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Will this do it for my POPLA appeal?
smiledotcom
Posts: 47 Forumite
Hi there,
I have at this stage received my NTK letter, have appealed the PCN (to CP Plus) and this has been refused (on grounds of Landowners Authority and Amount Charged) but I have been given my POPLA code to make an appeal.
Just to re-cap. I received the PCN at my workplace car park (NHS hospital in England) for "obstruction" of another vehicle.
This is my letter of appeal to POLA, does it look OK?
Thanks in advance for any advice
Dear POPLA Assessor,
I am the registered keeper of xxxxxx and I wish to appeal the Care Parking PCN xxxxxxxx on the following basis:
1. The Charge is not a genuine pre-estimate of loss
2. CP Plus have formed no contract with the driver (lack of signage, no consideration/acceptance).
3. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012.
4. Lack of standing/authority from landowner
5. Unreasonable/Unfair Contract Terms.
Explained below:
1. The Charge is not a genuine pre-estimate of loss.
The parking charge is not a genuine pre-estimate of loss. A valid permit and scratch card had been purchased and both were clearly on display on the day of the incident. This permit allows parking in any designated staff car park. Photographic evidence supplied by CPP confirms the location as the staff parking area.
The parking charge should compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges.
In this instance, unpaid charges are nil as a permit and scratch card for the vehicle was purchased well before the date of issue of the Parking Charge Notice (PCN) and was in force at the time. Any breakdown purporting to be a genuine pre-estimate of loss cannot include general business expenses because these would remain the same whether or not there were any alleged breaches of contract by drivers.
2. CPP have no contract with the driver of the vehicle; no consideration nor acceptance has flowed between the parties so the elements of a contract do not exist. The issue of a staff parking permit and parking privileges is strictly between the employer and staff member and is the only extant contract relating to parking this car on this site by this driver. Despite what they may say, CPP cannot re-offer the same parking space on different terms and allege a charge is due when there has been no loss suffered and the driver is permitted to park there.
CPP 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. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.
3. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012. This is on two grounds:
(a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at 09.15 am on the day in question.
(b) The Notice to Keeper does not identify the 'creditor'.
POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. As I was not the driver myself, there is no case against me at all so it is, at best, surprising and irksome that CPP are pursuing this matter and wasting my time. I expect POPLA will see the significance of an operator trying to pursue a keeper, in a case where no keeper liability can be established by virtue of the operator's own failures.
4. Lack of standing/authority from landowner.
CP Plus 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 CP Plus to strict proof of the contract terms with the actual landowner (not a lessee or agent). CP Plus 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 showing that CP Plus are entitled to pursue these charges in their own right in the courts.
I require CP Plus 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 CoP 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 CoP, 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.
5. Unreasonable/Unfair Contract Terms.
I would assert that the charge being claimed by CP Plus is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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 sign of terms placed as described in point 2 above, is far from 'transparent'.
Schedule 2 of the 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 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 CP Plus that the charge is dismissed.
Yours faithfully
I have at this stage received my NTK letter, have appealed the PCN (to CP Plus) and this has been refused (on grounds of Landowners Authority and Amount Charged) but I have been given my POPLA code to make an appeal.
Just to re-cap. I received the PCN at my workplace car park (NHS hospital in England) for "obstruction" of another vehicle.
This is my letter of appeal to POLA, does it look OK?
Thanks in advance for any advice
Dear POPLA Assessor,
I am the registered keeper of xxxxxx and I wish to appeal the Care Parking PCN xxxxxxxx on the following basis:
1. The Charge is not a genuine pre-estimate of loss
2. CP Plus have formed no contract with the driver (lack of signage, no consideration/acceptance).
3. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012.
4. Lack of standing/authority from landowner
5. Unreasonable/Unfair Contract Terms.
Explained below:
1. The Charge is not a genuine pre-estimate of loss.
The parking charge is not a genuine pre-estimate of loss. A valid permit and scratch card had been purchased and both were clearly on display on the day of the incident. This permit allows parking in any designated staff car park. Photographic evidence supplied by CPP confirms the location as the staff parking area.
The parking charge should compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges.
In this instance, unpaid charges are nil as a permit and scratch card for the vehicle was purchased well before the date of issue of the Parking Charge Notice (PCN) and was in force at the time. Any breakdown purporting to be a genuine pre-estimate of loss cannot include general business expenses because these would remain the same whether or not there were any alleged breaches of contract by drivers.
2. CPP have no contract with the driver of the vehicle; no consideration nor acceptance has flowed between the parties so the elements of a contract do not exist. The issue of a staff parking permit and parking privileges is strictly between the employer and staff member and is the only extant contract relating to parking this car on this site by this driver. Despite what they may say, CPP cannot re-offer the same parking space on different terms and allege a charge is due when there has been no loss suffered and the driver is permitted to park there.
CPP 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. A lack of signs at the entrance to a car park, and unclear wording, is a breach of the BPA Code of Practice and creates no contract.
3. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012. This is on two grounds:
(a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at 09.15 am on the day in question.
(b) The Notice to Keeper does not identify the 'creditor'.
POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. As I was not the driver myself, there is no case against me at all so it is, at best, surprising and irksome that CPP are pursuing this matter and wasting my time. I expect POPLA will see the significance of an operator trying to pursue a keeper, in a case where no keeper liability can be established by virtue of the operator's own failures.
4. Lack of standing/authority from landowner.
CP Plus 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 CP Plus to strict proof of the contract terms with the actual landowner (not a lessee or agent). CP Plus 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 showing that CP Plus are entitled to pursue these charges in their own right in the courts.
I require CP Plus 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 CoP 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 CoP, 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.
5. Unreasonable/Unfair Contract Terms.
I would assert that the charge being claimed by CP Plus is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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 sign of terms placed as described in point 2 above, is far from 'transparent'.
Schedule 2 of the 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 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 CP Plus that the charge is dismissed.
Yours faithfully
0
Comments
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This needs merging with your earlier thread. Ideally on this parking forum, you shouldn't have started a new thread for this stage, which is why you got no response as people couldn't simply see the background of your ticket without clicking on your username to hunt out your thread:
https://forums.moneysavingexpert.com/discussion/5014280
Please pm Crabman and ask him to merge them. The POPLA appeal looks strong to me except that for CP Plus I would add more into the 'no GPEOL' paragraph (as they won a case a few months ago, having re-written their GPEOL statement). You will see a longer version in the CP Plus POPLA appeal example I have linked in the Newbies thread post #3 'How to win at POPLA'. It's not wholly relevant to your case as that one is a MSA postal PCN but the argument about them not being able to re-write their GPEOL after the event, still holds true for your case.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Hi Coupon-mad,
Many thanks for your advice. I have since won this appeal - CP Plus declined to even go through the appeal process!
I want to share my appeal application with others so they may refer to it.
Please can you advise me the best place to post this update so that it gets viewing traffic.
Should I attach it to my very first post so that others are able to follow the whole thread?0 -
If you had lodged a POPLA appeal then you can update the outcome in 'POPLA decisions' (top of the forum) even though in fact CP Plus bailed out!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0
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