G24 LTD response to our challenge

Coupon-mad

Yes it's a winner - I thought 'paragraph 4' should read 'paragraph 9' though?


2. Failure to meet conditions for POFA Schedule 4 paragraph 4


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;

Phil_E

Here is the final draft I am submitting with amendments included:

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 9
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 9 - The Notice to Keeper issued by G24 fails to meet the conditions required for POFA schedule 4 paragraph 9 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 deemed delivered 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.