UKPC Hounslow - first appeal rejected

rps2

Thanks all for you inputs. Below is Final Version with some additions to the car park signs. Also see the attached picture of car park entrance.

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The Independent Appeals Service
POPLA
PO Box 70748
London
EC1P 1SN

PCN – POPLA reference Number - XXXXXXXXXX
Dear POPLA,

I am the driver of the above vehicle and on DD-07-2014 my vehicle REG NUM was issued with a Penalty Charge Notice (yyyyyyyyyyyyy) which I am appealing. 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.

The driver has a UKPC parking sticker which is visible on the screen in the photo taken at 20:23:11 in the top right corner of windscreen 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.

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.
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.''

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 (see attached picture for car park entrance with no sign).
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 as shown in the picture from UKPC is fundamentally temporary in nature which allows it to be moved or be hidden behind other cars. The sign is not put up on a permanent structure but some temporary barriers. Hence it is not prominent and not really visible and readable if there are cars parked in front of it. When I parked my car I never saw this and only sign in the car park. 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,

rps2

car park entrance pic - hxxp://tinypic.com/m/ifapur/2.

This gets uploaded today evening once I see you comments.

Thanks Again All.

Coupon-mad

rps2 wrote: »

car park entrance pic - hxxp://tinypic.com/m/ifapur/2.

This gets uploaded today evening once I see you comments.

Thanks Again All.

Car park entrance:
http://tinypic.com/usermedia.php?uo=adkBqYNLltsiBK6%2BkIwpjIh4l5k2TGxc#.VB8T5E3wupo

Have you now sent the POPLA appeal? Looks fine to me.

rps2

Thanks C-M,

This has now been appealed online. The only proof attached is the Car park entrance with no signs.
I have not attached the UKPC photographs (believe they will provide the same to POPLA).

Let me know if anything else uploaded would help.

Thanks again !

rps2

Firstly -- Thanks you all !!
This appeal has been Granted on basis of GEPOL.

rps2

The Appellant appealed against liability for the parking charge.
The Assessor has considered the evidence of both parties and has determined that the appeal be allowed.
The Assessor’s reasons are as set out.
The Operator should now cancel the parking charge notice forthwith.

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Reasons for the Assessor’s Determination
On XX July 2014, a parking charge notice was applied to a vehicle with registration mark ZZ11XXX for stopping in a prohibited area.
The Operators’s case is that the terms and conditions of use of site state that no unauthorised parking is permitted at this area.They state that the vehicle in question was seen stopping in a prohibited area and they have provided photographic images to demonstrate this point.
The Appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge notice does not represent a genuine pre-estimate of loss.
The Operator rejected the Appellant’s representations because they state that by stopping in a prohibited area,the Appellant has breached the terms and conditions of the parking contract. They state that they have calculated the parking charge notice as a genuine pre-estimate of loss as they incur significant costs in ensuring compliance to the stated terms and conditions and to follow up any breaches of these identified. They submit that the heads of these costs have been judicially endorsed and commercially justified. They include payments, POPLA and DVLA costs and debt recovery and legal administration costs among other costs.
The burden of proof is on the Operator to prove their case on balance of probabilities. The Operator has provided a breakdown of the costs they incur as a result of the breach however, site-based costs and debt recovery costs appear not to be substantially linked to this breach. Although the Operator has sought to justify the amount of the parking charge notice as being a genuine pre-estimate of loss, I am not satisfied that they have done so.
Accordingly, I allow this appeal.
Aurela Qerimi
Assessor

Ryan_Bryan

Well done on your win. Would you add details at the end of this thread?
https://forums.moneysavingexpert.com/discussion/4488337
Always a good read to give other people the confidence to take the scum on.

rps2

Thanks CM. Won against GPEOL as you said at the start of Thread.

Added to the Decisions Thread. which contains a link to this Thread.

Coupon-mad

rps2 wrote: »

Thanks CM. Won against GPEOL as you said at the start of Thread.

Yep, we could all have said the same to you as it happens every time. Well done for taking that leap of faith with us!

Coupon-mad wrote: »

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

Easy wasn't it? Spread the word!