G24 LTD response to our challenge

jazzyb88

Just to add something here (because I got the same response from G24 word-for-word after my initial appeal), I added these little segments into my appeal to POPLA. Not sure if you should do the same as I didn't post this on the forums before to be checked, but looked okay to me.

Otherwise, I just adapted one of the PE appeals that was linked in the sticky. Good luck! :beer:

G24's mention of liquidated damages

“In relation to your suggestion that your parking charge is not a genuine pre-estimate of loss we confirm we have obtained legal advice in this regard and have been advised that not only can our parking charges be justified on the basis that they are in line with the British Parking Association’s guidelines, and that they amount to a genuine pre-estimate of loss, but they are likely to amount to liquidated damages (where the issue of pre-estimate of loss is not relevant). This is because the Court’s position is that where the parties to a contract agree to fix the amount which is to be paid by way of damages in the event of a breach of contract - which is the basis of the contract detailed on our signage - a sum stipulated in this way (particularly in circumstances where there is difficulty in calculating a precise estimation) is classed as liquidated damages. Either way, our parking charges are fully enforceable and no not amount to a “penalty”. You should also be aware that in accordance with the case of Robophone Facilities v Blank the onus of proving that an amount claimed is a penalty, rather than liquidated damages, is upon you (as the party against whom the parking charge is claimed)”

Interestingly, Lord Justice Diplock’s verdict on the Robophone Facilities v Blank case was:

“‘the right of parties to a contract to make such a stipulation is subject to the rule of public policy that the court will not enforce it against the party in breach if it is satisfied that the stipulated sum was not a genuine estimate of the loss likely to be sustained by the party not in breach, but was a sum in excess of such anticipated loss and thus, if exacted, would be in the nature of a penalty or punishment imposed upon the contract-breaker.”

Therefore, I am to believe that not only is the issue of genuine pre-estimate of loss entirely relevant to my case but also for G24 Ltd trying to prove liquidated damages, which they assert. Secondly, it appears G24 Ltd is trying to claim that not only is the charge due to a breach of contract but also amounts to a genuine pre-estimate of loss. I am of the belief that they cannot claim for both i.e. it must either being a genuine pre-estimate of loss or a breach of contract. In addition, and to quote Lord Justice Diplock, because I believe the sum is in excess of anticipated loss, that the charge is punitive in nature and therefore a penalty.

I would also like to point out that G24 Ltd has misinterpreted basic law. As claimant, it is their job to prove their case, not my job to disprove it. In light of this, perhaps G24 Ltd should continue to obtain some more legal advice.

G24's not correctly issuing the Notice to Keeper (NtK)

I have recently returned to the car park following receipt of the PCN to inspect the signage and noted that one of the signs reads “You park at your own risk to your property and agree to the vehicle’s registered keeper being issued with a Parking Charge Notice by post or on your vehicle.”

I believe, without G24 Ltd specifically stating this anywhere, they are trying to allude to keeper liability that was introduced as part of the Protection of Freedoms Act (PoFA) in 2012.

However, upon further inspecting the Notice to Keeper (NtK), it is clear that it does not comply with all of schedule 4, paragraph 8.2 of the PoFA, specifically:

(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);

If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

Finally, I have to say that bartos1976 (who's appeal template I adapted for most of my appeal) had this brilliant segment, which I added to my appeal:

Any photos supplied by G24 Ltd to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera & flash and the angle may well not show how high the signs are. As such, I require G24 Ltd to state the height of each sign in their response and to show contemporaneous photo evidence of these signs in the dark without the aid of flash photography.

Lo and behold, what do G24 submit as part of their 'evidence pack' to POPLA? 28 pictures of signs all in broad daylight and all close up! It's as though OP was a mind-reader

LM9

For what it is worth, I've just won a POPLA appeal where the parking company (VCS in my case) tried to make me justify my assertion that it was not GPEoL and the assessor's (Nadesh Karunairetnam) response was as follows:

The operator rejected the representations made by the appellant. With regard to the issue of genuine pre-estimate of loss, the operator argued that the parking charge was liquidated damages. However, the operator stated that the onus was on the appellant to produce evidence as to why it did not reflect a genuine pre-estimate of loss. Further, the operator stated that if the evidence provided by them was insufficient they should be contacted before the appeal was decided. No break down of how they quantified the pre-estimate of loss was provided.

In order to show that the parking charge is not punitive, the parking charge should be shown to reflect a pre-estimate of the loss suffered by the operator as a result of that breach. The onus is on the operator to show this, in particular by providing a cost break down of the genuine pre-estimate of loss.

Contrary to the assertion of the operator, it is unnecessary for the appellant to explain why they believe the charge does not reflect a genuine pre-estimate of loss. All the appellant needs to do is raise the issue and it is then for the operator to prove that the charge reflects the loss. The operator must demonstrate this with reference to an itemised cost break down of the loss. Moreover, it is for the operator to provide all the relevant evidence to POPLA for this appeal to be decided, rather than for POPLA to contact the operator if their evidence is believed to be insufficient.

You won't need this to help your appeal, but it can't harm to remind POPLA that parking companies are treating them like idiots and trying to ride roughshod over the rules.

You could play them at their own game though and take the view that clearly as you cannot estimate their losses without their full accounts, including employment contracts, then they must send you this data immediately (copies to POPLA) and arrange extra appeal time whilst you examine the data thoroughly.

Umkomaas

LM9 wrote: »

For what it is worth, I've just won a POPLA appeal where the parking company (VCS in my case) tried to make me justify my assertion that it was not GPEoL and the assessor's (Nadesh Karunairetnam) response was as follows:

You won't need this to help your appeal, but it can't harm to remind POPLA that parking companies are treating them like idiots and trying to ride roughshod over the rules.

You could play them at their own game though and take the view that clearly as you cannot estimate their losses without their full accounts, including employment contracts, then they must send you this data immediately (copies to POPLA) and arrange extra appeal time whilst you examine the data thoroughly.

You've definitely got your head around things LM9 - excellent piece of advice.

Well done on your win; VCS seem to be trying this 'appellant to prove' nonsense on GPEOL.

Phil_E

Coupon-mad wrote: »

This bit doesn't quite make sense:


Specifically, the alleged breach occurred on 29th July 2014, and the notice to keeper was received 22 days later on 19th August 2014. Even if the Notice To Keeper was posted by the operator on the day it is dated (18th August 2014), the earliest it could have been delivered by ordinary post would have been 20th August, which is on the 19th day.

Coupon-Mad

I noticed I made a mistake on the number of days from the alleged breach and the date the letter was received. It is not 22 days but was meant to be 21 days.

I have adjusted the paragraph to try and make it a little more clear. Do you think it might be best to keep this point in the letter or is it better for it to be removed altogether?

Revised point:
Specifically, the alleged breach occurred on 29th July 2014, and the notice to keeper was received 21 days later on 19th August 2014 exceeding the 14 day limit for the Notice to Keeper to be delivered. However, the date of issue of the Notice to Keeper (18th August 2014) also exceeds the 14 day limit from the day of the alleged breach by 6 days.

Many thanks

Phil E

Phil_E

jazzyb88 wrote: »

Finally, I have to say that bartos1976 (who's appeal template I adapted for most of my appeal) had this brilliant segment, which I added to my appeal:



Lo and behold, what do G24 submit as part of their 'evidence pack' to POPLA? 28 pictures of signs all in broad daylight and all close up! It's as though OP was a mind-reader

Jazzyb88

Many thanks for your post! I will include your points if that's OK?

The alleged breach in my case was during the daytime, can I still use the point about the signs not being visible during the night? Am I correct in understanding that the point is about getting at their general compliance in all light and weather conditions?

Thanks

Phil E

Umkomaas

Phil_E wrote: »

Jazzyb88

Many thanks for your post! I will include your points if that's OK?

The alleged breach in my case was during the daytime, can I still use the point about the signs not being visible during the night? Am I correct in understanding that the point is about getting at their general compliance in all light and weather conditions?

Thanks

Phil E

No! You're not fighting a battle against PPCs in general (but come back and help us out with bigger picture after you've won), you're dealing specifically with your individual parking event.

You don't need to give a PPC any opportunity to debunk your appeal by highlighting issues they can prove inappropriate in it, threatening the very basis of your case.

Phil_E

Umkomaas and LM9 Thank you very much for your posts.

I'll be posting my amended draft shortly and will certainly appreciate any feedback you have.

Thank you in advance!

Phil E

Phil_E

Hi Guys,

I have amended my draft to include some of the points that have been kindly put forward on this thread. I could not include the points regarding the signs, as I am unable to revisit the site to check the signs.

I would be very grateful for your valuable feedback!

Amended Draft:

Dear POPLA Assessor,

I'm the registered keeper of the vehicle above and I am appealing against the parking charge above. I believe I am not liable for the parking charge on the grounds stated below; I would ask that all points are taken into consideration.

1. Non genuine pre-estimate of loss
2. Failure to meet conditions for POFA Schedule 4 paragraph 4
3. Flawed contract with landowner/Authority to issue PCN's
4. Unlawful penalty charge
5. ANPR accuracy


1. Non genuine pre-estimate of loss - The Amount of £100 demanded by G24 is not a genuine pre-estimate of loss. The estimate must be based upon loss following from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre. As this is a free car park there can be no losses incurred from onsite parking charges and as the car park was virtually empty, no loss of retail revenue. I request G24 to provide a full breakdown of how these costs are calculated, all these costs must represent a loss resulting from the alleged breach and the pre-estimate of loss must add up to the amount demanded of £100.

As in previous cases the parking company has included day to day running costs of the business (for example Wages, Uniforms, Signage erection, Installation of ANPR cameras, Office Costs, Maintenance Costs) these would have occurred had there been a breach or not and therefore may not be included in this pre-estimate of loss.

Given that G24 charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention (whether serious/damaging, or trifling as in my case), it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

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, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

G24 stated in their response to my appeal: “In relation to your suggestion that your parking charge is not a genuine pre-estimate of loss we confirm we have obtained legal advice in this regard and have been advised that not only can our parking charges be justified on the basis that they are in line with the British Parking Association’s guidelines, and that they amount to a genuine pre-estimate of loss, but they are likely to amount to liquidated damages (where the issue of pre-estimate of loss is not relevant). This is because the Court’s position is that where the parties to a contract agree to fix the amount which is to be paid by way of damages in the event of a breach of contract - which is the basis of the contract detailed on our signage - a sum stipulated in this way (particularly in circumstances where there is difficulty in calculating a precise estimation) is classed as liquidated damages. Either way, our parking charges are fully enforceable and no not amount to a “penalty”. You should also be aware that in accordance with the case of Robophone Facilities v Blank the onus of proving that an amount claimed is a penalty, rather than liquidated damages, is upon you (as the party against whom the parking charge is claimed)”

Interestingly, Lord Justice Diplock’s verdict on the Robophone Facilities v Blank case was:

“the right of parties to a contract to make such a stipulation is subject to the rule of public policy that the court will not enforce it against the party in breach if it is satisfied that the stipulated sum was not a genuine estimate of the loss likely to be sustained by the party not in breach, but was a sum in excess of such anticipated loss and thus, if exacted, would be in the nature of a penalty or punishment imposed upon the contract-breaker.”

Therefore, I am to believe that not only is the issue of genuine pre-estimate of loss entirely relevant to my case but also for G24 Ltd trying to prove liquidated damages, which they assert. Secondly, it appears G24 Ltd is trying to claim that not only is the charge due to a breach of contract but also amounts to a genuine pre-estimate of loss. I am of the belief that they cannot claim for both i.e. it must either being a genuine pre-estimate of loss or a breach of contract. In addition, and to quote Lord Justice Diplock, because I believe the sum is in excess of anticipated loss, that the charge is punitive in nature and therefore a penalty.

I would also like to point out that G24 Ltd has misinterpreted basic law. As claimant, it is their job to prove their case, not my job to disprove it. In light of this, perhaps G24 Ltd should continue to obtain some more legal advice.


2. Failure to meet conditions for POFA Schedule 4 paragraph 4 - The Notice to Keeper issued by G24 fails to meet the conditions required for POFA schedule 4 paragraph 4 to apply and they, therefore, have no right to claim unpaid parking charges from the keeper;

If the Operator wants to make use of the Keeper Liability provisions in Schedule 4 of POFA 2012 and has not issued and delivered a parking charge notice to the driver in the car park where the parking event took place, the Operator's Notice to Keeper must meet the strict requirements and timetable set out in the Schedule (in particular paragraph 9). The notice to keeper was not received within the maximum 14 day period from the date of the alleged breach. Specifically, the alleged breach occurred on 29th July 2014, and the notice to keeper was received 22 days later on 19th August 2014. Even if the Notice To Keeper was posted by the operator on the day it is dated (18th August 2014), the earliest it could have been delivered by ordinary post would have been 20th August, which is on the 19th day.

3. Flawed contract with landowner/Authority to issue PCN's - G24 do not own this car park and are merely agents of the landowner or legal occupier. In their notice and rejection letters G24 have provided me with no evidence that they are lawfully entitled to demand money from a driver or keeper. I put G24 to strict proof to POPLA that they have the proper legal authorisation from the landowner to contract with drivers and to enforce charges in their own name as creditor in the courts for breach of contract. I demand G24 produce to POPLA the contemporaneous and unredacted contract between the landowner and the G24.

The BPA code of practice contains the following:

7 Written authorisation of the landowner
7.1 If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.


4. Unlawful penalty charge - Since there is no demonstrable loss or damage 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. G24 could state the letter as an invoice or request for monies, yet they choose to word it as a 'Charge Notice' in an attempt for it to be deemed as an official parking fine such as the ones issued by Police and local authorities.

5. ANPR accuracy - Under paragraph 21.3 of the BPA Code of Practice, it requires parking companies to make sure ANPR equipment is maintained and incorrect working order. I require G24 to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images.This is important as the parking charge issued is founded entirely on 2 photos of my vehicle entering the car park and leaving the car park at specific times.

In addition to showing their maintenance records, I require G24 to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so"live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is unreliable and unsynchronised. As their whole charge rests upon two timed photos, I put G24 to strict proof to the contrary.

This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if G24 Ltd. fail to address and provide the necessary evidence as requested in the points highlighted above.


Yours Faithfully.

Coupon-mad

Specifically, the alleged breach occurred on 29th July 2014. Even if the Notice To Keeper was posted by the operator on the day it is dated (18th August 2014), the earliest it could have been deemed delivered by ordinary post would have been 20th August, which is on the 19th day.

Still made no sense so change that bit as shown above by removing when it 'was' received and adding 'deemed' (not in bold).

Phil_E

Coupon-Mad

Thank you very much for the feedback. I will make the changes you have kindly pointed out.

Do you think this might be all I need to change before the letter is ready to go?

Phil E