More JAS nonsense

BlackSpangle

ampersand wrote: »

Vehicle Registration no., not 'licence'?

Noted. Sloppy wording on my part

BlackSpangle

If it's worth anything (and I suspect it isn't), the images of the NtK. I'll need to examine them closely later to see where they depart from PoFA, if the appeal goes to PoPLA. I've redacted any PII and QR codes.

[IMG]hxxp://i57.tinypic.com/ru08if.png[/IMG]

[IMG]hxxp://i60.tinypic.com/345zxh2.png[/IMG]

ampersand

Sorry BS, must dash but also 'I can only assume that your intention is to confuse vehicle keepers to such an extent that they cannot submit appeals compliant with ''requirements'' set by your shifting goal-post company and enforcer identities' .'
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Replace:
[STRIKE]'However, for the avoidance of any doubt whatsoever, I am also placing this appeal with you. '[/STRIKE]
By additionally placing a copy of this Appeal with you, I now expect either you, or JAS PArking Services, to follow proper BPA processes' etc.
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'as per [STRIKE]the text of[/STRIKE] your letter to me[date].
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'[STRIKE]I, as',[/STRIKE] just 'As the registered keeper of the vehicle above, I will not pay your speculative invoice for alleged breach of contract on the following grounds'...then do the usual headings, bold, numbered, underlined.
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'Signage in the XXXX Staples/Curry’s car park is non-compliant[cite applicable bumf/regs].
It is barely visible[any height issues? was it night?/day?, poss. inclusion of 'poorly lit'/'unlit'] and does not sufficiently or correctly inform prospective car park users of the conditions under which parking is offered.
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'a genuine pre-estimate of loss'[underline.embolden]
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'what so-called loss the landowner may have suffered for this alleged breach of contract'
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'If, as has been attempted in the past....' then paste in that Adamson para.
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'require a [STRIKE]proper[/STRIKE] full, unredacted, contemporaneous copy '
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' precisely what [STRIKE]JAS’s [/STRIKE]authority JAS are legitimately claiming.
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'[STRIKE]It is to be hoped that we will not need to go through that pointless ritual again.[/STRIKE] You would be wise to avoid further official scrutiny by not repeating this flawed response.

From the form of words used, PDC are claiming they act as the agents of JAS.
JAS in turn claim to act as the agents of Staples/Curry's, tenants of this land which is owned by someone else. To establish standing to issue any parking event claim, you must show a clear chain of authority demonstrated via a full, unredacted, contemporaneous contract, which you must produce.'
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'[STRIKE]You have made[/STRIKE] No attempt was made...'
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'I state again: the only responses which are acceptable to me are either a cancellation of this invoice, or a rejection of my appeal with a proper PoPLA code.'
Suggest:
'You have a choice. You must either cancel your unenforceable speculative invoice, or supply a valid POPLA code with any rejection letter.
Yours faithfully,
BS'
#
Others will be along - I keep saying 'must dash'. Will do this time:-)

BlackSpangle

I also changed 'unfair' (in GPEOL) to 'punitive and unreasonable'. Seems general advice is to avoid appeals to fairness, and focus on the fact that's its a penalty and not a true claim for damages.

Also should have said: there are also 'failure to adhere to PoFA (ie no keeper liability)' and 'No consideration (ie, no contract)' paragraphs. My cut and paste from my Pages document lost its mojo there. The text is there though.

BlackSpangle

Well,

Looks like the obfuscation between JAS/PDC broke down, since I now have a rejection letter from JAS, as well as a PoPLA code. And yes, I still intend to complain to the BPA about the duplicity, however this silly affair turns out. I was just on my way out to post the same appeal to PDC. Saves me a stamp then!

Rejection page 1: [IMG]hxxp://i61.tinypic.com/4uytfr.png[/IMG]
page 2: [IMG]hxxp://i57.tinypic.com/r9g5ev.png[/IMG]

I'm heartbroken. I thought my well considered appeal would clearly reach the sensibilities of any rational human being. Who knew that PPCs tend to reject appeals out of hand?

OK: On to PoPLA. I'll edit my response, and hopefully the regulars here can assist with fixage once it's getting towards cooked.

Interesting that while I'm being invoiced as the keeper of the vehicle, "Adam" can clairvoyantly surmise that I was seen (not the driver of the vehicle, me) leaving the car park. Despite the salutation "Dear Sir/Madam" being used! And he has the cheek to call me out for using a pre-packaged response (which, by the way, it was not).

ampersand

BS - these key words plucked from your #16 explain why PPCs 'reject appeals out of hand.'

heart, well-considered, sensibilities, rational - any more clues needed?

Check Adam's popla code is valid here:
http://parking-prankster.blogspot.co.uk/2014/01/popla-code-checker.html

BlackSpangle

ampersand wrote: »

Check Adam's popla code is valid here:
http://parking-prankster.blogspot.co.uk/2014/01/popla-code-checker.html

Seems to be. I have until Nov 14 to submit the appeal.

BlackSpangle

Draft Number 1 of PoPLA appeal. Based on DustyKitten's successful submission, but altered to suit the circumstances.

The most important difference is that I've needed to surmise many of JAS's reasons, because they didn't even do me the courtesy of providing a fictitious set of reasons for appeal rejection, just a "we don't need to provide that information, so pay up". Thus, it's not that there's no decent breakdown of losses: there is no breakdown of losses. I guess that JAS figure they can submit that to PoPLA later, so that I don't have a chance to rebut?

Anyhoo, initial text:

Re: JAS Parking Solutions PCN, reference code JASXXXXX

20/10/2014

POPLA Code: XXXXXXXXXX

VRN: XXXX XXXX

Appeal Summary

I am the registered keeper of vehicle reg XXXX XXX and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

The charge is not a genuine pre-estimate of loss
The inadequate signage makes no valid contract with a driver
JAS has no standing to claim on behalf of the landowner
JAS made no attempt to mitigate its loss
The terms of the (disputed) contract and unfair and unreasonable.

I detail each of those points below, but must first note that the rejection letter gives next to no detail which could lead to better understanding as to how JAS arrive at their claim. As a result, JAS seem to be attempting to “game” the independent appeals process by a display of bad faith.

Appeal Details

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

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.

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.

JAS, when rejecting my appeal, has refused to provide any breakdown of cost issuing from the alleged breach, instead stating that “[JAS is] not under any legal obligation to answer the points raised in this format”. Thus, by refusing to substantively provide a breakdown of costs, JAS is improperly limiting my ability to examine the legitimacy of these claimed losses, and thus this appeal should be allowed on that basis alone.

The signs displayed at the car park also cast doubt upon the veracity of any losses. An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions? This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.

The charge that was imposed is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £94 can be reduced to £56.40 by early payment the charge is unreasonable to begin with.

2) Lack of adequate signage - no contract with driver

The JAS appeal refusal states that the claim in question is based in contract law (allegedly violating the terms of the contract by “[the driver having] left the premises and went out which is not authorised” and “you contractually agreed to abide by the terms and conditions”).

As the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. This car park is entered via a busy road serving a large Tesco’s, a large council car park and no signs are visible until you are inside the Staples/Curry’s car park. Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of JAS and not expecting to read a contract when they park. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): '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.'

The sign makes reference to transfer and acceptance of tickets: No tickets are issued at all in this car park, leading to more confusion on a driver’s part. Since some of these undated conditions are void in this car park, how is a driver to know which conditions are to be adhered to, and which to be ignored?

The sign also says that JAS Parking will request DVLA keeper information, but in this case, an application was made by its debt recovery arm, Parking Debt Collectors, trading as Dara Debt Recovery, resulting in considerable confusion as to the proper appeal path. Again, I contend that by engaging in such confusing displays, JAS forfeits its right to any contract with any motorist.

3) Lack of standing/authority from landowner

J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question. Therefore JAS have 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 JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS 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 JAS are entitled to pursue these charges in their own right.

I require JAS 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) No attempt to mitigate loss

JAS state that the driver was “seen leaving the car park” - omitting to say who saw this and when. I assume that they are referring to a parking attendant in their employ. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.


5) 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.

A small print sign which cannot be read until you leave your vehicle 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 signs with such small print and unclear conditions 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, 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.

BlackSpangle

It strikes me, on further consideration, that JAS's rejection letter was utterly and completely non-responsive to my appeal. It didn't even address a single point re: GPEOL/Standing/Mitigation/etc.

It simply said "We reject 'coz you left the car park. Pay up." (incidentally, I'm the RK here, not the driver).

Is that something that I can draw out more appropriately in my PoPLA appeal? I refer to it in the sections, but I guess I'm wondering if such an obvious form letter rejection jeopardises a proper appeal by its nature.

Coupon-mad

That's a good POPLA appeal - you could add a point asking JAS for evidence that the driver was “seen leaving the car park”. They won't have it!