Failed appeal with Park Watch defence systems

bezzy

Hi All

Can anyone help?
I have read through all the forums about making an appeal to POPLA but i can't decide which one is most relevant to my situation.

I received a PCN for "Entering a no access area" which is £60 rising to £100 if not paid soon.
Unfortunately i made the mistake of appealing to Park Watch using mitigating circumstances which i now know was a waste of time.
Does anyone have a template i could use?
I have tried to open attachments on various other posts but i can't so must be doing something wrong.....

Umkomaas

Click on this link to the NEWBIES FAQ sticky:

https://forums.moneysavingexpert.com/discussion/4816822

then go to post #3, and click on the 'How to win at POPLA' blue text which will link you to a range of POPLA appeal examples. Spend a bit of time reading through some and find one that resembles your case.

You're unlikely to find a specific 'Entering a no access area', but they are pursuing you under 'parking enforcement', so most points in appeal examples will apply.

Post up a draft of your appeal and we'll help you fine tune it.

Don't miss your POPLA deadline; they won't accept any appeal beyond that date.

HO87

You need to read the Newbie thread. It might take a while but all of your answers are contained in it - honest. By now you will have realised that it is legal points that will win at POPLA - not mitigation. However, you are not obliged to stick to the points of appeal that you used direct with Park Watch and can use one of the templates - attachments? They are likely to be links to further pages. You don't need to download anything to use one of the templates.

Dee140157

Have a look at this thread for ideas:
https://forums.moneysavingexpert.com/discussion/5035414

bezzy

Thanks for the info everyone

Is It possible for me to use this same appeal as below?
I already admitted to driving the vehicle in my failed appeal
The charge relates to the same "one stop shopping " so hoping i can just copy and paste this one which was a successful appeal by Latte-san


I am the registered keeper and I wish to appeal a recent parking charge from Defence System Ltd. I submit the points below to show that I am not liable for the parking charge:

1) Not relevant Land under POFA 2012; no registered keeper liability
2) The alleged contravention did not take place
3) No landowner contract nor legal standing to form contracts or charge drivers
4) Misleading and unclear signage
5) Amount demanded is a penalty not a genuine pre estimate of loss

1) The location is not "relevant land" within the terms of the Protection of Freedoms Act and no registered keeper liability.

The incident described is by no stretch of the imagination 'parking' so they cannot invoke POFA 2012 in order to claim keeper liability.

The driver has not been identified, yet Defence System Ltd are claiming POFA 2012 registered keeper liability for this charge. The registered keeper is not liable for this charge as the road on front of one stop shopping centre is designated as a bus entry by the council and therefore roads within the front shopping centre are subject to council bylaws and so POFA 2012 does not apply. I put operator Defence System to strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the council Authority that this land is not already covered by bylaws.

2) The alleged contravention did not take place

The occurrence alleged is not a "parking event" within the terms of Protection of Freedoms Act.

The relevant part of the POFA states –(The notice must) 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.

This paragraph in no way applies to the alleged contravention which is ‘entered no access area’. The Parking Charge Notice does not apply to the driver of the vehicle having entered a car park where charges apply nor does it refer to any specified period of parking where parking charges apply.

There was no parking contravention at all. Defence System Ldt are not able to refer to a regulation that applies to stopping on the road. No contravention applicable to POFA actually took place.

3) No landowner contract nor legal standing to form contracts or charge drivers

Defence Systems Ltd has no authority or lacks suffiicient authority to issue charges in relation to alleged occurrences.

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract or that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

4) Misleading and unclear signage

Defence Systems Ltd signage or the signage they are intending to rely upon in this case is deficient in the sense that there are insufficient signs to be seen by motorists when entering the area and that in any event the signage is incapable of establishing the basis of a contract.

It possible for drivers to enter this road without seeing the signs thus no contract can be formed between the driver and Defence System Ltd. The entrance sign is situated on the side of the road on a standard right hand UK car, this makes it difficult for the driver to see or read from inside the car regardless of which side of the road the car park is entered from. All these reasons make it possible for drivers to enter the car park without seeing the signage upon entering.

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. The idea that any driver would accept these terms knowingly is perverse and beyond credibility.

5) Amount demanded is a penalty not a genuine pre estimate of loss

The charge Defence Systems Ltd are seeking to levy does not represent a genuine pre-estimate of their loss or that of their principal.

The charge of £100 is being sought for an alleged breach of the parking terms namely “Entered no access area” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA 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.

On the day in question there was neither damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that:

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed

I request that my appeal is allowed.

Yours faithfully,

Coupon-mad

Yep that looks like the best version available; it will win. It's shocking that they pretend a moving traffic event is a parking event!

busajohn

Hello I am having trouble understanding what action I have to take getting confused with all the questions and answered . I got a parking fine from park watch a division of defence system in Nuneaton Warwickshire . I understand there a way of complaining but being elderly and having computer skills of a brick i'm struggling finding what I have to do with links and stuff anybody help me please and Thanks I was parked on yellow lines on a private road I didn't even know it was a private road it was a exit on a rounderbout

fisherjim

busajohn wrote: »

Hello I am having trouble understanding what action I have to take getting confused with all the questions and answered . I got a parking fine from park watch a division of defence system in Nuneaton Warwickshire . I understand there a way of complaining but being elderly and having computer skills of a brick i'm struggling finding what I have to do with links and stuff anybody help me please and Thanks I was parked on yellow lines on a private road I didn't even know it was a private road it was a exit on a rounderbout

You need to start your own thread and not hijack another one, then you will get help which will be yours and not confuse everyone.;)

trisontana

And it's not a FINE!

ampersand

Hello busajohn -

Copy your post first, then do exactly as fisherjim advises, so you have help specific to your case.

Just go back to the Parking index page, with these words :
Parking Tickets, Fines & Parking

Look left above the list for the words 'NEW THREAD', hit that then paste in your post copied from here.
Are you a BB holder?
How much time do you have left to ask for a POPLA code?

Everybody needs to read the NEWBIES STICKIES. They're labelled as such at the top of that index page of Parking Threads. Have a cuppa handy: you need to read steadily through them a few times.

Things DO become clearer.

This person -
https://forums.moneysavingexpert.com/discussion/5035414
also found it very confusing to begin.

We all did:-)

But it's a fake invoice they've sent you and your goal is to prove this to the Appeals service. That's what your own new Thread will help you do.

busajohn

ampersand wrote: »

Hello busajohn -

Copy your post first, then do exactly as fisherjim advises, so you have help specific to your case.

Just go back to the Parking index page, with these words :
Parking Tickets, Fines & Parking

Look left above the list for the words 'NEW THREAD', hit that then paste in your post copied from here.
Are you a BB holder?
How much time do you have left to ask for a POPLA code?

Everybody needs to read the NEWBIES STICKIES. They're labelled as such at the top of that index page of Parking Threads. Have a cuppa handy: you need to read steadily through them a few times.

Things DO become clearer.

This person -
https://forums.moneysavingexpert.com/discussion/5035414
also found it very confusing to begin.

We all did:-)

But it's a fake invoice they've sent you and your goal is to prove this to the Appeals service. That's what your own new Thread will help you do.

where is the Just go back to the Parking index page, with these words :
Parking Tickets, Fines & Parking where is this page sorry