UKPC Hounslow - first appeal rejected

rps2

Hi,
I have already been through the first stage of appeal and saw this forum a bit late. As read at many places the first one got rejected.
I need to now prepare for POPLA. Find below the first appeal details. I will post the pictures soon as well.

---

UKPC
PO Box 1087
Uxbridge
UB8 9UR

Dear Sir/ Madam,

Reference: 06XXXXXXXXXX/ DD-07-2014

I am writing to formally challenge the above Penalty Charge Notice.
On DD-07-2014 my vehicle VECH-REG was issued with a Penalty Charge Notice for the reason of Stopping in a prohibited Area.
In accordance with the Road Traffic Act 1991, my challenge is on the basis that the contravention did not occur. I didn’t stop in an area controlled by UKPC.

Based on the input provided by the Parking Attendant you should be able to see that the area was marked by temporary barriers and the place where I stopped was not covered by any barrier or marked for restriction. Moreover I believe the Attendant missed the UKPC parking sticker which was there on my car and if you have the photographs you can see that on front of my car.

No Barrier where car is stopped – Visible in picture taken at 20:22:33 & 20:22:41
UKPC Sticker visible in – 20:23:18


For this reason, I look forward to receiving notification that the Penalty Charge Notice has been cancelled within 28 days.

Yours sincerely,


DD July 2014

Pictures below (correct the URL hxxp first)
Pictures taken by ukpc
hxxp://tinypic.com/m/if3p6e/2
hxxp://tinypic.com/m/if3p6g/2

picture taken by me on a later date
hxxp://tinypic.com/m/if3p6o/2

Coupon-mad

Their pics are rubbish, no sign even of a sign!

http://tinypic.com/usermedia.php?uo=adkBqYNLltt41eRwjwLpUIh4l5k2TGxc#.VBHK103wupo

http://tinypic.com/usermedia.php?uo=adkBqYNLltvXCJe0qwyZv4h4l5k2TGxc#.VBHK803wupo

Your photo shows no signs either:

http://oi61.tinypic.com/2h49g5w.jpg

Anyway have a look in post #3 of the Newbies thread and post #3 link 'How to win at POPLA' and find a windscreen ticket case to copy from (changing the PPC's name to UKPC each time and amending any detail that's wrong). As you have already outed yourself as the driver you can also amend the start of the POPLA appeal template to 'I am the driver'.

UKPC will lose due to 'no GPEOL' which the Newbies thread explains.

rps2

Thanks for your reply. I have prepared the POPLA appeal as below. Do I need to send them the photograph I have of the car park entrance as well ?

Appreciate a quick reply so that I can post this tomorrow.

Dear POPLA,

I am the driver of the above vehicle and I am not liable for this PCN. I wish to appeal on the grounds outlined below:

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

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.
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 by a driver who was fully authorised to be parked at that site.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

2. Unclear Signage – No contract with driver

A lack of signs at the entrance to a car park, and unclear wording, creates no contract. UKPC signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B worded below (Mandatory Entrance Signs) UKPC has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
18.2 Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B.
The sign is not prominent and not really visible and readable when there are cars parked in front of it which was the case when the above mentioned car was parked. Not just that the sign is not put up on a permanent structure but some temporary barriers. As such they don’t make it clear their association with the car park and its boundaries. As you can see in the photographs the sign is not readable at all. 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 sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

3. Lack of standing/authority from landowner

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). UKPC has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. 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 lawfully showing that UKPC are entitled to pursue these charges in their own right.

I require UKPC 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 BPA Code of Practice and does not allow UKPC (specifically) to issue proceedings for this sum for this alleged contravention in this car park. UKPC have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of UKPC contracts. In my case with this car park site, if UKPC cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. 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. A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.

I contend it is wholly unreasonable to rely on barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, 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 for POPLA to inform UKPC that the charge is dismissed.

Yours faithfully,

Dee140157

Make this paragraph a separate paragraph and just add words to the effect
The driver purchased a ticket as seen in image xxx, therefore ...

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 by a driver who was fully authorised to be parked at that site.

Other than at looks ok to me.

rps2

Thanks for your help so far.

Do I need to send them the photograph I have of the car park entrance as well ? You can see that in the link.

Let me know and I will be able to post the appeal to POPLA then.

Also Do I need to include my appeal to UKPC when sending to POPLA?

Is posting a better option or online is good enough ( will online retain formatting of the appeal ?

Thanks

ezerscrooge

UKPC try to claim 'commerical justification' so put this at the end of your No GPEOL statements....

_____
[FONT=&quot]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:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]''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”.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.''[/FONT]

Dee140157

Add in what ezerscrooge says. And yes send copy of photo if it helps prove a point, but you do not need to post. Upload to their website is fine.

rps2

Dee140157 wrote: »

Add in what ezerscrooge says. And yes send copy of photo if it helps prove a point, but you do not need to post. Upload to their website is fine.

Shall I post POPLA appeal OR online is better (will the formatting get lost)?

rps2

ezerscrooge wrote: »

UKPC try to claim 'commerical justification' so put this at the end of your No GPEOL statements....

_____
[FONT=&quot]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:[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]''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”.[/FONT]
[FONT=&quot] [/FONT]
[FONT=&quot]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.''[/FONT]

Bit confused. What part of your suggestion shall I include ?

Neither .........
.......punitive.''

All of it as it is copy/pasted?

ezerscrooge

All of it exactly as it appears below my little line. It contains the Beavis rebuttal and refers your assessor to a similar type of case that POPLA dealt with where a PPC tried to claim that the charge is commercially justified .

Keeps things consistent.

Redx

you can upload as a word doc or pdf etc as an attachment on the popla website, then in the submission note box add a precis and say "SEE ATTACHED APPEAL" for the full monty

attach any evidence too