Ethical Parking Ticket

davidso

Ampersand, thanks once again. You are doing all the heavy lifting for me.

I'm going to send the following (all changes in blue) over the weekend unless I hear from others.


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 holiday property let to the Appellant 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 low on a post at a junction, even if noticed, its position, on the passenger side, 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 on the road directly outside 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.

On the contractual breach charge that was attached to the vehicle they allege 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.

But 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, the Claimant has 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 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.

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.

Coupon-mad

That is looking like a winner to me.

davidso

Great. I've sent it. Will let you know how I get on.

ampersand

Hello davidso - just back[rarely online late Wed>Fri], but why did you write 'low' rather than 'high' re the signs at a junction?
'Placed low on a post at a junction,'
#
The point of that word 'high' is to do with prescribed terms concerning a driver's normal eye-line+sight-line range. Many successful appeals and several Court cases emphasise that a motorist compromises road safety if he/she has to crane neck/head out of window, or peer through it, out and up, and/or turn head to read signage. This also derives from road intersection skew angle assessment requirements in planning and lay-out - all useful fodder for parking events where any issue of signage has prominence. Lies re:signage are routinely sworn as Truth by these scumpanies.

I reiterated inclusion of the word 'high' several times, because it is an important one. Hopefully, you'll be home and hosed before poplaperson sifts down that far. You have a sound case, well-made and only one point need be satisfied for your Appeal to succeed.

Have a good w/e with this vileness purged from your mindset now.

Take care - start thinking about next holiday - choose on basis of 'No Road Signs' within 6miles/10km essential:-)

davidso

The sign wasn't high. Just felt I couldn't write that. The sign is low and an on the passenger side and not in the line of sight for the driver. I thought that was a more correct account. Hopefully I haven't messed up the appeal.

Coupon-mad

Nope sounds great - you made it suit your circumstances.

ampersand

Ditto - it's even stronger imho, provided you stressed that it was not on the driver's side. How would a driver know it was there, if paying attention to the road?

Ease up now davidso:-). Done and dusted.

Hot_Bring

As we seem to have a moron stopping proper threads being displayed ..... bounce.

ampersand

Just sent descriptive em to Mods with examples - it's affecting posts everywhere, but not all.
Thread here:
https://forums.moneysavingexpert.com/discussion/5087757

davidso

I've just been cc-ed in on an email from Ethical Parking to POPLA with two attachments including their evidence (way too much to post here). In the small amount of text in the email they claim.

Please note we do not supply a genuine pre-estimate of loss as
we are contracted by the landowner/managing agent so do not have any figures available.


Anything to be concerned about?