actual not pre-estimate (of losses)

juan_antonio

All,

I recently parked in a car park managed by UK Parking Solutions and found the machine only accepted cash so naively rushed my two year old and 4 month old down the road to the place we were about to have Sunday lunch so I could get change there. Ten minutes later upon return the "operative" had already pasted a Notice to Driver on my screen with a £100 fine (reduced to £60 for quick payment).

I appealed to UKPS explaining what happened and requested evidence of pre-estimate of losses. In their letter which predictably rejects the appeal they have stated "when a parking charge is issued, the operative, who is self employed, raises an invoice to the company and since he/she has issued the notice properly, he/she would require payment, hence we have actual not a pre-estimate".

I intend to appeal on the grounds of the extortionate "charge" and welcome any feedback on how this might be approached with POPLA in light of UKPS's comment that the loss was allegedly actual rather than pre-estimate.

Kind regards,

Juan

pogofish

Have you read the Newbies Sticky? - the effective arguments at POPLA are all detailed there.

Nodding_Donkey

It's called BS.

Just appeal to POPLA with the usual from the newbies thread.

peter_the_piper

I've wonder if his losses are actually £100, why would he give a discount of £40.

hoohoo

In your POPLA appeal, ask to see the actual invoice.

There will not be one, because UKPS are lying. They could not run a business if they paid their wardens £100 per ticket issued.

juan_antonio

Thanks for the swift feedback folks.
I'll submit an appeal to poppa based on disproportionate pre-estimate of losses.

Redx

juan_antonio wrote: »

Thanks for the swift feedback folks.
I'll submit an appeal to poppa based on disproportionate pre-estimate of losses.

I wouldnt

I would include it as maybe one of 4 or 5 appeal points

single appeal points are risky, even though it may well win on that point anyway , remember, you only get one chance at this

Hot_Bring

Make sure you use all the appeal points - not just GPEOL.

As for this :

"when a parking charge is issued, the operative, who is self employed, raises an invoice to the company and since he/she has issued the notice properly, he/she would require payment, hence we have actual not a pre-estimate"

REALLY ?????

> So I can assume each operative declares his income to the taxman and pays his / her taxes directly to HMRC ?

> If the loss is to that SELF EMPLOYED individual then UKPS have no right to be asking you for anything. They've lost nothing. Or are they saying they don't pay their suppliers ( as the operative would be if they are really telling the truth ) unless they are paid ?

I've seen some lies from PPCs but that one probably takes the biscuit.

juan_antonio

ALL,
IS THIS MORE LIKELY TO GET THE DESIRED OUTCOME?
ANY AMENDMENTS REQUIRED?
JUAN

Dear Sir / Madam,

I am the registered keeper & 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 following from this parking event because the car park was not even half full, so there was no loss of potential income in a free car park.

I asked the Operator to present evidence of the pre-estimate of losses and they responded:-
"When a parking charge notice is issued, the operative, who is self employed, raises an invoice to the company and since he/she has issued the notice properly, he/she would require payment, hence we have actual not a pre estimate".
Clearly this not irrelevant, nor is it a credible argument on several levels. It would will be interesting how they are able to justify this if challenged and asked to produce evidence.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses following 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. I therefore believe the charges are punitive.

2) No contract with driver
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. There was no consideration/acceptance and no contract agreed between the parties.

3) Lack of standing/authority from landowner to issue tickets
UK Parking Solutions 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 UK Parking Solutions to strict proof of the contract terms with the actual landowner (not a lessee or agent). UK Parking Solutions 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 lawfully showing that UK Parking Solutions are entitled to pursue these charges in their own right.

I require UK Parking Solutions 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 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 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.

4) 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.

A lack of signs or markings to indicate an area not for parking , is far from 'transparent'.

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.”

I contend it is wholly unreasonable to rely a lack of signs/markings in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, 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 the charge is dismissed.

Yours Sincerely,

The_Deep

What they are saying In effect is that the ticket issuing chappie is on commission, for every ticket which he issues he gets a payment.

OK nothing wrong with that on private land, every time a car salesman sells a car he gets a bung, but, what happens if the TIC issues a ticket incorrectly, does he stiil gets his silver pieces, I very much doubt it.

Coupon-mad

ALL,
IS THIS MORE LIKELY TO GET THE DESIRED OUTCOME?
ANY AMENDMENTS REQUIRED?
JUAN

That looks fine to me. They'll never convince POPLA with that 'loss' argument!