Made a mistake? Parking eye...

Umkomaas

I said in my earlier post that ParkingEye won't contest a forum-assisted POPLA appeal. But they certainly will with this one - you haven't spotted the number of UKCPS (an entirely different PPC) references there are in your appeal?? They will soon realise you've just copied and pasted this without any apparent understanding and they may just take their chances at POPLA on this one. You need to go through each sentence very carefully!

You will also need the Beavis rebuttal in any PE appeal:

This charge cannot be 'commercially justified' so ParkingEye would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Senior Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle 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.''

You reference 'unlit signage' - was your entry to the pub car park made in darkness, if so, leave it in, if not, it needs to come out.

These are quick observations from a skim read, others may want to make other comments.

HTH

Coupon-mad

There is no loss flowing from this parking event because the car park was not even half full, and ultimately parking would have been free, as I had met the requirements, as customer of the Hotel in question

Hotel? And as Dee said, UKCPS? And as Umkomaas said, was it even dark when you parked?

Come on - proof reading the details is down to you!

Dazed+confused

Sorry, please bear with me- I planned to proof read before sending but wanted to check was on the right page! I'm on the 7th of a run of 15 hour night shifts, I'm not as switched on as I could be. I put in about the unlit signs because I thought it would be useful if they are not following appropriate rules, on your advice I have removed as was only dusk, not dark. Is there something wrong with saying hotel?

Is this better:

Dear POPLA,
I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
The Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was not even half full, and ultimately parking would have been free, as I had met the requirements, as customer of the Hotel in question, to have the ticket refunded. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
Consequently this charge cannot be 'commercially justified' so ParkingEye would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Senior Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale FINANCE Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle 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.''

2) Lack of signage - no contract with driver
I see that the sign is placed high up and consequently they are not easy to notice and the words are unreadable. I put PARKINGEYE to strict proof otherwise. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.

The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''Signs should be readable and understandable at all times''.

3) Lack of standing/authority from landowner
PARKINGEYE 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 PARKINGEYE to strict proof of the contract terms with the actual landowner (not a lessee or agent). PARKINGEYE 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 lawfully showing that PARKINGEYE are entitled to pursue these charges in their own right.

I require PARKINGEYE 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 Code of Practice 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 Code of Practice, 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 Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 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.

An unlit sign of terms placed too high to read, is far from 'transparent'.

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".

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 ill-placed signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, 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 the charge is dismissed.

Northlakes

I will let one of the experts go over the fine detail but to my untrained eye I think you can tidy this up a bit.


Firstly you need to put in the POPLA code number at the top so the assessor will know what the appeal relates to.


Then give the paragraph headings. The assessor will then know you know what you are writing about.
(At that point the assessor will have a clear idea that he will allow the appeal)
Then state,


My detailed arguments are as follows

Highlight in bold the paragraph headings and space neatly.


I don't like the ending sentence which I think is too floury and grovelling.


I would prefer it to read.


I therefore request that my appeal is upheld.

The experts here will guide you further.


Best of luck but you will win!

Coupon-mad

I agree with Northlakes statements above, and 'Hotel' is fine if it was a Hotel (I thought it was a pub?).

And you are missing a point #4 completely so have a look at this example which includes 5 points (ANPR is the one you are missing, assuming this was a postal PCN):

https://forums.moneysavingexpert.com/discussion/comment/65745741#Comment_65745741

Bear in mind you can't use the point #2 shown in the linked example, about the Notice to keeper being non-compliant with the POFA, as I assume you had already given away who was driving in your first appeal? In which case it is OK that you've said things like ' I had met the requirements, as customer...' (whereas we normally tell people never to say 'I' when talking about the parking event).

No worries though, you will win!