UKPC - Crawley Leisure Centre parking outside lines

MoneyTwister

Hi all,

My wife received a notice from UKPC for parking outside the lines in the free car park for this leisure centre.

The car was parked on the end space next to the wall where there was no space for another car, so no parking facility was lost due to the crossing of the line. The reason (irrelevant I know ...) was that the cars adjacent had gone over their lines so the final space was too tight to park in between the lines.

Appeal lodged online with UKPC by my wife but rejected today on the grounds that there are signs that you can not park outside the lines.

The letter included a POPLA number which we can use.

So in order to prepare the POPLA appeal, I would like the experts on here to ensure that I provide the correct details here without going overboard on copied material that is not relevant to the appeal.

The main reason for the appeal I understand from reading the threads is the money loss part, i.e. it is a free car park so the charge is not in proportion of the loss.

Is this sufficient to state:

1. The Charge not a genuine pre-estimate of loss

The demand for a payment of £100 (reduced to £60 with prompt payment) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.
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 by a driver who was fully authorised to be parked at that site.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event where no revenue was lost nor any parking facilities impeded.

---

Or should I go for the short version as per Newbies instruction of:
>>
I refer to the above notice which I challenge, not as driver but as keeper of the car, on the following grounds:

a). The sum sought does not represent a genuine pre-estimate of any loss and yet it is intended as a deterrent, so the charge is a penalty.
b). The signage on site is deficient, the wording unclear and it fails to comply with the Code of Practice.
c). In the absence of any evidence it is my case that you lack any or sufficient proprietary interest in the land.
d). Your notice was deficient and fails to comply with Schedule 4 of the Protection of Freedoms Act 2012.

>>

This however does not mention the fact that the car park is free.

Advice would be appreciated.

ezerscrooge

You need the long one with everything in it, and I mean everything. The short appeal is just the 'soft appeal' to the operator to get you PoPLA code.

Did you wait for the notice to Keeper, or have you gone straight in after getting the windscreeen ticket? If you've not waited for the NtK then remove the Non-Compliant NtK part from the appeal template.

UKPC are easily beatable. Do post your draft appeal (redacted) for comment before you send it.

MoneyTwister

No, my wife put in the appeal online straight away before I had a chance to read up on this so there was no notice to keeper, i.e. she identified herself as the driver by responding.

I am the registered keeper of the car though.

I will get another draft on the forum shortly, thanks for your help so far.

ezerscrooge

Not waiting for the NtK just loses one appeal point. I reckon the No GPEOL will be the winner, but the more points the better.

Your appeal will be 2 or 3 pages long

MoneyTwister

Ok, amended to the following. Is it important to state that by crossing over a line next to a wall that there is no possible loss? Also, do I need to provide exact measurement that in the space between the last line and the wall there is insufficient space to park a car at all?

>>

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

1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the final parking space is adjacent to a wall with insufficient space for any other car to park and there was no loss of potential income in a free car park.

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.

2) Lack of signage - no contract with driver
I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKPC to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. 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 in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

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

I require UKPC 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.



4) 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 to 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 unlit 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 by the alleged parking infringement, no loss of space had occurred. I put this Operator to strict proof to justify that their charge is reasonable.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

You can't appeal yourself, the driver has to as she's pushed you out of the equation by implying/admitting she was the driver. You are no longer capable of being held liable so the appeal can only be done by the person who got that POPLA code (obvious when you think about it).

That draft has two different PPCs in it! UKPC and UKCPS feature so tidy up the details.

It also talks about the 'unlit' signs not being readable 'in the dark' (forgive me if this was 'in the dark' but every flippin' week we get people, astonishingly, copying that and not amending/removing some words re a daylight ticket!). If it wasn't a ticket in the dark don't talk about unlit signs and rules about reflective signs. Read another POPLA example to find other things to say about the signs.

Is it important to state that by crossing over a line next to a wall that there is no possible loss?

Yes she could add that.

Also, do I need to provide exact measurement that in the space between the last line and the wall there is insufficient space to park a car at all?

No.

MoneyTwister

Thanks for that advice. Good point that it has to be in my wife's name.

It is a parking garage, so dark-is at all times but will read up on the other signage threads. The previous poster mentioned adding all the points in there, hence me keeping it in.

Will search for more examples on the site and update the text shortly.

Thanks again all for your input, much appreciated as I do not want it to be thrown out by a rookie mistake by me.

MoneyTwister

Right, I have changed the text after more research but am struggling to find a signage thread regarding UKPC, the ones I saw and to which the template refers to, were Excel ones.

If someone can point me to the direction of a UKPC signage thread that would be great.

So, I have now the following:

>>

[FONT=&quot]Dear POPLA,
I am the driver & this is my appeal: [/FONT][FONT=&quot]

1) The Charge is not a genuine pre-estimate of loss

[/FONT][FONT=&quot]The demand for a payment of £100 (£60 minimum at prompt payment )is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is a free car park. There is therefore no loss flowing from this parking event because there can be no loss of potential income when a car is parked over the line at an end space adjacent to a wall where no other car could park.[/FONT]
[FONT=&quot]
I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. UKPC parking charge notice refers to 'breach of terms and conditions' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

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 by a driver who was fully authorised to be parked at that site.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

Nor is the charge 'commercially justified'. If UKPC 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 that:

[/FONT][FONT=&quot]''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.''[/FONT][FONT=&quot]

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.[/FONT][FONT=&quot]

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

I require UKPC 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


3) 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.


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 signs next to door ways used by pedestrians exiting the car park 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 by the alleged parking infringement, no loss of space had occurred. I put this Operator to strict proof to justify that their charge is reasonable.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.[/FONT]

Coupon-mad

Well firstly this one seems to end halfway through a sentence so I have suggested a completed version of your point #2:

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

I require UKPC 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 pursue charges in their own right.

The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend UKPC only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'


As for the signage point, either search the forum for 'UKPC' as a search word, or just adapt any other one just saying how dark/dingy it is inside the parking garage and that no signs were seen which communicated any risk of a parking charge for parking in a corner as in this case. Search the forum for the words 'Denning red hand' to find the quotes from Lord Denning from a court case which is applicable here. As law graduates make the decisions, case law is always worth adducing.

P.S. Just found one where another person has quoted the 'red hand rule' plus it's a pretty good signage argument you could adapt:

https://forums.moneysavingexpert.com/discussion/comment/66654881#Comment_66654881


HTH

MoneyTwister

[FONT=&quot]Changed it to this:[/FONT]

[FONT=&quot][/FONT]
[FONT=&quot]>>
[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Dear POPLA,
I am the driver & this is my appeal: [/FONT][FONT=&quot]

1) The Charge is not a genuine pre-estimate of loss

The demand for a payment of £100 (£60 minimum at prompt payment )is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is a free car park. There is therefore no loss flowing from this parking event because there can be no loss of potential income when a car is parked over a line in a car park that is not full.[/FONT]
[FONT=&quot]
I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. UKPC parking charge notice refers to 'breach of terms and conditions' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

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 by a driver who was fully authorised to be parked at that site at no cost.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

Nor is the charge 'commercially justified'. If UKPC 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 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.''

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

[/FONT][FONT=&quot]2) Lack of standing/authority from landowner
[/FONT][FONT=&quot]UKPC 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 UKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC 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 UKPC are entitled to pursue these charges in their own right.

I require UKPC 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 pursue charges in their own right. [/FONT]

[FONT=&quot]The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend UKPC only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'[/FONT]
[FONT=&quot]
3) 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. [/FONT][FONT=&quot]


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 signs next to door ways used by pedestrians exiting the car park 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 by the alleged parking infringement, no loss had occurred. I put this Operator to strict proof to justify that their charge is reasonable.

[/FONT]
4). Unclear and non-compliant signage, forming no contract with drivers.

As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The car park entrance is on a road crossing where traffic is coming from three different sides, entering and exiting the car park. The driver’s attention is therefore focused on the traffic, not to a parking sign amongst other signs on the side of the entrance where you are least likely to look due to the position of the other moving vehicles around you.


This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “ drawn to his attention in the most explicit way. 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.”

[FONT=&quot]Due to the above points, I therefore respectfully request that my appeal is upheld and the charge is dismissed.[/FONT]

MoneyTwister

I have a photo with the entrance of the garage, including the road situation and the signs which would not be seen. can not post this image for you to see though.

Is it worthwhile attaching it to the appeal itself?