POPLA appeal stage - Premier Park PCN

inwortle

Hi,
I received a PCN in July and have been reading through the forums here since. Made my soft appeal, which was rejected as expected. I'm now just looking through the forums and planning my POPLA appeal. It's all a little intimidating and confusing, but having looked through the templates, I think I know where to go from here.

I'm going to adapt the templates and post my proposed appeal on here for your perusal and advice. Before I do that, I'm just a little confused about how to word my first point about genuine pre-estimate of loss. I can't quite work out whether they are claiming a contractual agreement or a breach of contract.

The signage reads: This land is private property. Entry & parking is only allowed under the following contractual terms and conditions indicated below. No Pay and display parking. Valid permit holder parking only. Permit must be fully on display in the windscreen area. No exceptions. If you enter or park on this land contravening the above conditions, you are agreeing to pay: Parking Charge Notice (PCN): £100.00.

All of their correspondence since has referred to a 'breach of the terms and conditions'. So I'm guessing that I should take that line and assert therefore that they can only pursue liquidated damage directly flowing from the parking event. I just wanted to be certain that I understood correctly!

Hope that makes sense. Thanks!

Dee140157

Use one of the appeals that covers both angles and you will be fine. You have got the idea though.

Coupon-mad

I can't quite work out whether they are claiming a contractual agreement or a breach of contract.

It's breach which makes it nice and easy to argue 'no GPEOL.' Just because a PPC put the word 'contractual' on a sign, does not make it so!

Ryan_Bryan

I won my appeal against Premier Park with no GPEOL but be warned. Premier seem to have a track record of not sending evidence to their victim. If you do not receive anything be prepared to kick up a fuss to POPLA, the BPA and DVLA. Unfortunately my Mum was seriously ill when my appeal was approaching and I let it go.

Still stuffed the scammers though.

inwortle

So, the following is my draft appeal to POPLA.

I've pieced it together from a few templates from the forums, so I hope it makes sense!

Also, wasn't sure if I needed more points - I have omitted anything about inadequate signage (and therefore unfair/unreasonable terms) because they have a picture of the car parked right next to a sign. Wasn't sure I'd get away with that!

I also wasn't sure if it was worth putting in the CofE ownership stuff.

Anyway, your thoughts would be greatly appreciated!

Dear POPLA Assessor,

As the registered keeper of vehicle registration XXXXXXX, I am appealing against parking charge number XXXXXX using POPLA appeal code XXXXXXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points be taken into consideration.

1. No genuine pre-estimate of loss
2. Lack of standing/authority from landowner
3. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012.

1. No genuine pre-estimate of loss
The amount of £100 demanded by Premier Park is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Given that parking charges cannot include business costs, which would occur whether or not the alleged contravention took place, and the flat rate for a permit in the car park in question is £5, the actual charge of £100 is excessive in the extreme.
In its reply to my initial letter requesting a breakdown of how supposed damages of £100 have arisen, Premier Park has provided no breakdown of how the sum of £100 has been arrived at based on the alleged parking contravention despite my requesting them to do so. As Premier Park cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

Nor is the charge 'commercially justified'. If Premier Park cite 'ParkingEye v Beavis & Wardley' it's irrelevant since 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 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by Premier Park - that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''
Given that Premier Park charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty. This therefore renders this charge unenforceable.
2. Lack of standing/authority from landowner.

Premier Park 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 Premier Park to strict proof of the contract terms with the actual landowner (not a lessee or agent). Premier Park 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 Premier Park are entitled to pursue these charges in their own right in the courts.

I require Premier Park to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. As the alleged parking infringement took place in church grounds, was this contract with the actual landowner? Church grounds are “generally owned by the rector or vicar as ‘Church Property’.” (churchofengland.org) A contract signed with anyone else may not be legally binding.
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.

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 three grounds:
(a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at 8:24 am on the day in question.
(b) The Notice to Keeper does not give any details about discounted payment, which, under the BPA code of practice, should be at least 40% of the full charge.
(c) The Notice to Keeper does not identify the 'creditor'. The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made.

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'. Premier Park has therefore not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.

I therefore respectfully request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.

Yours faithfully,

ElleKay33

Hi Inwortle

I'm also at the POPLA appeal stage, but with Excel Parking. I am totally lost on this and your template letter has given me some hope! I hope you don't mind me 'borrowing' it?

I will wait to see if anyone else replies to you with regards to any more helpful information.

Thanks!
Elle

Coupon-mad

ElleKay33 wrote: »

Hi Inwortle

I'm also at the POPLA appeal stage, but with Excel Parking. I am totally lost on this and your template letter has given me some hope! I hope you don't mind me 'borrowing' it?

I will wait to see if anyone else replies to you with regards to any more helpful information.

Thanks!
Elle

Why would you use that version when there is an Excel version of a POPLA appeal in the Newbies sticky thread (near the top of the parking forum) in the hyperlink in post #3 of the sticky, cunningly called 'How to win at POPLA'.

inwortle

Anyone got any comments on my appeal? Or does it all seem fine?

Coupon-mad

You appear to have made the rookie mistake of thinking because they have signs up then you've deleted the perfectly sound POPLA appeal point (GOOD FOR EVERY SINGLE CASE!) about unclear signage.

Guys_Dad

inwortle wrote: »

Anyone got any comments on my appeal? Or does it all seem fine?

My advice is follow Coupon Mad's advice above. Look at her post Count.

inwortle

Brilliant! Thanks for that. With that in mind, how does this look?

Dear POPLA Assessor,

As the registered keeper of vehicle registration XXXXXXX, I am appealing against parking charge number XXXXXX using POPLA appeal code XXXXXXXXXX. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points be taken into consideration.

1. No genuine pre-estimate of loss
2. Lack of standing/authority from landowner
3. Unclear and Non-compliant Signage forming no contract with driver
4. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012.
5) Unreasonable/Unfair Terms

1. No genuine pre-estimate of loss
The amount of £100 demanded by Premier Park is not a genuine pre-estimate of loss and therefore is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. Given that parking charges cannot include business costs, which would occur whether or not the alleged contravention took place, and the flat rate for a permit in the car park in question is £5, the actual charge of £100 is excessive in the extreme.
In its reply to my initial letter requesting a breakdown of how supposed damages of £100 have arisen, Premier Park has provided no breakdown of how the sum of £100 has been arrived at based on the alleged parking contravention despite my requesting them to do so. As Premier Park cannot show this is a genuine pre-estimate of loss, they have breached the BPA Code of Practice, which states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.

Nor is the charge 'commercially justified'. If Premier Park cite 'ParkingEye v Beavis & Wardley' it's irrelevant since 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 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by Premier Park - that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''
Given that Premier Park charges the same lump sum for alleged contraventions at any time of day on any day of the week, regardless of whether the contravention was serious or trifling, it is clear that no regard has been paid to establishing that this charge is a genuine pre-estimate of loss, and instead the charge is punitive and is being enforced as a penalty. This therefore renders this charge unenforceable.
2. Lack of standing/authority from landowner.

Premier Park 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 Premier Park to strict proof of the contract terms with the actual landowner (not a lessee or agent). Premier Park 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 Premier Park are entitled to pursue these charges in their own right in the courts.

I require Premier Park to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. As the alleged parking infringement took place in church grounds, was this contract with the actual landowner? Church grounds are “generally owned by the rector or vicar as ‘Church Property’.” (churchofengland.org) A contract signed with anyone else may not be legally binding.
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.

3. Unclear and Non-compliant Signage forming no contract with driver
This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not Premier Park’s customers and are not parties of equal bargaining power, nor are they even aware that any 'contract' is possible. Therefore all terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. A lack of signs at the entrance to a car park, and unclear wording, creates no contract.

I contend that the signs in that car park (wording, position, and clarity) do not comply and failed to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.

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). Lord Denning continued: '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.'
Premier Park 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. 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, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Premier Park has no signage with full terms, which could be readable at eye level, for a driver in moving traffic on arrival.
4. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012.
This is on three grounds:
(a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at 8:24 am on the day in question.
(b) The Notice to Keeper does not give any details about discounted payment, which, under the BPA code of practice, should be at least 40% of the full charge.
(c) The Notice to Keeper does not identify the 'creditor'. The Operator is required to specifically "identify" the creditor, which requires words to the effect of "The creditor is ..... ". The keeper is entitled to know the party with whom any purported contract was made.

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'. Premier Park has therefore not fulfilled all the requirements necessary under POFA to allow it to attempt recovery of any charge from the keeper.
5) Unreasonable/Unfair Terms
I would assert that the charge being claimed by APCOA 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 sparse and unclear signage 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 Premier Park that the charge is dismissed.

Yours faithfully,