Parking outside designated bays

natantnomad

Hi all,

I received a parking fine while taking my son to the West Middlesex Hospital (Isleworth, London) last month, and would like your advice on appealing to POPLA after failing an initial appeal.

Unfortunately I discovered this forum after making the initial appeal with UKPC so made a few of the 'naive' mistakes listed in the newbie thread - mostly making "I felt" statements which may imply I was the driver. I also failed to retain my own copy of the appeal, which is even more daft. The standard template looks perfect for making my appeal, what I need further help with though is:

* Should I exclude "1. Formal Challenge" section of the POPLA template? I think it still has validity, but would appreciate reassurance.

* I did pay the parking fee, but as the parking bay was otherwise full, I did park outside the designated bays - ensuring that I did not impede any of the current/future occupants from entering/exiting the park or any bays. I intend to send this receipt as proof, justifying that they didn't incur any loss but am unsure how/where to add the paragraph to the template.

* The reason I chose to park was to not miss a scheduled appointment for my - then - 6 week old son, and the bay failed to provide adequate spaces. It was also a gated parking area, so at the time didn't feel I could leave without paying, despite not using the parking bays. Is such circumstantial evidence worth adding as well, or shall I leave the appeal largely as is?

Many thanks in advance for your advice. It's great to see such a strong community supporting others.

Some Date references:

* Fine received (on front window of car) - 04/09/14
* Online appeal made - 04/09/14 (email states response within 35 days)
* Rejection letter arrived - 13/10/14 - dated 09/10/14

bod1467

Did the letter have a POPLA code on it? If yes then you need to compose your appeal - see the NEWBIES guide.

Your appeal will be on points of law - what happened (mitigation) is completely irrelevant.

ampersand

'I received a parking fine' - no, you didn't. You received a fake invoice.
[Please remove that offensive f--- word from an otherwise lucid post.]

Please, also, re-read the Newbies Threads.

Mitigation is of no account, but you should be complaining LOUDLY to hospital management before anything else.

Thank goodness you've found mse now. Read Parking Prankster's blog on hospital parking and all else.
https://www.google.co.uk/search?q=parking-prankster.hospital+parking&rlz=1C1GGIT_enGB308GB353&oq=parking-prankster.hospital+parking&aqs=chrome..69i57.3842j0j4&sourceid=chrome&es_sm=0&ie=UTF-8

Let us critique your popla draft before you send it, IF HOSPITAL COMPLAINT FALLS ON DEAF EARS. Just go up the food chain. Parking virtuoso coupon-mad has lots of good rant about this.

Daily Mail may not be your choice of journal[nor mine] but there's this:
http://www.dailymail.co.uk/news/article-2732222/Victory-parking-cowboys-Hospitals-ordered-ban-bullies-seriously-ill-free-parking.html

Hope your son is doing well now.

natantnomad

Thanks bod,

Yes there was a POPLA code along with the rejection letter, so I'll just use the template with the appropriate information, and send that in along with the parking receipt.

Coupon-mad

Should I exclude "1. Formal Challenge" section of the POPLA template?

Which POPLA template are you looking at? What 'formal challenge'? The first post of the newbies thread is NOT a POPLA appeal if that's where you are looking (that is clearly the 'first appeal to the PPC' that you should have used!). You need to read post #3 of the sticky thread and click on 'How to win at POPLA'.

ampersand

...and don't 'send that in along with the parking receipt.' - copies only of anything like this.

natantnomad

Thanks all,

Correct again, I was looking at the wrong templates. As this is a POPLA submission, I understand now I have to generate my own version based on previous posts.

I've since been down again to the car park to photograph the signs, and observer the exact wording to help my case. Here is my proposed POPLA submission:

Dear POPLA,

I am the registered keeper & this is my appeal:

1) Insufficient signage
Upon returning to the car park, the driver was made aware of a secondary sign that outlines further conditions to implied by UKPC. Information on this sign is not appropriately communicated to drivers before entering the enclosed area. This smaller sign does not display information at an easily readable size, and is placed too high to be regarded as prominently displayed. The sign that greets drivers before entering the enclosed area makes no mention of any further charges either directly, or in regards to the other sign. All instructions for the primary sign were satisfactorily met by the driver.

2) The Charge is not a genuine pre-estimate of loss
The minor sign states the charge is for 'failure to comply with the following' so this Operator must prove the charge to be a genuin pre-estimate of loss. Because the driver did pay the parking charges, and did not in anyway obstruct or impede other patrons. At the time of the incident, the car park was in fact over full, and UKPC failed to indicate any way of exiting the are without being charged, despite being unable to supply ample space.

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.

3) Lack of standing/authority from landowner
UKCPS 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 UKCPS are entitled to pursue these charges in their own right.

I require UKCPS 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.

Failure to reference or mention further conditions on the primary sign, and not prominently displaying the secondary sign 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 the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described and with their utter lie about the keeper's right to appeal 'only if the car is stolen' in mind, 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 the charge is dismissed.

Coupon-mad

That's a better draft! You've mixed 'UKCPS' in there by mistake so put that right as it's a different firm!

And there are typos such as:

The minor sign states the charge is for 'failure to comply with the following' so this Operator must prove the charge to be a genuine pre-estimate of loss. [STRIKE]Because[STRIKE] The driver did pay the parking charges, and did not in any way obstruct or impede other patrons. At the time of the incident, the car park was in fact over full, and UKPC failed to indicate any way of exiting the gated area without being charged, despite being unable to supply ample space.

Finally I would add the new paragraph I am suggesting now in appeals:


Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
These Regulations apply to all UK consumer contracts from June 2014. UKPC charges a fee to park so this is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

This contract certainly purports to offer the daily 'rental' of/use of a parking space:
http://www.thefreedictionary.com/rent
RENT - 1. a. Payment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another. b. A similar payment made for the use of a facility, equipment, or service provided by another.

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed at all, as the driver had paid the tariff, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (the only payment expressly agreed was a tariff and that was paid in full - no express agreement was made to pay any more).

Information breaches of these Regulations:
UKPC have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract (13)
—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and (b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.

Confirmation of distance contracts (16)
(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.

Cancellation period extended for breach of information requirement (31)
(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time). The burden falls upon UKPC, under paragraph 17 of the Act I have quoted above, to prove this to the contrary. Consequently, should POPLA decide in favour of UKPC then I hereby notify UKPC that I give Notice of Cancellation of this flawed 'contract' as is my right under the Regulations; a right extended to me for 12 months, due to the lack of information compliance.

mubsy81

Hi Guys,

I just recieved a "Legal Notice" for breach of contract to enter & park at Bolton Royal Hospita issued by BOLTON NHS Foundation Trust.

it says the driver was parked in a 20 mins A&E spot for longer than 20 mins and parking extended into the emergency bays in the ambulance only area (not parked within the bays).

Not sure if it is a POPLA notice, but it has a serial number and says LEGAL NOTICE in bold!

I want to appeal this notice.

All help welcome.