Thanks! - and a question...

Mike172

Finally!!! CPM claim the appeal letter is outdated and inaccurate and give the usual stuff - copied from online forums etc. Then give their pre estimation of loss. Which they include fuel costs in (they have an electric car...) and their pre estimate of loss is beyond £100. Apparently its up to me to prove the charge is disproportionate.

Also CPM are now citing the HHJ Moloney case too.

Ill draft up a 2nd stage but most likely it'll be a copy paste from a recent CPM appeal.

The punctuation and mistakes in this letter are really poor. Im no saint on an internet forum but these people expect to be taken seriously don't they?

Mike172

This is a direct copy from Gemlou's 2nd stage appeal - last part about signs is to fit my scenario but only then its a slight edit - the rest is a direct copy. I will be using the same appeal here twice as appealing on behalf of a friend too.

Some questions:

1. My original 1st stage had 5 points outlined (see below in box). Must I include everything I raised in stage 1 in my stage 2?

2. In RED there was no ticket paid for, I own a parking pass. Do we need to be 100% honest here?

3. Bit concerned about the sinage accusation. On the way in there is a sign but difficult to see when waiting for the gates to open as shoved up in a corner not visible from the car. There is also a sign placed next to the door on the way to the lift so I literally cannot miss it unless I was walking backwards.


If this is successful I will likely be baiting CPM to give me tickets by removing my windscreen ticket altogether. I understand this is about £35 a pop on their heads so intend to run up as many as possible. I know its frustrating for the regulars reading through appeals but I really do appreciate the effort you put into this forum.

Original Stage 1 appeal had the following points:

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is an unrecoverable penalty and not commercially justified.
b). The signage is insufficient, the risk of a charge is not transparent and the wording is ambiguous.
c). There is no evidence that you have any proprietary interest in the land.
d). Your written 'notice' fails to comply with the POFA 2012.
e). There was neither consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.

Dear POPLA Assesor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur

1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practise states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

On the day in question, a permit had been paid for, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd 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 reasonable 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

3) Inadequate Signage

Furthermore, there is only 1 visible on entering the development which is placed approx 4m up a wall on next to the gate as you drive in. The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that being unable to read the detail on the sign visible on entry without stopping your vehicle and getting out, breaches this code. This sign is not easy to read without impeding the flow of traffic behind you. The photograph supplied at the rejection letter stage is not one that is located at the relevant end of the development nor is it one that would have been visible on the route taken.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

I have taken photographs myself today for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.

4) The alleged contravention did not occur.

A new permit had been purchased from the operator who had given their permission for the vehicle to be parked, whilst awaiting them to fulfill their responsibilities and supply the permit, by displaying in the windscreen an authorisation code provided by them. This verbal contract is relied on and supercedes any terms and conditions on the signage.

If CPM wish to rebut my challenge I put them to strict proof of the contrary of this assertion:
I assert that, on the date in question, the authorisation code supplied by the operator was displayed in the windscreen, consequently the vehicle was parked with the permission of the Operator and therefore no breach of the parking terms occurred.

If CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.

bod1467

There are almost ALWAYS things wrong with the signs. YOU don't have to prove they don't meet the CoP or other guidance - THEY need to prove that they DO. YOU just need to make the allegation.

But that's not what'll win the appeal anyway.

Coupon-mad

If this is successful I will likely be baiting CPM

I wouldn't. A lot of PPCs are hopping to the IPC and I reckon UKCPM are a classic one which might do. Suddenly you'll be up the creek without the POPLA paddle! As for what you said about a photocopy - I would delete that now...

Must I include everything I raised in stage 1 in my stage 2?

Nope it can be completely new & different. However you have dropped a slam dunk winning appeal point...why? I assume Gemlou didn't include it maybe because they said who was driving so had thrown that baby out with the bathwater - but you have not:

''Your written 'notice' fails to comply with the POFA 2012.''

In the first instance it'll be down to you, not us, to spot the differences between the NTK and the POFA schedule 4 paragraph 8 - or to find another UKPCM thread where this has already been done for you! It's easy to do which is why the law is linked in the newbies thread. Also in the POPLA examples linked in 'How to win at POPLA' in post #3 of the Newbies thread have windscreen ticket examples where the NTK has been exposed as not compliant - UKCPM's will likely be similarly non-compliant in various ways, just needs looking at with a pedantic hat on!

Mike172

Gemlou's is from the How to win at POPLA examples.

Thanks for the not baiting advice - noted. Wonder if IPC is winnable? - keeping my eye on this forum for this as there are going to be more tickets surely.

e/ Just realised its that 'kangaroo' court which we can ignore.

My rejection is this letter here excluding the disability part:

Fruitcake wrote: »

http://i1375.photobucket.com/albums/ag480/jon__france/Parking/Page1_zpsf0e05445.png
http://i1375.photobucket.com/albums/ag480/jon__france/Parking/page2_zps15dde25d.png
http://i1375.photobucket.com/albums/ag480/jon__france/Parking/page3_zpse361f374.png
http://i1375.photobucket.com/albums/ag480/jon__france/Parking/page4_zps83d1ac8f.png

https://forums.moneysavingexpert.com/discussion/5104080

Judging by your comments in that thread I am good to go with the above draft?

Mike172

That look OK to send through to POPLA then?

Thanks

Coupon-mad

Once you have added a paragraph about :


'' There is no keeper liability because the 'Formal Demand' fails to comply with the POFA 2012 Schedule 4 paragraph 8.''


It would be madness not to include that paragraph seeing as that Formal Demand has as many holes as Swiss cheese and would be easy to spot (or copy from another UKCPM case where someone has already done it for you - search the forum for 'UKCPM POPLA' to find an example or two). Like I said maybe Gemlou didn't have that paragraph if she'd already said who was driving, but you haven't, so don't leave a slam dunk winning point out.

Mike172

Dear POPLA Assesor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur
5) Non compliant Notice to Keeper - no keeper liability established under POFA 2012

1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practise states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

On the day in question, a permit had been paid for, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd 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 reasonable 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

3) Inadequate Signage

Furthermore, there is only 1 visible on entering the development which is placed approx 4m up a wall on next to the gate as you drive in. The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that being unable to read the detail on the sign visible on entry without stopping your vehicle and getting out, breaches this code. This sign is not easy to read without impeding the flow of traffic behind you. The photograph supplied at the rejection letter stage is not one that is located at the relevant end of the development nor is it one that would have been visible on the route taken.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

I have taken photographs myself today for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.

4) The alleged contravention did not occur.

A new permit had been purchased from the operator who had given their permission for the vehicle to be parked, whilst awaiting them to fulfill their responsibilities and supply the permit, by displaying in the windscreen an authorisation code provided by them. This verbal contract is relied on and supercedes any terms and conditions on the signage.

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

On the NTK, the 'period of parking' is not shown, only the time of issue of an alleged PCN. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.
Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available'
The NTK is a nullity so no keeper liability exists as no valid NTK was provided within the necessary time frame as dictated by POFA 2012.

If CPM wish to rebut my challenge I put them to strict proof of the contrary of this assertion:
I assert that, on the date in question, the authorisation code supplied by the operator was displayed in the windscreen, consequently the vehicle was parked with the permission of the Operator and therefore no breach of the parking terms occurred.

If CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.

Point 5 added about No Keeper liability established

Coupon-mad

I also noticed the Demand failed to 'identify the creditor' (which is not OK just by implication from the letter heading) and IIRC, it didn't inform you that 'the driver has not paid'. It certainly didn't tell you that if you name the driver you must also 'pass the Notice to the driver'.

Have a look, I skim read it and saw lots of holes, not just one.

Mike172

In the Formal demand notice - or my popla appeal?

Sorry to be ignorant but Im not entirely sure what Im looking for.

Thought GPEOL was enough to win anyway so if theres enough to win then Id sooner not cause myself any more work