POPLA Next

What_now

Hi All


After following Coupon-mad’s advice for newbies, we sent of an appeal to G24 using the generic letter linked in the thread.

Unfortunately G24 has rejected this giving me 3 points as to why:

One regarding the ‘Not a genuine pre-estimate of loss’ stating they have obtained legal advice in this regard. They also state the case of Robophone Facilities v Blank the onus saying that the charge is a penalty.

The other two paragraphs state that I was specific enough with signage and the authority to issue charges, stating both times that they have been audited by the British Parking Association.

Then they give me some options:

• Pay
• Use POPLA and appeal (they provide a 10 digit code)
• Do nothing… and they will recover via debt recovery and then potentially go to court
• Supply a copy of the receipts for the day in question or a bank statement

Then attached is a Parking on private Land Appeals sheet all in red….

I have the full 8 page document (and to original letter sent and my correspondence) but I didn’t want to post. Not sure if that’s the right thing to do.
Now my next step is to Appeal. Any advice?


Thanks
NW

Dee140157

Go to post 3 of newbie thread and use the link to find a suitable POPLA appeal. If there isn't a h24 one, then find one that is suitable for your situation and adapt and post here for checking.

If it was a supermarket, then you should be complaining like mad to the shop. Evidence of receipts may be enough to see of a PCN, but it seems odd they have issued with a POPLA code if they say you can send receipts. I all honestly this could be a time delaying tactic.

I would go ahead and draft appeal.

ezerscrooge

The usual "we are right" quasi-legalistic rubbish.

Get your appeal in and post on here before you send it.

Coupon-mad

Any 'ANPR camera' version of a POPLA appeal version would kill this off, such as those written about Highview or ParkingEye. Look at the examples in the Newbies thread 'How to win at POPLA' or search the forum for keywords 'G24 POPLA' (but if you do that, ONLY use a 2014 recent version!).

What_now

First off, I would like to thank you for your quick replays.


Below is a very generic template, written by Coupon Mad, slightly adapted. It does however recall a large number of cases involving ParkingEye:




Dear POPLA Assessor,
Re: G24 fake PCN, verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from G24. Notwithstanding that we were genuine customers of the principal (B&M), I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. G24 notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. 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.

This charge from G24 as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

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 and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect G24 might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, 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.'' There is a presumption... 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".

No doubt G24 will send a template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''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.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

2) No standing or authority to pursue charges nor form contracts with drivers
G24 do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against G24 which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers.

In ParkingEye v Sharma, Case No. 3QT62646 in the Brentford County Court 23/10/2013 District Judge Jenkins checked the ParkingEye contract and quickly picked out the contradiction between clause 3.7, where the landowner appoints ParkingEye as their agent, and clause 22, where is states there is no agency relationship between ParkingEye and the landowner. The Judge dismissed the case on the grounds that the parking contract was a commercial matter between the Operator and their agent, and didn’t create any contractual relationship between ParkingEye and motorists who used the land. This decision was followed by ParkingEye v Gardam, Case No.3QT60598 in the High Wycombe County Court 14/11/2013 where costs of £90 were awarded to the Defendant. District Judge Jones concurred completely with the persuasive view in ParkingEye v Sharma that a parking operator has no standing to bring the claim in their own name. My case is the same.

3) Flawed landowner contract
Under the BPA CoP Section 7, a landowner contract must specifically allow the Operator to pursue charges in their own name in the courts and grant them the right to form contracts with drivers. I require G24 to produce a copy of the contract with the landowner as I believe it is not compliant with the CoP and that it is the same flawed business agreement model as in Sharma and Gardam.

Indeed I submit (and as I have raised the issue, G24 must now disprove) that their Contract or User Agreement with B&M is likely to contain a secret 'genuine customer exemption' clause which in fact exempts B&M customers like us from these spurious charges. Not only have G24 not allowed my initial appeal that the driver and passenger were genuine B&M customers, but at the outset, when they allege a contract was formed, (which is denied) G24 failed to alert the driver to that secret clause. Which leads me to the next point:

4)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between G24 and the driver
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because G24 are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) G24 have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car, who were there at the invitation of B&M, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.

5) ANPR Accuracy and breach of the BPA Code of Practice 21.3
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that B&M present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, 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 just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put G24 to strict proof to the contrary.

I request that my appeal is upheld and for POPLA to inform G24 to cancel the PCN.

Yours faithfully,

THE REGISTERED KEEPER

Coupon-mad

I would get rid of these bits from the no GPEOL first point of appeal:

''This charge from G24 as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.''

''No doubt G24 will send a template bluster attempting to assert some ''commercial justification'' but I refute their arguments. In a recent decision about a ParkingEye car park at Town Quay Southampton, POPLA Assessor Marina Kapour did not accept ParkingEye's generic submission that the inclusion of costs which in reality amount to the general business costs incurred for the provision of their car park management services is commercially justified. ''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.''

My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.''


And I would replace those bits with the no GPEOL wording from here:

https://forums.moneysavingexpert.com/discussion/comment/66452330#Comment_66452330

I would also get rid of the stuff about PE v Sharma and make your point 3 more like the linked point 3.

Then get rid of your point 2 (which will have been covered already by the new point 3!) and instead make point 2, a version like the linked point 4 'The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012'. If you look at your NTK it won't be compliant even if it was received by day 15.

What_now

Thank you Coupon-Mad for the swift response
Dear POPLA Assessor,
Re: G24 fake PCN, verification code xxxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from G24. Notwithstanding that we were genuine customers of the principal (B&M), I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. G24 notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. 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.


Nor is the charge 'commercially justified'. If G24 cites 'ParkingEye v Beavis & Wardley' it's irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''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...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.''

G24 and POPLA will be familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect G24 might cite it. However, therein is the classic statement, in the speech of Lord Dunedin, 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.'' There is a presumption... 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".
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.
Like other operators, it is in the public domain that G24 have recently jumped on the bandwagon and manufactured a newly re-written ‘loss’ statement. This is surprisingly similar to that used by PPS (after PPS had won a couple of anomalous POPLA decisions). This allegedly plagiarised calculation is now common to several operators and POPLA has seen it and dismissed it before. A generic 'model loss statement' cannot possibly show any regard to calculating before the event, a genuine pre-estimate of the likely loss which might typically flow from a parking event. I contend G24's calculation is merely a conveniently-totalled sum of actual loss suffered, made afterwards, rather than a genuine pre-estimate of loss.

As such, POPLA should I hope, see through it just as Ricky Powell did in 6861754004 (re PPS, the originators of the generic calculation G24 now use):
''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

I contend that G24's calculation (even if it is a more credible effort than those recently presented) must fail as it has been re-written recently and is not a genuine PRE-estimate. In fact it would be a 'post-estimate' after the event, of figures designed to match the charge. As such, any re-write by G24 would be disingenuous and not acceptable, according to the words of Mr Greenslade: “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

I put G24 to strict proof of the date when the GPEOL was decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when this PCN sum was decided in advance, specifically for this client in this car park and showing the likely losses caused by this alleged contravention.


2) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

The following points (A)-(E) may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4 para 8:
(A) The 'period of parking' is not shown, only the time of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b));
(B) It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 8(2)(c))
(C) It specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking (in contravention of POFA 12 Schedule 4 para 8(2)(d));
(D) It does not identify the creditor (as required by POFA 12 Schedule 4 para 8(2)(h)).
(E) The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 para 8(2)(i)).

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A 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 prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.


3) Lack of standing/authority from landowner

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put G24 to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). G24 has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. 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 G24 are entitled to pursue these charges in their own right.

I require G24 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 BPA Code of Practice and does not allow G24 (specifically) to issue proceedings for this sum for this alleged contravention in this car park. G24 have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of G24 contracts. In my case with this car park site, if G24 cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. 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. A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.


4)The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between G24 and the driver

Isubmit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because G24 are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) G24 have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car, who were there at the invitation of B&M, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.


5) ANPR Accuracy and breach of the BPA Code of Practice 21.3

This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that Parking Eye have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that B&M present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLAhow their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, 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 just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put G24 to strict proof to the contrary.

I request that my appeal is upheld and for POPLA to inform G24 to cancel the PCN.

Yours faithfully,

THE REGISTERED KEEPER

Coupon-mad

Yep that's a very good example of a G24 appeal so I'll link it as an example for Newbies (we didn't have a G24 one, so you have helped others by creating that).

Yours is fine as long as the detail is correct (i.e. that it was a B&M car park) and that there is no 'date sent' as such, or the word 'creditor' identified specifically on the Notice to Keeper. I expect it's not but double check the NTK flaws are relevant.

What_now

Thank you Coupon Mad (and the gang), for all of the effort you put into this forum and the personal coaching you have given to all of us.


When we 1st received the fake PPC our 1st initial instinct was to pay. My mother, an ambassador of MSE, told us not to lie down and roll over.


A letter to B&M is now in order.


I'll post our results when received.

Foxy16

somehow posted on incorrect thread

What_now

Hi All


Just a quick update, the POPLA was accepted and G24 must cancel the charge.


Primarily it was won on the grounds of G24 not being the land owner or producing evidence that it has the landowners authority to issue parking charge notices. No other points were mentioned.


Thank you all for the help and converting me into an ambassador of this forum.


What Now