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G24 POPLA appeal - please check my text
boom
Posts: 50 Forumite
Hello
Very old time member here, not been on the forum for *years* but found myself back here after my dad received a G24 letter recently which relates to an alleged overstay at a free car park.
We are following the excellent advice of this forum to try and beat it...
We did the initial appeal which of course was rejected.
Here is our proposed text for the POPLA appeal, which is based on the other G24 ones that have been used on here before. Most of them are still pending decision so I am slightly nervous!
Any suggestions for changes (or confirmations it's ok) would be gratefully received.
Thanks
I am the registered keeper of this vehicle and I would like to appeal the charge on the following grounds:
a) The Charge is not a genuine pre-estimate of loss
b) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between G24 and the driver.
c) Lack of standing/authority from landowner
d) Unreasonable/Unfair Terms
e) ANPR Accuracy and breach of the BPA Code of Practice 21.3
The detail of each is as follows:
a) The Charge is not a 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. The G24 notice alleges “breach of terms” and, as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that G24 appears to charge the same amount for a 15 minute overstay as they would for a 150 minute overstay, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
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.
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 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.
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.
b) 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 the on site 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 cameras and were not read nor even seen by the occupants of the car.
c) 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 a lessee or agent). G24 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 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 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.
d) 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. 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".
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.”
e) 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 G24 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 G24 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 not directly physically connected 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 communications 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.
Given the above points, I request that POPLA uphold my appeal and dismiss the charge.
Very old time member here, not been on the forum for *years* but found myself back here after my dad received a G24 letter recently which relates to an alleged overstay at a free car park.
We are following the excellent advice of this forum to try and beat it...
We did the initial appeal which of course was rejected.
Here is our proposed text for the POPLA appeal, which is based on the other G24 ones that have been used on here before. Most of them are still pending decision so I am slightly nervous!
Any suggestions for changes (or confirmations it's ok) would be gratefully received.
Thanks
I am the registered keeper of this vehicle and I would like to appeal the charge on the following grounds:
a) The Charge is not a genuine pre-estimate of loss
b) The signage was not compliant with the BPA Code of Practice so there was no valid contract formed between G24 and the driver.
c) Lack of standing/authority from landowner
d) Unreasonable/Unfair Terms
e) ANPR Accuracy and breach of the BPA Code of Practice 21.3
The detail of each is as follows:
a) The Charge is not a 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. The G24 notice alleges “breach of terms” and, as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that G24 appears to charge the same amount for a 15 minute overstay as they would for a 150 minute overstay, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.
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.
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 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.
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.
b) 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 the on site 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 cameras and were not read nor even seen by the occupants of the car.
c) 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 a lessee or agent). G24 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 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 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.
d) 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. 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".
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.”
e) 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 G24 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 G24 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 not directly physically connected 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 communications 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.
Given the above points, I request that POPLA uphold my appeal and dismiss the charge.
0
Comments
-
One of the experts will be along to give this the once over, but I suggest you have an index for your challenge points similar to this layout: -
1 GPEOL
2 Signage not compliant
3 No Standing
4 Unfair charges
5 ANPR inaccuracy
Then have a heading in bold at the beginning of each challenge paragraph.
1 GPEOL
The Charge is not a genuine pre-estimate of loss ... etcetera.
2 Signage not compliant
The signage was not compliant with the BPA Code of Practice ... etceteraI married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Thanks Fruitcake I'll amend my post now to reflect this...0
-
There is another thread about G24 that has already been checked by the experts. You might be better borrowing this one.
https://forums.moneysavingexpert.com/discussion/5076925
eta
I see you already have.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Given the Devere case, should I amend the text in my section c (Lack of standing/authority from landowner) to point out that any contract provided in evidence should be accompanied with the relevant Land Registry records confirming that the "owner" in the contract is indeed the true owner?
Thanks0 -
No because there is no way a PPC will supply a LR record as it would cost them money and they don't have to supply it. You could add that it has to be a contract with the actual landowner but I thought that was possibly made clear in the G24 example POPLA appeal in the newbies thread already.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Appeal succeeded on the basis that G24 failed to supply any details of their contract with the landowner.
I think it would have also won on no GPEOL because they didn't supply any calculation for that either.
Thanks again to everyone for help/guidance in this and other threads.0
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