Parking appeal Upheld -no genuine pre estimate of loss, Thank you all

LinMar

I posted here back in September looking for advice- as I had received a ticket on private land, I wasnt displaying a ticket.
I thought i had no hope but I followed your advice and example letter to make an appeal.
POPLA notified me today that the appeal was upheld as the parking security company had not proven the cost was " a genuine pre estimate of loss". I have posted the text of my my appeal as I hope this helps someone else.
Good luck:

Appeal reasons:
TO POPLA Re: reference code 0009120100 Vehicle Reg: AF14XRO PCN NO.09120100 POPLA Code: 3712514008 I was the driver of the vehicle at the time of this charge and I wish to appeal the parking charge from Local Parking Security LTD. I submit the points below to show that I am not liable for the parking charge: 1) No genuine pre-estimate of loss
1) No genuine pre-estimate of loss This car park is Pay and Display and I admit that a payment was not made, although the car was parked for approximately 05 minutes, However up to 1 hour would have cost £ 0.50p so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £0.50p at the most. Local Parking Security LTD have not told me these details (see point #2). In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above the stated tariff, I require Local Parking Security LTD to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach. The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor regard paid to any 'genuine pre-estimate of loss' prior to setting the parking charges at this site (before putting signs up and enforcing the charges, back when the contract was initially signed). I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours. The Parking Solutions Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement)would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. The British Parking Association Code of Practice uses the word 'MUST': "19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.'' This charge cannot be 'commercially justified' so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). 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.''

Information has been withheld from me by Local Parking Solutions in a deliberate attempt to prevent a successful appeal I have emailed Local Parking Solutions requesting certain information on two occasions including asking the name of the trade association that they are affiliated to and have received no reply to my questions. I find this unacceptable as I have been denied information that would assist me in clarifying points that would assist my appeal (email string attached) This concludes my POPLA appeal

Guys_Dad

Who was the adjudicator, please?

Coupon-mad

And can we see the text of the decision please, too? In the 'POPLA Decisions' thread at the top please, as well as here.