POPLA appeal REFUSED!!!!

gavcradd

Not sure what to say... My POPLA appeal against Highview Parking has been REFUSED - I appealed on all of the usual grounds (GPEOL, flawed land owner contract) but the Assessor (Amy Riley) has refused the appeal.

The details that I have just been sent are...

Reasons for the Assessor’s Determination

It is the operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘no valid ticket displayed’. The operator submits that a parking charge is now due in accordance with the clearly displayed terms of
parking.

The appellant has made a number of submissions. The appellant submits that:

1. The parking charge of £85 does not represent a genuine pre-estimate of the operator’s loss, and so is not enforceable.

2. Highview Parking has no standing or authority to pursue charges nor form contracts with drivers.

3. The landowner contract is flawed and there are irregularities with thewitness statement.

4. The parking charge of £85 is excessive.

5. The signage at the site is not compliant with the BPA Code of Practice and so there was no valid contract formed between Highview Parking and the driver.

I will firstly discuss the appellant’s submission that the parking charge is not a genuine pre-estimate of the operator’s loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be enforceable. Where there is an initial losswhich may be caused by the presence of an appellant’s vehicle in breach of the conditions (e.g. loss of revenue from failure to purchase a Pay & Display ticket) this loss will be recoverable. Provided an initial loss can be demonstrated, any consequential losses incurred in pursuing that initial loss, such as issuing the parking charge notice and staff costs involved in responding to subsequent representations, may also be included in the preestimate of loss.

In certain situations, such as where the breach involves a failure to pay a tariff, this initial loss will be obvious. This initial loss is fundamental to the charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the appellant’s breach. The operator would have been in the same position had the parking charge notice not been issued.appeal number removed

In this case the appellant did not purchase a valid ticket and so there is aninitial loss to the operator of £1.The operator detailed its likely losses following issue of a parking charge notice. The operator has demonstrated an initial loss of the pay and display parking ticket, and the other losses referred to by the operator are consequential to this initial loss.

The operator is not required to show that this is the loss which was actually caused by the breach, but that it was a genuine pre-estimate of the loss which could be caused and so is enforceable against the appellant who agreed to the charge by parking.

Taking together the evidence before me, I am satisfied on this occasion that the charge represents a genuine pre-estimate of loss.

Secondly, the appellant submits that the parking company has no contract with the landowner that permits them to pursue these charges and form contracts with drivers. Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an appellant in an appeal, then the operator should address it by producing such evidence as it believes refutes a submission that it has no authority.

The operator has produced a witness statement signed by the Director of Urban Space Parking (the landowner) to demonstrate that it has the authority of the landowner to issue parking charge notices at this site.Thirdly, the appellant submits that there are irregularities in the operator’s witness statement; however, as above, I find that the witness statement produced by the operator is valid and there are no irregularities present.

Fourthly, the appellant submits that the parking charge of £85 is excessive. As discussed above, the operator has provided evidence showing how the charge of £85 is a genuine pre-estimate of the operator’s loss. I therefore find that the operator has provided sufficient evidence to refute the appellant’s claim that the parking charge of £85 is excessive. appeal number removed

Finally, the appellant submits that the signage at the site is not compliant with the BPA Code of Practice and so there was no valid contract formed between Highview Parking and the driver.The operator has produced photographic evidence showing that signage at the site in question states:

“All vehicles must display a valid staff/visitor permit or purchase a ticket from the pay and display machine.”

The operator has also provided a map of the site detailing where signage displaying terms and conditions of parking is located. Consequently, I find that the operator has demonstrated that it took reasonable steps to bring the terms of parking to the attention of the appellant. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions.

Having carefully considered all of the evidence before me I find that by failing to display a valid ticket, the appellant became liable for a parking charge notice in accordance with the terms of parking displayed.

Accordingly, I must refuse the appeal.

Amy Riley

Assessor

Any thoughts???

trisontana

Amy boobs again!

bazster

Post up Highview's GPEOL schedule please. I'm sure we all know what it says but let's be certain.

gavcradd

OK, The PEOL sent by Highview was as follows...

Unpaid Parking Fee Tariff at <car park> - £1

ANPR Image Verification For ANPR cases only - we are required by the BPA to check the data to confirm it's correct £0.75

DVLA cost for requesting the Owner/Keeper details £2.50

Document Print Documents are all printed externally by a supplier for which a cost per document is applied £0.15

Postage Charge Postal cost per Notice, plus envelopes £0.92

Responding to Appeal Cost of Appeals Executive including Employer's NI to respond to appeal £11.83

Responding to POPLA Appeal - Cost of Compliance Co-ordinator including Employer's NI to administer the POPLA Appeal, collate required information and build, print, sign offand send POPLA evidence pack £68.07

Total £85.22

bazster

Right, so you complain to the lead adjudicator (Henry Greenslade) that Amy Riley has ignored what he (Greenslade) clearly stated in his Annual Report, and that you request the case be re-assessed by someone else:

However, genuine pre-estimate of loss means just that. It is an estimate of the loss
which might reasonably be suffered, made before the breach occurred, rather
than a calculation of the actual loss suffered made afterwards.

bod1467

Responding to Appeal Cost of Appeals Executive including Employer's NI to respond to appeal £11.83

Responding to POPLA Appeal - Cost of Compliance Co-ordinator including Employer's NI to administer the POPLA Appeal, collate required information and build, print, sign offand send POPLA evidence pack £68.07

Neither of those are a Genuine PRE-Estimate of Loss. And even if they could be included, the full cost cannot, as only at most 2% of all PCNs go to appeal, so their GPEoL would be at most 24p and £1.36 respectively.

esmerobbo

More like a decision by "Old Mother Riley".

4consumerrights

@gavcradd - did you receive an evidence pack?

If yes did you rebut it?

It is vitally important more than ever before that evidence packs are fully rebutted and often parking companies fail to provide them.

gavcradd

Yes, I received the evidence pack and yes, I immediately sent in a rebuttal (and had confirmation that it was added to my file).

I'll post my rebuttal below :

In light of the additional information sent to me and POPLA by Highview Parking in relation to the above, I wish to add further information and clarification to my representation.

Genuine pre-estimate of loss

On page 3 (section of Highview Parking’s information pack, they suggest that I have not provided any information as to why I believe that the claim was not a pre-estimate of loss. Seeing as they had previously (despite requests) failed to provide me with a breakdown of how their £85 charge was calculated, I contend that this was impossible.

As I now have the information, I am able to clarify my position. Highview Parking have submitted a breakdown of their losses, totalling £85.22. However, I contend that only £5.32 of this amount (covering postage charges, stationery, etc) is the genuinue pre-estimate of loss. The additional £79.90 covers costs relating to responding to appeals, including £68.07 for responding to the POPLA appeal! It is an absolute fallacy to suggest that responding to a POPLA appeal can be included as a cost that is a genuine pre-estimate of the losses encountered. Statistically, the vast majority of motorists will not get as far as appealing to POPLA; as you will no doubt be aware, the POPLA annual reports from 2013 and 2014 show that a mere 144 appeals (12 in 2013 and 132 in 2014) were heard by POPLA in relation to Highview Parking. By including this in their breakdown, I assert that this proves beyond all doubt that the £85 is a punitive charge and not a genuine pre-estimate of loss.

Further to this, I contend that Highview Parking did not employ anyone especially to deal with my case and so the costs can be thought of as simply the running costs of parking enforcement. Were no breaches to occur in that car park, the costs to Highview Parking would remain the same. Highview Parking cannot lawfully include operational day-to-day costs in the loss claimed. Aditionally, any genuine losses would be tax-deductible, further reducing the loss and something which Highview Parking have not acknowledged in their breakdown.

Finally, in his 2014 POPLA Annual Report, Mr Henry Greenslade, Lead Adjudicator, states:

“...However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards.”

By including the costs of a POPLA appeal in their calculations, Highview Parking have clearly shown that they have produce a post-estimate rather than a pre-estimate, as it is clearly not foreseeable whether a motorist would indeed appeal to POPLA or not.

Highview’s assertation of commercial justification

Highview Parking state (again on page 3) that the charge is commercially justified, and quote from the Parking Eye v Beavis and Wardley small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway). May I remind you that POPLA Assessor Chris Adamson has stated in June 2014 that:

''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. 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.

Contract with landowner - no locus standi

Highview Parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that Highview Parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner.

I would ask POPLA to please note that this is now the third time that I have requested to see this contract: once in an email to Highview Parking, again in my original POPLA appeal and now for a third time.

On page 25 of their additional information, Highview Parking have provided a witness statement in lieu of the relevant contract. I contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even the landowner or an employee of the landowner. Nor does this witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Additionally, it does not show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow Highview Parking to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. As Highview Parking have produced a witness statement mentioning the contract, but have not yet produced the actual un-redacted contract document, I ask that POPLA be consistent and rule any such statement invalid.

Therefore, I require the un-redacted contract for all these stated reasons as I contend that the Operator's authority is limited to that of a mere parking agent; I believe it is simply a standard business agreement between Highview Parking and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 .

In that case the Judge found that, as the Operator did not own any title in the car park:

“The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.”

I challenge Highview Parking to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. Highview Parking cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

Registered keeper or driver

On page 5, Highview Parking seem to suggest that they are confused as to whether I am appealing as the registered keeper or driver. I am unsure where this confusion comes from, but for the benefit of everyone, I would like to state that I am merely the registered keeper of the vehicle and am bringing this appeal in this role.

I would be extremely grateful if you could add the above additional information to my submission.

Guys_Dad

The guidelines on POPLA appeals state the following https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/9155/guidance-unpaid-parking-charges.pdf

Note that this is a gov.uk web site

POPLA operates on the following basis:
23  It is completely independent;
 It covers all tickets issued on relevant land in England and Wales by ATA members;
 It is provided free to motorists;
 Its decisions are binding on the industry (but not on drivers and
registered keepers); and
 It is entirely sector funded.

If a PPC adds its costs for handling POPLA claims, then it is NOT free to motorists.

bod1467

And she STILL refused the appeal?!?!

Wow! Just .... wow!