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Lovely expert to double check my appeal letter PLEASE! Thank you
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littlemissforgetful
Posts: 28 Forumite
Hi all, fantastic threads and loads of help.
To be honest, it is all a little overwhelming! Have read several POPLA appeals on here, pretty sure I got recent, successful ones. I've copied and pasted bits that suit and think it should suit my case.
Can I just have your expert eyes glance over it please, just as it is all a bit over my head!!
Much appreciated, thanks.
I am the Registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
This concludes my appeal and I request that it upheld and for POPLA to inform JAS to cancel the PCN.
To be honest, it is all a little overwhelming! Have read several POPLA appeals on here, pretty sure I got recent, successful ones. I've copied and pasted bits that suit and think it should suit my case.
Can I just have your expert eyes glance over it please, just as it is all a bit over my head!!
Much appreciated, thanks.
I am the Registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.
- The Charge is not a genuine pre-estimate of loss
The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.
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.
JAS when rejecting my appeal stated that the cost had been estimated on the cost of the staff issuing the parking charge notice (e.g. salary, equipment, stationary, insurance, etc.) 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.
In the rejection JAS also state potential losses to the retailer due to the parking contravention (if appropriate). An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions. This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.
The charge that was imposed is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £94 can be reduced to £56.40 by early payment the charge is unreasonable to begin with.
- Lack of signage - no contract with driver
The JAS appeal refusal states that the claim in question is based in contract law.
As the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of JAS and not expecting to read a contract when they park. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.
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, rather than simply the nominal amount presumably due in a machine on site.
The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.' - Lack of standing/authority from landowner
J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question. Therefore JAS have 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 JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS 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 JAS are entitled to pursue these charges in their own right.
I require JAS 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.
I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges. It was stated that: "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be." The ruling of the Court was that "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services." In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated, losses, as set out above.
- No attempt to mitigate loss
JAS state that the driver was “seen by our parking attendant leaving the car park. The parking attendant took the first picture at xx.xx”. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.
- 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. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term." - Unreasonable
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.”
- Unlawful Penalty Charge
Since there was no demonstrable loss/damage and 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. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to that the Police and Council Wardens issue.
This concludes my appeal and I request that it upheld and for POPLA to inform JAS to cancel the PCN.
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Comments
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"In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question. Therefore JAS have no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right."
The second sentence is not right. Because I don't show you something it does not mean it is not there, it just means I haven't shown it to you.
Why are you mentioning the HMRC case? Do you understand what went on there and at the appeal? Also the current Beavis case (under appeal) seemed to take a different view.
Good point about JAS claiming retailer loss. Make a little bit more of this saying that they have included retailer losses in their claim but have not shown any authority to act on behalf of retailer to claim their client's money and these costs are clearly included in the estimate of loss thereby inflating it.0 -
The VCS/HMRC case was about parking permits, was appealed in favour of VCS, so on all fronts, not one to include in a POPLA appeal about a free car park.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Thanks, think the problem is that I don't really know what I'm talking about!! What you've both said makes sense and I will amend accordingly. Thanks so much x0
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To be fair for someone who doesn't know what you are talking about, and who hasn't asked lots of questions first, you have made a pretty good stab at the appeal. We give pointers, but it is so much easier with an appeal that has at least had some thought in it, which this one is. Wish all newbies got this far with their first post!
A few tweaks and you will be there.Newbie thread: go to the top of this page and find these words: Main site > MoneySavingExpert.com Forums > Household & Travel > Motoring > Parking Tickets, Fines & Parking. Click on words Parking Tickets, Fines & Parking. Newbie thread is the first post. Blue New Thread button is just above it to left.0 -
To be fair for someone who doesn't know what you are talking about, and who hasn't asked lots of questions first, you have made a pretty good stab at the appeal. We give printers, but it is so much easier with a a peela that has at least had some thought in it, which this one is. Wish all newbies got this far with their first post!
A few tweaks and you will be there.
Thank you, I'm blushing with a little pride hahaha. I have spent a LONG time trawling threads and trying to get my head around it all!! Big credit to those of you that spend your time giving advice and help to us all - good people! I will let you know how I get on, hopefully this will be the end of it, fingers crossed x0 -
Big tip. When you are making your appeal, try to understand what you are writing. And don't be shy about asking on here exactly why you are including something.
There is no shame in not understanding something and asking for an explanation.
But I agree that you have done well to put together an appeal, albeit from other stock ones.
Lastly, your appeal point headings, Try numbering them and putting them in bold.
egLack of standing/authority from landowner
J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver...................0 -
Yeah the headings are numbered in my word document but it didn't copy in for some reason.
I know, you're right, I agree but I have done my best! Well hopefully it will be ok anyway.0 -
It will work!
I only skim-read but you can add a point that JAS have shown no evidence that all occupants of the car left the site so you put them to strict proof in the forum of photographs {they won't have them!}.
And you can lose these points entirely (all wording beneath them) which add nothing:
Unreasonable
Unlawful Penalty Charge
Also you can add to this point if you like, as 'not mitigating loss' is a strong contract law point and you can go to town on it if you like (a certain PPC if reading this thread will no doubt recognise this POPLA argument!):
No attempt to mitigate loss
JAS has failed to act reasonably and to mitigate loss, instead they are profiting from their own inaction. The ticketing employee observes drivers parking and leaving but chooses to issue PCNs in the first instance, rather than point out the easily overlooked signs and terms. JAS state that the driver was “seen by our parking attendant leaving the car park. The parking attendant took the first picture at xx.xx”. Apart from this being denied by me (no evidence shown by JAS and neither do the signs show a defined site boundary) why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.
The charge is not a 'necessary cost' at all; it is wholly unreasonable because:
(a) - JAS could and should have taken reasonable steps to avoid this amount of 'loss'
(b) - it would have been reasonable for JAS to have taken other steps instead
(c) - the loss would have been reduced to zero, had they taken those steps.
To explain these points:
(a) JAS could and should have taken reasonable steps to avoid this amount of 'loss'.
Following an alleged breach of contract, an Operator has a duty to mitigate any loss. This duty in common law, requires reasonable steps to be taken to limit the losses that are incurred and to avoid incurring unnecessary expenditure seeking to remedy the breach. An Operator cannot simply 'sit on its hands' watching small losses accumulate with the intention of recovering them in full from the public using the most expensive, time consuming and unnecessary route to remedy the breach. Nor can an Operator continue to allow small losses to accumulate which are, even in part, caused by a failure of their own signage. It is imperative that a motorist is alerted to any obligation to remain completely within a defined site and this was not the case here. An Operator should not be 'compensated' by a motorist for a loss that is not really caused by the breach itself, but is in fact caused by the Operator's own failure to act in a reasonable way before deciding to issue a PCN.
(b) it would have been reasonable for JAS to have taken other steps instead.
As there is an attendant on site, observing drivers arrive and walk away if they have not seen any signs, it would not be unreasonable for that employee to take steps to alert the occupants of cars to the t&cs that they have missed, so that one occupant could go straight into the shop on site and the other get cash out or whatever errand they had intend to do together first. Nothing has been done by JAS to avoid the all too regular occurrence of PCNs being issued, with the same excuse of a 'contravention' being trotted out every time by JAS with alarming regularity. It would seem entirely reasonable to expect that the attendant who watches people leave, day in day out - then takes photos as soon as the coast is clear - must be nearby. So, it would not be prohibitively expensive, impractical nor difficult for that attendant - who is already actively engaged in observing drivers/cars - to point out the t&cs each time he sees occupants leave the (undefined) site on foot. It is negligent and disingenuous not to attempt to mitigate any loss.
This was found as fact in VCS v Ibbotson 1SE09849 in May 2012, where Judge McIlwaine reminded the legal representative of the claimant's duty to mitigate loss and said 'but this is before the notice is issued. He {the attendant observing} could have said,"Mr, whatever your name is, I am out here to enforce the parking. I don't want to ruin your day... Can I point out that...under the contract you have entered...I have to {issue a} charge'.
Transcript: http://forums.pepipoo.com/index.php?act=attach&type=post&id=16231)
Another step would be for JAS to improve the signs rather than 'sit on their hands' and let these so-called losses accumulate, time and again, pursuing every one as a disproportionate Parking Charge of nearly £100! As JAS seem to have a problem with people leaving all their Staples car parks (proved by hundreds of cases in the public domain all for the same contravention), it would be perfectly reasonable to have added signs at all exits to warn people before they leave on foot. I contend that these car parks are a cash-cow for JAS, who act in the full knowledge that people have no idea they cannot get cash out first (or whatever they need to do briefly before shopping). This is the reason why the signs have not changed and none have been added as warnings where people leave on foot every day. I contend they have failed to take sufficient steps to address the issue.
(c) - the loss would have been reduced to zero, had they taken those steps.
If JAS had instructed their attendant to be proactive in his observational role and advise drivers rather than watch them walk away, oblivious to restrictions, then the 'loss' would have been immediately avoided. Ditto, if there were ample, simply-worded signs at exit footways clearly warning about this hidden restriction and showing a site boundary map for clarity. No PCN need ever have been issued and no photos taken, no-one's time would have been wasted and the occupants of all cars parking there would be fully informed to remain onsite and what the boundary is of the car park. The Operator's Managers would not have had to spend a typical BPA-coached '3 hours' of their precious time at £20+ per hour on this appeal - if indeed they bother - and everyone would have been happy.
So I have shown that there were very simple, reasonable steps that JAS could take but actively choose instead, to try to pursue £94 to 'remedy' each imaginary breach. This failure to mitigate loss is a failure in law and so it renders the inflated £94 sum to be unrecoverable. I put JAS to strict proof to the contrary to disprove (a), (b) and (c) above and to explain why they allow losses to accumulate, all pursued in the same unreasonable and expensive manner, from motorists who could easily be approached personally by an attendant or informed by much clearer warning signs.
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