More JAS nonsense

BlackSpangle

Coupon-mad wrote: »

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!

Added to section on mitigation of loss:

I state the above suggestions for mitigation while noting that JAS have provided no evidence whatsoever in their rejection letter that the vehicle was left in the car park while the driver went elsewhere. They have also not stated how long this alleged absence was (10 seconds? 1 hour? 5 days?). In general, this goes to the general non-responsiveness of the rejection letter. If the Operator wishes to pursue a claim for monies, recourse to unsupported and vague accusations scarcely create the impression of someone seeking redress in good faith.

EnigmaPart1

JAS emailed me back and said "i am employed by JAS - Why are JAS not allowed to employ people"

BlackSpangle

EnigmaPart1 wrote: »

JAS emailed me back and said "i am employed by JAS - Why are JAS not allowed to employ people"

They certainly have a grand future for themselves in the production of non-sequiturs. A pity that such a business is only marginally more useful to society than private parking management companies.

BlackSpangle

OK - this is the final letter going out tomorrow, unless I get any particular reasons as to changes.

I did revisit the carpark to validate that my complaints about signage are still correct - they are.

---

Re: JAS Parking Solutions PCN, reference code XXXXXXXXXX

XX/XX/2014

POPLA Code: XXXXXXXXXX

VRN: XXXX XXX

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.

In the past, JAS have submitted general business costs to POPLA and presented them as attendant losses. These are not losses at all. Staff whose wages are paid in any case do not count as losses stemming from breach. To establish those as losses, JAS would need to show that the staff were “significantly diverted from their usual activities” or that there was “significant disruption to their business” [HHJ Charles Harris in A Retailer vs Ms B (9th May 2012)]. Since the staff in this case are engaged in their usual activities, it follows that such costs can not constitute loss. IT systems (unless they are reinstalled after every breach - which would be ridiculous) do not count as losses. Professional advice sought from the BPA or external legal sources, unless that advice was specific to a particular case, do not count as part of a genuine pre-estimate of loss. I specifically call the Assessor to note that merely adding the boilerplate text “in this case” to a general business cost does not magically transform it into a loss derived from any alleged breach.

I furthermore stress that the costs of the POPLA appeal cannot be included in any pre-estimation of loss (if such a claim is made - again, absent of any responsive text from JAS, I am at significant disadvantage in knowing how its statement of loss is constituted). Patrick Troy of the BPA states specifically:

“What you cannot do though is add the per appeal fee to your Parking Charge Notice amount calculations - only 1.1% of tickets issued go to POPLA and as such could not form part of a Genuine Pre-estimate of Loss"

Similarly, inflating costs by adding in layers of management wages to check the validity of normal ticket processing staff are artificial, and should be rejected out of hand as pre-estimations of loss. The idea that any company would hire staff who were so incompetent as to require (for instance) two or three additional levels of supervisory checks to perform their basic duties is so egregious as to beggar belief.

Some Operators have taken to using the term “commercially justified” to describe its charges instead of a genuine pre-estimate of loss. This would be attempting to rely on Parking Eye vs Beavis and Wardley. That would be a pointless activity, since that case is scheduled for review by the Court of Appeal, as HHJ Moloney knew it would be, given that the case was covered by many caveats, and not backed by significant case law. In addition to this, POPLA assessor Chris Adamson specifically remarked (when Operator VCS attempted this assertion):

''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.’'

In this particular case, the JAS model is entirely different from Parking Eye’s in the Beavis case, since the revenue model for JAS is entirely at odds with Parking Eye’s, and JAS do not claim to be the principal in this matter, being mere agents for sign erection and ticket issuance.

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.

Statements like “we would assume that [an Operator] would issue legal proceedings” absolutely do not constitute transfer of 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.

I state the above suggestions for mitigation while noting that JAS have provided no evidence whatsoever in their rejection letter that the vehicle was left in the car park while the driver went elsewhere. They have also not stated how long this alleged absence was (10 seconds? 1 hour? 5 days?). In general, this goes to the general non-responsiveness of the rejection letter. If the Operator wishes to pursue a claim for monies, recourse to unsupported and vague accusations scarcely create the impression of someone seeking redress in good faith.


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.

Coupon-mad

That's good, I like your wording and must use this again!


To establish those as losses, JAS would need to show that the staff were “significantly diverted from their usual activities” or that there was “significant disruption to their business” [HHJ Charles Harris in A Retailer vs Ms B (9th May 2012)]. Since the staff in this case are engaged in their usual activities, it follows that such costs can not constitute loss. IT systems (unless they are reinstalled after every breach - which would be ridiculous) do not count as losses. Professional advice sought from the BPA or external legal sources, unless that advice was specific to a particular case, do not count as part of a genuine pre-estimate of loss. I specifically call the Assessor to note that merely adding the boilerplate text “in this case” to a general business cost does not magically transform it into a loss derived from any alleged breach.

You could add a link to the case:

http://www.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

Very relevant to parking cases, it's been mentioned before in a couple of court defences we've seen but we should use it more.

BlackSpangle

POPLA hearing set for 9th December. Waiting for JAS evidence pack now.

I just finished reading Anthony Ryan's "Blood Song", so in the mood for a new piece of fantasy fiction.

BlackSpangle

OK, Finally got the evidence pack.

Note: I got the pack from POPLA, after I specifically enquired about it. I guess that the post from JAS must have got lost somehow; JAS's submission to POPLA was made on the 6th November. Wow, the post from Suffolk to Cornwall really sucks these days.

"Contract" from JAS to Staples p1:

and p2:



What can I say? This one is even more redacted than the ones I've seen before - they've redacted all the sites at which they operate. And of course, no date, no authority transfer, no signature, no names.

Their GPEOL "calculations":

The genuine pre-estimation of loss set out below refers to costs that we estimate, at the time of issuing the Parking Charge Notice, would be incurred in all cases.

• DVLA Fees / Processing Costs for this appeal cost is £13
• Expense of each appeal is for example Stationery includes postage and printing £3.50
• Parking Attendants salaries which includes Employers National Insurance and Tax (PCN recording and issuing) for each case 13.81
• Appeals Staff (call handling / appeals writing) for each case is £19.50
• 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
• IT system up keep to make sure all the information comes up correct and secure for each case cost us £19.69
• Total Genuine Pre-estimation of Loss for this case. £94.00

This is my rebuttal back to POPLA:

Many thanks for forwarding the evidence pack from JAS Parking, in response to my query. I had not received this (to date) from the operator, but that could merely be a delay in posting, of around 28 days delay. Living in Cornwall, I am used to some services being a little slower than in other parts of the UK.

I wish to respond to some of the evidence as submitted by JAS Parking. The summary of my response is as follows:

1. The photographs submitted do not demonstrate the alleged contravention.
2. The contract from the landowner is not present, and the “contract” from the tenant is so redacted as to be worthless.
3. The pre-estimate of loss includes several items which are not losses, but fixed business costs, resulting in a gross over-inflation of the estimate, rendering it an unrecoverable penalty.

Details

1. Photographic Evidence

I see a set of pictures of the car which is registered to me, in a car park with spaces to the left and right of it. All this would demonstrate is that the car was in the car park and that there was still parking availability, meaning the retailer (and thus its agent) could not possibly suffer loss by denial of parking resources.

The reproduction of the PCN, which is unsigned contains no descriptions other than “male” for the driver of the vehicle. It is true that one of the several drivers insured for this vehicle is male. While that eliminates around 50% of the population of this planet, it is entirely unclear that it meets any standard of proof for showing that there was a contravention. There is no named witness or continuous video feed to act as any sort of corroboration for the allegation of breach of terms and conditions.

To reiterate: the evidence as submitted by the Operator does not show the breach of the contract they claim was violated.

2. The “Contract” from the Landowner

I am truly at a loss where to begin. The contract from Staples is so heavily redacted as to render it without any value as evidence whatsoever. It has no date on it; it has no signature on it; it does not identify that the signatory has the appropriate authority within Staples to enter into such a contract; it does not even list the location of the alleged contravention as one which JAS has authority to patrol (because all locations have been redacted from the submitted evidence).

What is admitted in the evidence is that Staples is not the landowner. There is no copy of the contract from landowner to tenant to illustrate that even Staples has the authority to use JAS to issue tickets.

To summarise: JAS has not even begun to demonstrate that it has standing to issue tickets at the site from where the ticket was issued. This is in clear violation of section 7 of the BPA code of practice. As I submitted in my appeal, a statement like “we would assume that JAS Parking Solutions would seek legal action” does not convey the authority to do so. The BPA requires that “[the Operator has] the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary”. This transfer of authority is entirely missing from the contract, even if were not so redacted as to be useless as evidence.
It should be noted that this redacted contract has been the factor upon which other POPLA appeals have gone against this particular Operator, most recently from Assessor Karunairetnam.

3. The Genuine Pre-Estimates of Loss Calculation.

This calculation is the latest in an ever shifting set of combinations, attempting to reach the magical figure of the parking charge claimed. Yet JAS has still not managed to come up with a valid set of calculations of demonstrable losses: merely attempted to claim a set of fixed business costs as losses. Numerous POPLA decisions have cited this false accounting as reason enough to grant an appeal, and it does not seem that this Operator has taken any action to improve the presentation of their true estimate of losses. As stated in my original appeal, adding “in this case” to a set of fixed business costs does not transform them into genuine estimates of loss.

DVLA and Processing Costs: The DVLA KADOE system charges £2.50 per query. JAS initially state their loss as being £13, but later on say that it is £3.50. I will take them at their word and say that £3.50 is the cost of issuing a ticket, but I would also state that since some people pay tickets without waiting for the Notice to Keeper, it cannot be a cost realised in each ticket issuance.

Parking Attendants Salaries: This is a fixed business cost. I cannot be made to believe that writing parking tickets is not somehow an expected duty of a parking attendant.

Appeals Staff Salaries: Again, a fixed business cost. BPA membership requires an Operator to have an appeals process. As such, it cannot be a loss generated by any parking contravention. Again, is JAS really maintaining that appeals staff are significantly diverted from their normal duties by processing appeals? What, then, are their normal duties, if not appeal handling?

Office Management: Again, a fixed cost of doing business. These people would be employed anyway to perform the jobs of collation and data preparation. Moreover, since only around 2% (at best) of cases go to POPLA, the inclusion of the POPLA costs is would need to be divided by 50 to count as an estimated loss. In any case, a contravention would not divert them from their normal duties, and is thus not an estimated loss.

IT System Management: Is JAS really making the case that they need to reinstall and maintain their IT systems per ticket issued? That is a plainly ludicrous claim, and obviously designed to make a fixed business cost masquerade as a loss emanating from the alleged breach of contract.

At best I can see losses of around £7.00 (DVLA fees and Stationery/Postage) from these figures submitted by JAS . Thus the £94 claimed becomes a penalty charge, which is unenforceable.

I ask that these rebuttals are included in the Assessors deliberation.

Coupon-mad

I got the pack from POPLA, after I specifically enquired about it. I guess that the post from JAS must have got lost somehow; JAS's submission to POPLA was made on the 6th November. Wow, the post from Suffolk to Cornwall really sucks these days.

LOL!

Your rebuttal is great stuff, very useful for future JAS cases to see their 'sums' set out as well! I think they failed GCSE maths...

Guys_Dad

As above. What a totally counter-productive letter from Staples !!!

nicksss

Should easily win on insufficient evidence of contract with landowner.
I had exactly the same, redacted, letter purporting to be a contract, and won on this basis at Poplas - same store, same town.