JAS reply to POPLA- is this normal?

littlemissforgetful

Ok, I have used a rebuttal from yesterday. It wasn't my PPC and obv slightly diff circumstances so I have changed it to JAS and deleted parts that didn't apply. Can I have advice as to whether it is clear enough or that I should add more.
Thank you again everyone for your help,




Dear Sir/Madam,

This is my response to JAS’ statement regarding my appeal.
Genuine pre-estimate of loss statement

My main point revolves around the fact that the charge is not a genuine pre-estimate of loss:
The charge is not a genuine pre-estimate of loss incurred by JAS and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the Parking Charge Notice to be a penalty because JAS have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).I am not minded to accept that the charge in this case is commercially justified.


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 Genuine pre-estimate of lossdamages must be compensatory in nature rather than punitive. As for the actual "calculation": Nearly all of it consists of (implausible) expenses arising, supposedly, from handling this PoPLAappeal. But (i) the supposed loss was originally claimed when the charge notice was first issued, and at that point there was no appeal; the alleged loss needs to be justified as it was then, it cannot be retro-fitted with convenient costs which hadn't been incurred at the time of the original demand and, at that time, might never have been incurred; and (ii) it is in any case the position of both the government and BPA Ltd. that PoPLA should be a free service to the motorist, therefore the motorist cannot be charged for the costs of PoPLA appeals. BPA Ltd. has recently instructed operators to cease this practise. The alleged loss also includes staff and admin costs which are day-to-day operational costs which the operator would have incurred regardless of the parking "event" and which the operator doubtless offsets against tax. There is no Genuine Pre-estimated of Loss full breakdown to how they have come up with £94, as business costs are not losses and therefore should not be passed down to the motorist.


To rebut their sentence: ‘With regards to justifying the amount of the Parking Charge Notice the considerable costs of dealing with an individual appeal demonstrate that there is a large cost (and therefore loss) to us as a company and we are therefore justified in the amount of Parking Charge Notice to cover these not inconsiderable costs. ‘



This shows an unreasonable approach to arriving at a 'pre-estimate of loss' as it is far too wide a pool of information to create a single fixed charge.

Many of these 'costs' are the tax-deductible costs of running any business. POPLA Assessor Chris Adamson has stated in June 2014 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”.
JAS 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).

Signage

No image had been submitted for a like for like image as to the time the PCN was issued. The print was too small on the signs to allow for a contract to be made between a driver and JAS. The signage in my opinion is not clear.

Contract

There seems to be no unredacted contract, which could include information about 'money changing hands' in the contract, hiding information that could be relevant to the costs calculation fails to meet the strict proof of contract terms needed.

Summary of evidence

•The signage was inadequate as the driver was not aware of the full nature of the contract being offered.

•Having a large quantity of something is no proof of its quality.

•At first appearance it appears as an official penalty notice, designed to scare the individual into paying an unrealistic charge. After re-reading it, it does appear to be an invoice to me.

•No actual proof of accuracy in this case.

•Full contract has not been supplied for inspection.

•A parking charge cannot be used to manufacture a loss where none existed, and yet this is exactly what JAS has attempted. It is circular, it is specious, and it most certainly isn't genuine.

•I think anyone who was asked would conclude that the charge is not a true reflection of any loss incurred by JAS.

issued.
Yours,

EnigmaPart1

Sorry but thats not going to work as such

You need to break down his evidence bit by bit, so the charges like "IT system up keep to make sure all the information comes up correct and secure for each case cost us £33.19" need attacking

littlemissforgetful

Oh dear :-(
What are my chances of success if I don't send a rebuttal??
Think I might be getting a little out of my depth!

bazster

DVLA Fees / Processing Costs for this appeal cost is £13

An enquiry to DVLA costs £2.50. What's the rest for? Evidence required. In any case, many recipients of PCN's will respond directly thus obviating the need for a DVLA enquiry, so the actual cost of a DVLA enquiry cannot form part of a pre-estimate of loss.

Expense of each appeal is for example Stationery includes postage and printing £2.50

Evidence required. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.

Parking Attendants and Appeals Department staff wages and salaries which includes Employers National Insurance and Tax (PCN recording and issuing) for each case 13.81

The staff are employed anyway. Their costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.

Appeals Staff 1 hour (call handling / appeals writing) for each case is £7.00

The staff are employed anyway. Their costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.

Furthermore, we already had appeals staff in the previous item. This is double-counting.

Office Management to handle and maintain up-to-date Data which includes evidence of photos and information of parking charge notice putting together, dealing with appeals via email or writing also dealing with POPLA appeals for each case cost us £24.50

Evidence required. How does it cost £24.50? Further, the staff are employed anyway. Their costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.

Furthermore, how does this differ from what the appeals staff mentioned above are supposedly doing? This would appear to be treble-counting.

IT system up keep to make sure all the information comes up correct and secure for each case cost us £33.19

This would appear to be entirely fictitious and cannot be accepted without detailed evidence. Furthermore, the system (if any) exists anyway. Its costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the system would still exist and costs would still be incurred.

Coupon-mad

littlemissforgetful wrote: »

Oh dear :-(
What are my chances of success if I don't send a rebuttal??
Think I might be getting a little out of my depth!

No you just need to pick out the silliest bits and point out the POPLA it's false/wrong/unbelievable or whatever.

This should help:

https://forums.moneysavingexpert.com/discussion/5081063

Make sure you add in that the IT system cannot need to be reinstalled every time someone gets a PCN!

Just repeat their 'evidence' blow by blow, quoting each silly statement or 'convenient sum' and state it's not correct or beleivable etc., and why. Use Bazster's comments and mix them with some of your draft. Have they shown no contract with the landowner at all, or merely a witness statement, if so, who signed it (landowner or on behalf of the landowner?).

The_Deep

No you just need to pick out the silliest bits and point out the POPLA it's false/wrong/unbelievable or whatever.


How do you decide, usually it is all silly.

Unless there is an initial loss there cannot be a loss, pre-estimated or not, as the result of that non loss. This is pointed out by adjudicators time and time again.

There can be no-loss in almost every case which does not involve overstaying and bilking in a P&D car park. Dropping off outside of a dropping off area in an airport may well cause a revenue loss to an airport, but that is not parking, and there are other factors involved.

If PPCs want to know the address of the RK in order to bully the driver/RK into paying the invoice, they must pay for it, along with all related collection expenses, themselves.

littlemissforgetful

I'm working on rewording the previous rebuttal and use the new advice given....


I'll post it on here when I'm done for your expert read over again if you don't mind.


Thank you everyone x

hoohoo

The evidence is self contradictory. At one point they say;

DVLA Fees / Processing Costs for this appeal cost is £13

Later this changes to

DVLA Fees / Processing Costs - These are fixed costs to us at present at £3.50 per DVLA search via our appointed debt recovery/notice processing company.

They include general running costs of the business:

IT system up keep to make sure all the information comes up correct and secure for each case cost us £33.19

Then later admit this should not be included.

We have reviewed the ‘test case’ conclusions written by the Lead Adjudicator and quote from Mr Greenslade’s determination of what constitutes a genuine pre-estimation of loss:

“Each appeal will always turn of its own facts but both parties should be clear that a genuine pre-estimate of loss need not be a detailed estimate for each particular case. It is not the specific loss caused by the actual breach but may include loss incurred or loss that might reasonably be incurred.
However, it cannot include sums that are really the general business costs of the Operator’s car park services operation.”

hoohoo

Also see this pepipoo thread

http://forums.pepipoo.com/index.php?showtopic=93985&st=0&#entry1010318

The reply from POPLA has been that my appeal is successful and that the charge should be cancelled. The reason: the operator has failed to produce sufficient evidence to show the charge is a genuine pre-estimate of loss. They have included lots of fixed costs, including the IT system of £33. And the adjudicator has said this is not right, as the IT system cannot need to be reinstalled for every case.

littlemissforgetful

Wow thank you everyone so much....


Right here is my rebuttal, I have closely used the wording suggested by bazster as it just seemed to make so much sense, I hope that's ok.


Appreciate any comments :-)




Dear Sir/Madam,

This is my response to JAS’ statement regarding my appeal.

• The copy of the parking ticket in the evidence pack includes a stub not included on the original stuck to the car windscreen. The box for ‘Driver’ is ticked ‘male’. The driver was clearly not male. If the ticket issuer was confused about the driver of the vehicle can he prove that the person he saw was indeed the driver of the above car?
  
• JAS state the time of the first photograph to be 16.12 which is confirmed in the first photo of the evidence pack. The second photo shows a time of 16.22, with the ticket clearly already stuck to the windscreen. How can they then have included a 10 minute ‘grace time’ before the ticket was written? I quote JAS ‘Genuine pre-estimate of loss’ in the evidence pack. ‘We estimate that on average an attendant spends 10 - 15 minutes recording and issuing a Parking Charge Notice’, it obviously was somewhat less than this. Can they prove that the driver had not returned to use the shop within those ten minutes? Especially given that the attendant was confused as to whom the driver was (see point number 1). I attach a receipt to show that Staples was in fact used on this occasion.
  
• Genuine pre-estimate of loss statement
  

My main point revolves around the fact that the charge is not a genuine pre-estimate of loss:
The charge is not a genuine pre-estimate of loss incurred by JAS and is punitive, contravening the Unfair Contract Terms Act 1997.


I will hereby consider the points raised in their statement submitted to PoPLA in the evidence pack.

• DVLA Fees / Processing Costs for this appeal cost is £13
  
  An enquiry to DVLA costs £2.50. I put JAS to provide evidence for the remainder of this cost. In any case, many recipients of PCN's will respond directly thus obviating the need for a DVLA enquiry, so the actual cost of a DVLA enquiry cannot form part of a pre-estimate of loss.
  
• Expense of each appeal is for example Stationery includes postage and printing £2.50
  
  Many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss. I ask JAS to submit evidence for this expense.
  
• Parking Attendants and Appeals Department staff wages and salaries which includes Employers National Insurance and Tax (PCN recording and issuing) for each case 13.81
  
  Costs associated with paying wages are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.
  
• Appeals Staff 1 hour (call handling / appeals writing) for each case is £7.00
  
  Costs associated with paying wages are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.
  
• Office Management to handle and maintain up-to-date Data which includes evidence of photos and information of parking charge notice putting together, dealing with appeals via email or writing also dealing with POPLA appeals for each case cost us £24.50
  
  I ask JAS to present evidence for what exactly these costs are. Staff are employed regardless. Their costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.
  
  Furthermore, how does this differ from what the appeals staff mentioned above are supposedly doing? This would appear to be treble-counting.
  
• IT system up keep to make sure all the information comes up correct and secure for each case cost us £33.19
  
  This would appear to be entirely fictitious and cannot be accepted without detailed evidence. Furthermore, the system (if any) exists anyway. Its costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the system would still exist and costs would still be incurred. I question JAS, do IT systems really need to be reinstalled every time a PCN is issued?
  

Yours,