of holes and a distinct lack of case law.'[closing ' missed.]

'I put this Operator to strict proof that their charge[/U][/B], under the circumstances described,i.e.insisting that failure to pay their speculative invoice by a certain date will attract extra debt recovery costs, does not cause a significant imbalance to my detriment.

Further, in so doing, they must also show that this charge does not breach the UTCCRs and UCT Act.'

#
Just let one of the experts cast a final eye once you've attended to my nit-picking:-)davidso.

Then it's green Light.

davidso

Final draft?

To Whom It May Concern

I am the registered keeper and this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for 'not fully complying with the conditions' so this operator must prove the charge to be a genuine pre-estimate of loss.

(I DON’T KNOW WHAT TO PUT HERE. We were parked outside the holiday property on the private road over which Ethical Parking claim to have power. Do I put anything at all?)

This operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The house- and landowner permits use of this off-road parking space by the property's temporary ‘tenants’, so there was no loss of potential income.

2) Lack of signage/clear signage - no contract with driver

The sign referred to by the claimant was one of many signs in the vicinity. Placed on a post at a junction, even if noticed, its position would make safe stopping and reading impossible. It was not prominent in any way, nor was it presented in such a way as to appear relevant to parking restrictions. In this holiday area, visitors are unlikely to see it, let alone stop in a line of moving traffic to scrutinise, decipher and understand it.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

3) Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

The contractual breach charge was dated 15/08/2014 and as the registered keeper of the vehicle the Notice to Keeper was non-compliant due to the fact this was never served.

As soon as the Registered Keeper was made aware by the driver that a supposed contractual breach charge had been served, a letter was sent to Ethical Parking requesting it be cancelled. The driver was at no time aware of any infringement, as the vehicle was parked in the designated space for the holiday property

A letter was sent to Ethical Parking requesting this contractual breach charge to be revoked once I was made aware by the driver that a supposed contractual breach charge had been served as the driver was under no impression that any infringement had occurred as the vehicle was parked in the designated space for the property.

Ethical Parking accept that they received this letter, but then wrote again[15/09/2014] stating their internal appeals department had reviewed the contractual breach charge and still insisted on payment.

On the contractual breach charge that was attached to the vehicle they express they are in accordance with the Protection of Freedoms Act 2012 stating that failure to make full payment within the specified time will result in the registered keeper's details being requested from the DVLA to enforce this charge.

Under the Protection of Freedoms Act 2012 Schedule 4, Paragraph 8 states:

“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6 (1) (a) is given in accordance with this paragraph if the following requirements are met.

(2) The notice must —

(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.”


As this was never received they have not complied with this Act.

4) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the Courts in their own right.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the Courts in their own name nor standing to form contracts with drivers themselves. They do not own this road and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges in their own right.

I require Ethical Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention on this road. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

It is wholly unreasonable to rely on signs placed at junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused, especially by a permitted car using a designated parking space outside a holiday home.

I put this Operator to prove their contention that payment of this charge, under the circumstances described, must now be made and if not paid by a certain date will escalate, with extra debt recovery costs.

The Unfair Terms in Consumer Contracts Regulations 1999 replaces the old 1994 Act of the same name. It contains these changes, derived from an EU directive:
'A term will be regarded as unfair under Reg 5 if:

It has not been individually negotiated
It is contrary to the requirement of good faith
It causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer
Sch 2 contains an indicative but not exhaustive list of what may be regarded as unfair:

This charge is already unenforceable on the grounds covered. To further pursue and increase it causes a significant imbalance, thus breaching current legislation.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The finding of Colman J in Lordsvale Finance Plc. -v- Bank of Zambia [1996] QB 752 was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...]deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

Nor is the charge 'commercially justified'. If Ethical Parking cite 'ParkingEye v Beavis & Wardley', this is irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time. It is lodged with the Court of Appeal, cited as being 'full of caveats and full of holes and a distinct lack of case law.’

I contend it is wholly unreasonable to rely on signs placed on junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a designated parking space for the holiday home.

I put this Operator to strict proof that their charge under the circumstances described i.e. insisting that failure to pay their speculative invoice by a certain date will attract extra debt recovery costs, does not cause a significant imbalance to my detriment.

Further, in so doing, they must also show that this charge does not breach the UTCCRs and UCT Act.

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

ampersand

davidso - only a few moments free , but here:
'I am the registered keeper[of VEHICLE REG.NO.] and this is my appeal:' Include Reg. No as shown.

'(I DON’T KNOW WHAT TO PUT HERE. We were parked outside the holiday property on the private road over which Ethical Parking claim to have power. Do I put anything at all?)'

First, no ppc 'has power' over anything in this way, but that aside, on #7 you wrote 'I have also been in contact with the landowner of the property we were vacating'

And what did the Landowner say?

Look at #13 '' The house- and land owner permits use of this off-road parking space by the property's tenants, so there was no loss of potential income.'' - you took this wording on board, so back it up.

Also,my ? from #15 '...it would also be interesting to know whether landowner is aware of other holiday let 'tenants' having received scam invoices.'
Did you ask?

Next, #16 here, para. 3:[punctuation, wording tweaks]

'The contractual breach charge was dated 15/08/2014 and, as registered keeper of the vehicle, the Appellant submits the Notice to Keeper was non-compliant, due to the fact it was never served.'
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Must dash - how long to deadline davidso? Seems to have been on the go a while now.

I have a feeling I've seen c-m suggest some of that older case law argument be jettisoned in some Appeals, unless you are wanting to show consistency by Judges through a century of British justice:-)

Dee, if you're around, does this ring a bell with you?

davidso - if anything's due in today, you still have until midnight, so hang on.
Also, are you attaching pics or no - #8, if they serve your cause, and/or debunk any provided by ppc, otherwise don't.

davidso

First, no ppc 'has power' over anything in this way, but that aside, on #7 you wrote 'I have also been in contact with the landowner of the property we were vacating'

And what did the Landowner say?

That was only in my draft because I cut and pasted the whole draft from spoooky’s appeal – those were his words. I’ve removed them because they were not true in my case. What do I put here? Please help.

(BTW I did contact the owner of the holiday house I was renting, outside which my car was parked – she just said “they’re a bunch of !!!!!!!s and nobody she knows has had any appeals upheld” she probably means non-popla appeals).


Look at #13 '' The house- and land owner permits use of this off-road parking space by the property's tenants, so there was no loss of potential income.''

I will re-word because it was not off-road it was on the “private road” but I do not know what to write. Please help.

you took this wording on board, so back it up.

I don’t understand what you mean.

Must dash - how long to deadline davidso? Seems to have been on the go a while now.

The letter from Ethical Parking claims that I have until 13/10/14 to pay £100. Is that the deadline?


Also, are you attaching pics or no - #8, if they serve your cause, and/or debunk any provided by ppc, otherwise don't.

Not sending them any photos.

ampersand

I seize on this:
'(BTW I did contact the owner of the holiday house I was renting, outside which my car was parked – she just said “they’re a bunch of !!!!!!!s and nobody she knows has had any appeals upheld” she probably means non-popla appeals).'

So, this holiday let address is a known and apparently profitable hunting ground for this ppc.
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We must not assume, but can infer that indignant, mitigation-laden, non-popla 'my case is this'letters have sometimes gone in, and thus been doomed to failure.

Up to davidso to buck that trend, then let holiday let owner know she can include a laminated copy of your process/successful steps/letters:-) in the holiday handover folder that remains on the premises....surely? Seems very slack of owner not to make holiday tenants aware of their rights within her property, unless she is claiming land she does not own, in which case, the actual landowner of that parking area/private road must be identified and a copy of the contemporaneous unredacted contract between them made visible.

re: 'The letter from Ethical Parking claims that I have until 13/10/14 to pay £100. Is that the deadline?'
I can't tell you, but you have 28 days from supposed sending date of any letter with valid popla code.

In your case, on 16/9:#5 you wrote:'Ethical Parking have emailed me a letter rejecting my appeal and have supplied a POPLA code.'
Check the date of that email. then count forward 28 days.

You can't really be puzzled by the rest:
'Look at #13 '' The house- and land owner permits use of this off-road parking space by the property's tenants, so there was no loss of potential income.''

I will re-word because it was not off-road it was on the “private road” but I do not know what to write. Please help.

you took this wording on board, so back it up.

I don’t understand what you mean.'
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I think you are stuck at the endless-circles stage, which happens near the end.

So, 'The owner of this holiday home permits parking by her holiday tenants on the private road during the period of each holiday let, so there is no loss of potential income.'

If she is not the owner of the private road, or that portion of it which is outside her property, or has no right to assign parking in such a way, that is for the ppc to prove. I'm not sure you should suggest this alternative ammo. route for the ppc in your popla Appeal. Let's see what others say.

JUST CHECK THAT EMAIL DATE AND CARVE IT ON YOUR PUMPKIN, WITH LIT CANDLE INSIDE TO REMIND YOU OF DEADLINE:-)

davidso

Thanks for all your time so far Ampersand. This is where I am at. The deadline is next week so I'm safe. I will indeed inform the property owner of all the steps for appealing my ticket assuming it's successful.

To Whom It May Concern

I am the registered keeper of [MY REG] and this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

Their sign states the charge is for 'not fully complying with the conditions' so this operator must prove the charge to be a genuine pre-estimate of loss.


There is no loss flowing from this parking event because the parking space was outside the rental property we were vacationing at the time of the incident. The owner of this holiday home permits parking by her holiday tenants on the private road during the period of each holiday let, so there is no loss of potential income.

This operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.


2) Lack of signage/clear signage - no contract with driver

The sign referred to by the claimant was one of many signs in the vicinity. Placed on a post at a junction, even if noticed, its position would make safe stopping and reading impossible. It was not prominent in any way, nor was it presented in such a way as to appear relevant to parking restrictions. In this holiday area, visitors are unlikely to see it, let alone stop in a line of moving traffic to scrutinise, decipher and understand it.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

3) Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

The contractual breach charge was dated 15/08/2014 and, as registered keeper of the vehicle, the Appellant submits the Notice to Keeper was non-compliant, due to the fact it was never served.

As soon as the Registered Keeper was made aware by the driver that a supposed contractual breach charge had been served, a letter was sent to Ethical Parking requesting it be cancelled. The driver was at no time aware of any infringement, as the vehicle was parked in the designated space for the holiday property

A letter was sent to Ethical Parking requesting this contractual breach charge to be revoked once I was made aware by the driver that a supposed contractual breach charge had been served as the driver was under no impression that any infringement had occurred as the vehicle was parked in the designated space for the property.

Ethical Parking accept that they received this letter, but then wrote again [15/09/2014] stating their internal appeals department had reviewed the contractual breach charge and still insisted on payment.

On the contractual breach charge that was attached to the vehicle they express they are in accordance with the Protection of Freedoms Act 2012 stating that failure to make full payment within the specified time will result in the registered keeper's details being requested from the DVLA to enforce this charge.

Under the Protection of Freedoms Act 2012 Schedule 4, Paragraph 8 states:

“(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6 (1) (a) is given in accordance with this paragraph if the following requirements are met.

(2) The notice must —

(b) Inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.”


As this was never received they have not complied with this Act.

4) Lack of standing/authority from landowner

Ethical Parking has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the Courts in their own right.

BPA CoP paragraphs 7.1 &7.2 dictate some of the required contract wording. I put Ethical Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Ethical Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the Courts in their own name nor standing to form contracts with drivers themselves. They do not own this road and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Ethical Parking are entitled to pursue these charges in their own right.

I require Ethical Parking to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention on this road. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

5) Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

It is wholly unreasonable to rely on signs placed at junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused, especially by a permitted car using a designated parking space outside a holiday home.

I put this Operator to prove their contention that payment of this charge, under the circumstances described, must now be made and if not paid by a certain date will escalate, with extra debt recovery costs.

The Unfair Terms in Consumer Contracts Regulations 1999 replaces the old 1994 Act of the same name. It contains these changes, derived from an EU directive:
'A term will be regarded as unfair under Reg 5 if:

It has not been individually negotiated
It is contrary to the requirement of good faith
It causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer
Sch 2 contains an indicative but not exhaustive list of what may be regarded as unfair:

This charge is already unenforceable on the grounds covered. To further pursue and increase it causes a significant imbalance, thus breaching current legislation.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

The finding of Colman J in Lordsvale Finance Plc. -v- Bank of Zambia [1996] QB 752 was that “whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent part for the breach [...]deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

Nor is the charge 'commercially justified'. If Ethical Parking cite 'ParkingEye v Beavis & Wardley', this is irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time. It is lodged with the Court of Appeal, cited as being 'full of caveats and full of holes and a distinct lack of case law.’

I contend it is wholly unreasonable to rely on signs placed on junctions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a designated parking space for the holiday home.

I put this Operator to strict proof that their charge under the circumstances described i.e. insisting that failure to pay their speculative invoice by a certain date will attract extra debt recovery costs, does not cause a significant imbalance to my detriment.

Further, in so doing, they must also show that this charge does not breach the UTCCRs and UCT Act.

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

ampersand

Not 'vacationing' - not a verb, no such word.

'There is no loss flowing from this parking event because the parking space was outside the holiday property let to the Appellant at the time of the incident.'
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' Placed high on a post at a junction, even if noticed, its position would make safe stopping and reading impossible.'[include 'high'. It must have been above driver eyeline and safe angle, or you would have noticed it. Are you comfortable with this?]
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nitpick fullstops needed here:-)
' Placed on a post at a junction, even if noticed, its position would make safe stopping and reading impossible.'

and here:
'as the vehicle was parked in the designated space for the holiday property.'
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'[STRIKE]A letter was sent to Ethical Parking requesting this contractual breach charge to be revoked once I was made aware by the driver that a supposed contractual breach charge had been served as the driver was under no impression that any infringement had occurred as the vehicle was parked in the designated space for the property.[/STRIKE]
-lose this as it duplicates the prev. para.
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'On the contractual breach charge that was attached to the vehicle they allege they are in accordance ...'
not 'express', but 'allege', which allows you to continue para. strongly:
'But the Protection of Freedoms Act 2012 Schedule 4, Paragraph 8 states:
blahblah
As this was never received, the Claimant has not complied with this Act.'
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double space each line here and insert fullstops:

It has not been individually negotiated.

It is contrary to the requirement of good faith.

It causes a significant imbalance in the parties' rights and obligations to the detriment of the consumer.

Sch 2 contains an indicative but not exhaustive list of what may be regarded as unfair:
Then underline that same section where you quote it in full below:[you are showing poplaperson the exact parallel with the subtlety of a sledgehammer:D
blahblah
'shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer'
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Slight changes here -
'I contend it is wholly unreasonable to use non-compliant signs placed at road junctions in an attempt to profit by charging a disproportionate sum, where no loss has been caused, for a car using a designated parking space outside a holiday home.'
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Otherwise good to go. Wait to see if anyone has other ideas.
Had hideous moment. All went black and shut down. Thought I'd lost an hr's work. Re-opened, then retrieved and v.v.v.slowly, all rtnd. It was an XL Phew!