Dara debt recovery on behalf of J.A.S parking solutions

GreenEye_2

Hi,
I've received a 'notice to keeper' by Dara debt recovery on behalf of J.A.S parking solutions. I've been reading through the various threads and trying to digest it all. Before I send off my appeal I just wanted to clarify some points...

After reading schedule 8 of the POFA 2012 the NTK has all the various points it needs to however doesn't have anything on there about how to appeal or who to appeal to, am I right in thinking it has to have this and therefore I can add it in to the appeal letter?

Aside from this on the above point. The NTK letter informs me the parking charge notice was dated the 18/06/2014, the date of the NTK is dated 03/09/2014 which is well over 56 days, would this render it invalid anyways?

Many thanks in advance

Redx

your appeals go to JAS, using the details in the NEWBIES sticky thread

see this similar complaint here https://forums.moneysavingexpert.com/discussion/4912828

do not mention the driver or admit driving, keep it RK only , as its an extra appeal point (they can pursue invoices for up to 6 years) - but if its out of time they can only pursue the driver in law, not the RK, so its a valid appeal point in any defence

GreenEye_2

Having spent a few hours scrolling through the what seems like never ending threads I haven't been able to find a template for making the first appeal to the ppc? Is there one or am I just being blind?

Dee140157

You are sadly being blind. Go to newbie advice thread at top of forum (see my signature) and it is there in post 1.

You will need to get used to going to that thread. I refer to it just about every day!

GreenEye_2

I had read that thread first believe it or not, but then got caught up with the links upon links to other threads!

Anyho, appeal sent via their website, just waiting for the rejection before going on to the next stage in the process!!

GreenEye_2

Ok, so my appeal has been rejected by JAS.

Im in the process of appealing through popla. Ive seen a JAS popla template which by Dave.b which is worded far better than i could have done and is very relevant to my own, with the added extra of making note of the 56 days mentioned in schedule 8.

Could someone have a look and let me know before i send it off or if need be how i should tweak the last point.

Many thanks

APPEAL RE: PPC Name CHARGE ******/******,*********
CAR PARK **/**/2014, VEHICLE REG: **** ***

I am the registered Keeper of the above vehicle and I am appealing against above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

1 UNCLEAR, INADEQUATE AND NON-COMPLIANT SIGNAGE

Due to their high position, overall small size and the barely legible size of the small print, the signs in this car park are very hard to read, understand and no notices at all are positioned near the entrance or exists to any of the shops.

I contend that the signs and any core parking terms JAS are relying upon were too small for any driver to see, read or understand. I request that POPLA check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs on this land (wording, position, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2])
As a POPLA assessor has said previously in an adjudication
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.
The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding, rather than simply the nominal amount presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

2 CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE CHARGES

JAS do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

I would also request that POPLA to please check whether JAS have provided a full copy of the actual contemporaneous, signed & dated contract with the landowner/occupier (not just a signed slip of paper saying it exists or someone has witnessed it) and check that it specifically enables this Operator to pursue parking charges in their own name and through the court system. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice.

I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.


3 NO CONTRACT WITH THE DRIVER

There is no contract between PCC and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

4 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. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."
5 UNREASONABLE

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.”
6 NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS

There was no parking charge levied, the car park is “free”. On the date of the claimed loss it was only at xx% capacity and there was no physical damage caused. There can have been no loss arising from this incident. Neither can JAS lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £5.00 or private NCP for all day parking. This is all the more so for the additional charges which operator states accrues after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by about 45% by early payment that it is unreasonable to begin with.

7 UNLAWFUL PENALTY CHARGE

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to what the Police and Council Wardens issue.

8 NOT COMPLIANT UNDER SCHEDULE 8 OF THE POFA 2012

After reading through the section of law which relates to this matter I quote specifically sub section (5) "The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given".
The date for the notice to driver was **** 2014, a 'Notice to Keeper' was received on **** 2014 which takes it well over the 56 days referred to in section (5) as above.

This concludes my appeal.

Redx

that dave.b was approved for posting to popla back when he did it, so although you may need to tweak it a little, its usually good to go for a JAS incident, especially any "walking off site" incident

Coupon-mad

That's a fairly old template as it cites HMRC v VCS which doesn't help the argument as that case was appealed.

Also this should read JAS:

''There is no contract between [STRIKE]PCC[/STRIKE] JAS and the driver''

Point #7 can be deleted as it adds nothing.

Point #8 about the NTK is a winning point and could even be number one. You could also add that as well as being fatally late the wording is not at all compliant* with the requirements of paragraph 8 of Schedule 4 of the POFA so no keeper liability has been established at all.


* we don't need to see it - it won't be compliant! You could attach the NTK as evidence after submitting the POPLA appeal online. Tick 3 out of 4 appeal boxes.

GreenEye_2

Thanks for looking over it for me. I will attach the NTK to the appeal.