CareParking Appeal letter check

gemlouj29

Hello all,

I recently got a windscreen charge for parking in my friends bay. Unfortunately I did not have a permit at the time. The enforcement officer was just driving away when I stopped him to ask 'why' - he then asked wher I had been to which I replied "popped to the post office for my friend whom I am now visiting and who has a permit waiting for me". As I could not produce a permit there and then he drove off with his pictures of my car ect.

I later sent an email to Carparking who disputed my letter on the following grounds...

Dear xxxx,

Your appeal against the Parking Charge Notice (PCN) issued on 28 Jul 14 at xxxxxx for the alleged contravention of No Permit has been considered by our appeals team, having reviewed the evidence and the details supplied by yourself your appeal has been rejected.

Your appeal has been rejected for the following reasons:

 On 28 Jul 14 at 16:36 this vehicle, Registration xxxxxxx was parked at xxxxx Place without displaying a valid parking permit.

 When parking at xxxx Place the driver of this vehicle agreed to pay a Parking Charge of £100 if they did not park in accordance with the terms printed on the contractual warning signs.

 The contractual warning signs in place state: Permit Holders Only. A valid permit must be displayed at all times. This vehicle was parked in contravention of this term of the contractual warning signs.

 At the time this vehicle was issued with a PCN no valid permit was on display and no permit could be seen within the vehicle.

 There are signs displaying the terms and conditions for parking on site at regular intervals throughout this site.

 The parking of this vehicle at this location was therefore unauthorised and this charge was issued correctly.

 The parking forum information you refer to in your appeal is outdated and inaccurate, current case law from HHJ Moloney QC covers this and with regard to your comments in relation to the charge being unfair, which are based on the Unfair Terms In Consumer Contract Regulations some terms do not fall under the assessment of ‘fairness’ as long as they are in plain, intelligible language. These terms include the definition of the main subject matter of the contract or the adequacy of the price in relation to it. Our signage clearly states the parking requirements and the costs of none compliance.

 All costs are commercial in confidence and will not be disclosed at this stage, commercial in confidence will be disclosed as directed by a court if necessary.

 The operative has also submitted a statement with regard to your conversation at the time, confirming you parked to use the Post Office but as you knew the bay owner you should be allowed to park. The signage on site clearly states the terms for parking, a permit was not displayed and this charge was issued correctly.

Photographic evidence supporting the issue of this PCN can be viewed by following the link and entering your vehicle registration and PCN reference number; xxxxxxxxxxxxxxxxxxx. Copies of these photographs are available on request.

As you appealed within the 14 day discounted period the parking charge amount has remained at the reduced payment amount of £60, the amount due will remain at the discounted rate for a further 14 days from the day after the date of this letter. After the 14 days the full amount will be due and payable.

This decision is final and no further communication will be accepted by Care Parking with regard to this appeal, therefore you are requested to now submit your payment of the monies owing.

You now have a number of options from which to choose:

1. Pay the parking charge.

2. Make an appeal to POPLA – The Independent Appeals Service by making your appeal online at (popla).

a. Your POPLA verification code is: xxxxxxxxx. Please be advised that if you opt for independent arbitration of your case, the ability to pay the parking charge at the reduced rate of £60 will immediately end. If you opt to pay the parking charge you will be unable to appeal to POPLA.

3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.

This letter and all other correspondence received in relation to this PCN may be used to form part of our case for court action if necessary.


so my reply to this email will be ;

POPLA Verification code : xxxxxxx
Vehicle Reg: xxxxxxx
PPC: Careparking
PCN Ref: xxxxxxx
Date of PCN: 28/7/2014

I, as the registered keeper received an invoice from Care Parking requiring payment of a charge of £100 for the alleged contravention of parking without displaying a valid permit at xxxxx Place.

As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Notice to Appellant


1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner / Landholder. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.


Thereby Care Parking asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, Care Parking have also refused to present me with a breakdown of those losses. When I raised the question that the amount requested was neither a genuine tariff/fee nor was it based upon any genuine pre-estimate of loss they replied that my point “was covered in recent case law in the county courts by HHJMaloney QC this also shows that it is acceptable for parking companies to make a profit as a business”
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

These losses necessarily being a “pre-estimate” must by nature be already known to CareParking there can be no genuine reason, commercial or otherwise, for CareParking to withhold or refuse to provide these on request, yet as they have both failed and are essentially refusing to provide a breakdown of their pre-estimate of loss I must contend that the quoted figure of £100 cannot be a genuine pre-estimate of loss.

I contend that the figure of £100 (reduced to £60 if paid within 14 days) infact a penalty and cannot therefore be a genuine pre-estimate of loss.


This supports the principle that the aim of damages is to be compensatory,beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be "compensatory in nature rather than punitive.''

In the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

Additionally, no time was given to retrieve the permit which was waiting for me from my associate who leases the parking bay from Caxton Place. Photographic evidence of this permit has been disregarded within my appeal.



2. No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf and enforce for breach of contract. CareParking must either produce evidence to demonstrate that it is the landowner/landholder or a contract that it has the authority of the landowner/landholder to issue charge notices at this location.I requested this information with my original appeal letter to CareParking but was informed my request was not based on fact and is incorrect
I believe there is no contract with the landowner/landholder and CareParking which entitles CareParking to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore I contend that CareParking has no authority to issue charge notices.

I put CareParking to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that CareParking produce to POPLA the contemporaneous and unredacted contract between the landowner/landholder and CareParking even if a basic contract is produced and mentions PCNs, 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 CareParking and the landowner/landholder and would contain nothing that CareParking can lawfully use in their own name as a mere agent, that could impact on a third party customer.


3. No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 8 (2) (h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to CareParking there is no specific identification of the Creditor who may, in law, be CareParking or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.


Summary

On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

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



Yours faithfully


I'm wondering if they might 'get me' on the whole post office situation, or will the pre-estimate of loss be enough?

Any feedback would be very much appreciated,

Thankyou.

Coupon-mad

That template which incorrectly calls a NTK a 'Notice to Appellant' is pretty old; also you haven't included a paragraph about dodgy signs which you will see is in every POPLA appeal example in the Newbies thread post #3. You always have 'unclear signs' in a POPLA appeal.

And if you appealed and gave away who was driving you have already burnt your boats as far as any criticism of the NTK is concerned (and did you even wait for any NTK to arrive in the post, if not that part makes no sense as you didn't get such a notice...).

And this bit makes me wonder if it's even relevant, did you ask for their GPEOL, if not you can't say they withheld or refused to provide it:

...CareParking to withhold or refuse to provide these on request, yet as they have both failed and are essentially refusing to provide a breakdown of their pre-estimate of loss

gemlouj29

Thankyou for your reply, I got the template from a letter which was done last month. Panicking about the situation I wrote off to CarePark straight away including my details - which I now know was a stupid thing to do and will probably end up as paying the fine.

I removed the signage part as I did actually park right under a sign so I thought this part would not be valid to me as I could read the sign.

Do you think I have any grounds to stand on with me having the permit?

This was my original after I received the windscreen penalty...

As the registered driver I wish my appeal to be considered on the
following grounds:

The alleged contravention did not take place.

As it can be seen from the photo evidence I have a visitors pass. After parking the car in the correct bay, I went to retrieve a visitors pass, on my return I was confronted with a PCN. Your reason of 'no permit' is not valid due to the reason of having a permit for the designated space. Additionally, upon receipt of your acknowledgment of this appeal I will be complaining to the Private landowner who you are employed by.

Furthermore, the amount demanded is a penalty not a genuine pre estimate of loss. The parking charge of £100 within 28 days or £60 within 14 does not represent a genuine pre-estimate of loss
and therefore is unfair as defined in the Unfair Terms in Consumer
Contracts Regulations 1999. Parking charges cannot include business
costs which would occur whether or not the alleged contravention took
place. The amount claimed is excessive and is being enforced as a
penalty for 'no permit'(which arguably is included as photographic evidence showing proof of permit) and is not a genuine pre-estimate of
loss.I would also like to
see a breakdown of the cost calculations relating to this charge; given
all of the costs must represent a loss resulting from the alleged
breach at the time.

I wish for you to reconsider your PCN,

regards,

Miss Xxxx

The panic is really starting to set in now- through stupid mistakes of my own!

Thankyou for your feedback.

Coupon-mad

You must always have 'unclear signage' (ALWAYS). Just the presence of a sign doesn't mean the terms were clear or the wording formed a contract, and it makes them have to show photos & maps that they could muck up:

http://parking-prankster.blogspot.co.uk/2013/06/highview-parking-send-in-map-of-wrong.html

will probably end up as paying the fine.

Even people who manage to lose at POPLA don't have to pay the charge (it is not a FINE!!). We have several posters on here ignoring their PPC after throwing away their POPLA chances with a weaker appeal than we would have advised. So what? POPLA is only binding on the PPC, not the motorist. Even the Parking Prankster himself as on that blog, has lost at POPLA in the early days when we were testing wording - and he then (of course) ignored the PPC's bleats to pay them.

Do you think I have any grounds to stand on with me having the permit?

Nope, that isn't relevant to POPLA where the PPC is saying it wasn't displayed.
You are panicking like this person is:

https://forums.moneysavingexpert.com/discussion/5060495

Yet we have 100% record at POPLA stage and both of you should win despite having named the driver. Both of you are dealing with a small PPC who aren't great at POPLA replies and who don't try court anyway.

I think = please look over the weekend at the better examples of 'How to win at POPLA' that we have in post #3 of the Newbies thread. You should still win based on the fact there was no initial loss and therefore no consequential loss. Find a windscreen ticket example POPLA appeal (in the examples I have collated in the Newbies thread) where it says clearly about no initial loss, and no standing, and dodgy unclear signs.

gemlouj29

Thankyou again for your words. I will read in depth over the weekend and if you would be so good to read over a new drafted letter next week I would be grateful. Thanks.

gemlouj29

Dear POPLA Assessor,

I am the registered keeper of xxxxxx and I wish to appeal the Care Parking PCN xxxxxxxx on the following basis:

1. The Charge is not a genuine pre-estimate of loss
2. Lack of clear, readable signage - no contract with driver
3. Lack of standing/authority from landowner
4. Unreasonable/Unfair Contract Terms.

Explained below:

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

Despite the protestations in the rejection letter from Care Parking, the truth is there is no implied (or otherwise) acceptance of any charge in the BPA Code of Practice (CoP). In fact the Office of Fair Trading has stated to the BPA Ltd that ‘a parking charge is not automatically recoverable simply because it is stated to be a parking charge.’

The signs, when read in daylight when I went in search of them for this appeal evidence, state the charge is for 'Failure to comply" with the parking conditions i.e. breach of terms, and the rejection notice talks of 'contravention' 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 I have a valid parking permit for this 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 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. There is no genuine loss being pursued.

2. Lack of clear, readable signage - no contract with driver.

Such as they are, the signs are placed high up.There is no entrance sign, and any sign that the driver may have passed is certainly not prominent, and was placed too high to be noticed.
The appeal rejection from GPS is quite clear in stating ‘No Permit’. However, I have a permit and the circumstances surrounding the event have been explained in full. To say I have ‘No Permit’ is simply not true and I have and can continue to prove that I do.
No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of Care Parking not expecting to read a contract when they arrive. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

The signs are certainly not 'startling'. Nor was there any lighting to illuminate the terms, which were in a very small font. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of any hefty 'charge'. Terms on a notice - or even 40 notices dotted around the carpark- are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety.

3. Lack of standing/authority from landowner.

Care 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 Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care 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 car park 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 showing that Care Parking are entitled to pursue these charges in their own right in the courts.

I require Care 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 CoP and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. 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 CoP, 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 Contract Terms.

Care parking say this in their rejection letter,

When parking at xxxx Place the driver of this vehicle agreed to pay a Parking Charge of £100 if they did not park in accordance with the terms printed on the contractual warning signs.

• The contractual warning signs in place state: Permit Holders Only. A valid permit must be displayed at all times. This vehicle was parked in contravention of this term of the contractual warning signs.
In OFT's extensive guidance on the Unfair Terms in Consumer Contracts Regulations (UTCCRs) 1999, the guidance includes the following advice:

“The Regulations apply a test of fairness to all standard terms (terms that have not been individually negotiated) in contracts used by businesses with consumers, subject to certain exceptions. The main exemption is for terms that set the price or describe the main subject matter of the contract (usually known as 'core terms') provided they are in plain and intelligible language. The Regulations thus apply to what is commonly called 'the small print' of standard form consumer contracts”.

“The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”.

“The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.

It represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

I also draw the Assessor’s attention to The OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’

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".

Contrary to the requirement of good faith, this charge caused a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer (myself) which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and UCT Act evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, 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”. Further in support of my contention that this charge is a penalty, is the finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 which 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 party for the breach [...] deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.

In summary, Care Parking are attempting to enforce a punitive charge for an alleged infringement where a permit has been successfully obtained. I respectfully request therefore, that my appeal is upheld and the charge is dismissed.

Yours faithfully

gemlouj29

I was unable to use the stike out tool as I have deleted a bit and made it more suitable to my circumstances. I am still a bit confused to the signage as I did park right under a sign in day ligh, and the parking enforcement officer spoke to me. He also has pictures of my car underneath the sign.


Shall I send off the permit that I have for the space?


Thankyou again, any feedback I truly appreciate.

Coupon-mad

Shall I send off the permit that I have for the space?

Well you are best appealing online to POPLA so nothing gets sent off. But yes, you could attach a copy as evidence after you have uploaded your appeal. As you have already given away who was driving the above appeal is worded fine (but newbies should NOT copy this version as most POPLA appeals are best written about the unidentified driver in the third person).

Don't worry about how close you were to a sign - it also depends on the words being clear, etc., and it makes the PPC have to faff about to show photos and a map that they could get wrong. When you see their evidence arrive next month, check it for mistakes and email POPLA at the end to get the last word!

gemlouj29

Great, will get that sent off ASAP and let you know the outcome Thankyou again for all your help.