ANPR ltd PCN.. Help

StaffsSW

I've had a similar issue recently, and the BPA ruled on it, have a look here

https://forums.moneysavingexpert.com/discussion/comment/67156026#Comment_67156026

nford5

Today I received an email back from the BPA


I have investigated your complaint with the operator and can advise as follows.

The operator should have provided you with a verification code when they rejected your appeal. The operator has therefore re-sent your rejection letter which includes the verification code you require to appeal to POPLA.

Please also find a copy attached to ensure you can appeal as soon as possible.

We have reminded the operator of their obligations to issue a POPLA Code when an appeal is rejected.

In view of the above, I have closed the investigation.



So I now have a POPLA code :T and want to get my appeal in. I cant find a template for Anpr ltd, should I just use one and change the details? Do I also need to attach and copys of letters or my pay and display ticket which I still have?


Thanks again

bod1467

Loads of templates in the NEWBIES thread - POPLA section. Just find one that's close enough to your situation and edit accordingly.

Attaching a scan of your P&D ticket will help with respect to the No GPEoL point.

nford5

This is my Popla appeal, if someone could check it over that would be great..

Dear Popla

Re: Anpr Ltd PCN, reference code: X19
POPLA Code: 041

I am the registered keeper and I wish to appeal a recent parking charge from Anpr Ltd. I submit the points below to show that I am not liable for the parking charge:

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.
4) The signage was not readable so there was no valid contract formed.

1) No genuine pre-estimate of loss
This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made, which I have a copy of the pay and display ticket

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 was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. 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 Operator 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.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

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

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, 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:

''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.''

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

3) No standing or authority to pursue charges nor form contracts with drivers
[FONT=arial,helvetica,sans-serif]I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Anpr Ltd must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. [FONT=arial,helvetica,sans-serif]I therefore put Anpr Ltd to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Anpr Ltd and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to Anpr Ltd. [/FONT]

4) The signage was not readable so there was no valid contract formed between Anpr Ltd and the driver
The only signs are up on poles, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that Anpr Ltd place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by Anpr Ltd to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Anpr Ltd signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Anpr Ltd to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.[/FONT]

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. [FONT=arial,helvetica,sans-serif]Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and i[FONT=arial,helvetica,sans-serif]t is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.[/FONT]
[/FONT]
In summary, Anpr Ltd are attempting to enforce a punitive charge for an alleged infringement which they have no reliable means of proving ever took place at all at the times stated, not having observed nor shown evidence of the parking period at all. I include a copy of the pay and display ticket purchased and respectfully request therefore, that my appeal is upheld and the charge is dismissed.

This concludes my POPLA appeal.

Yours faithfully,



xxxxxxxxxx

Should I mention the fact that I had to complain to the BPA to get a Popla appeal code?

Coupon-mad

That's a good start and a very recent template I wrote about 'no GPEOL' - but point #2 of that version is about a postal PCN where paragraph 9 of the POFA applies. Yours was a windscreen PCN where paragraph 8 applies instead.

So pop back to the examples in 'How to win at POPLA' and find a windscreen ticket version where the NTK and no keeper liability paragraph refers to paragraph 8 instead. And then you will need to check your NTK to make sure the same errors apply (there may well be different errors, but there will be plenty because ANPR Ltd haven't the foggiest clue about a compliant NTK!). Also was the NTK received by day 57, otherwise it's too late for keeper liability.

Should I mention the fact that I had to complain to the BPA to get a Popla appeal code?

Yes and the fake claim form and the misleading Wonga-style 'referral to Expedion' as if they are another company when in fact it is run by ANPR Ltd employees I understand. Put that at the beginning, briefly. Make sure your appeal doesn't admit who was driving, as I didn't proof-read it in depth.

nford5

Thanks for the help, is this one the correct one to use?

Dear Popla

Re: Anpr Ltd PCN, reference code: X19
POPLA Code: 041

I am the registered keeper of the above vehicle. I received a Notice to Keeper from Anpr ltd on 10th October 2014 for a parking charge of £100 issued on 16th August 2014.
Anpr ltd ignored all my attempts to obtain a Popla appeal code and even sent me false court papers from a company called Expedion until I complained to the BPA who finally obtained my appeal code. I wish to appeal on the following grounds:

1. The parking charge of £100 is not a genuine pre-estimate of loss.
2. Anpr ltd have formed no contract with the driver (lack of signage, no consideration/acceptance).
3. Anpr ltd have no proprietary interest in the land and no standing.
4. The Notice to Keeper fails to establish 'keeper liability' under PoFA 2012.

Detailed submission

1. The parking charge of £100 is not a genuine pre-estimate of loss.

This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made, which I have a copy of the pay and display ticket

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 was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. 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 Operator 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.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

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

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

This charge cannot be 'commercially justified' either, 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:

''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.''


2. Anpr ltd have no contract with the driver of the vehicle,
Anpr ltd 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 for the car park. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.

I require Anpr ltd 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 any landholder). 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 otherwise there is no authority.


3. It is my belief that Anpr ltd have no proprietary interest in the land to issue charges and pursue them in their own name, including at court level. In the absence of such title, Anpr ltd must have specific contractual authority from the landowner to issue and pursue charges in the courts, and to make contracts with drivers. I do not believe such a document is in existence. I therefore put Anpr ltd to strict proof to provide POPLA with an unredacted, contemporaneous copy of the contract between them and the landowner which provides them with the authority to issue and pursue charges. In accordance with the BPA Code of Practice paragraph 7, This must include assignment of the right for Anpr ltd to make contracts with drivers and for Anpr ltd to pursue them at court in their own name. Please note that a 'witness Statement' or 'site agreement' will be insufficient to provide all the required information set out in 7.1 and 7.2 and I put Anpr ltd to strict proof that their contract covers every point in this section of the BPA CoP.


4. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012. This is on two grounds:
(a) The Notice to Keeper does not specify the 'period of parking'. It states only that the car was seen at 19.01 am on the day in question.
(b) The Notice to Keeper does not identify the 'creditor'.

POPLA Assessor Matthew Shaw has stated that the NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are clear and unequivocal and a matter of statute. Any omission or failure in the NTK wording means there is no 'keeper liability'. As I was not the driver myself, there is no case against me at all so it is, at best, surprising and irksome that Anpr ltd are pursuing this matter and wasting my time. I expect POPLA will see the significance of an operator trying to pursue a keeper, in a case where no keeper liability can be established by virtue of the operator's own failures.

In summary, Anpr Ltd are attempting to enforce a punitive charge for an alleged infringement which they have no reliable means of proving ever took place at all at the times stated, not having observed nor shown evidence of the parking period at all. I include a copy of the pay and display ticket purchased and respectfully request therefore, that my appeal is upheld and the charge is dismissed.

This concludes my POPLA appeal.

Yours faithfully,
xxxx

Is this ok? Many thanks again

Coupon-mad

Yes that should do nicely. ANPR Ltd never can show POPLA that their charge is a genuine pre-estimate of loss and I suspect their attention is more focussed on the fact that they are teetering on the edge of the abyss of being kicked out of the BPA I think, as their sanction points must be sky high. You will beat them.

soton_25

What was the result?

Umkomaas

soton_25 wrote: »

What was the result?

Sadly, this appears to be yet another case of forum regulars, who have no personal involvement in the OP's problem, giving freely of their time and experience (acquired over hundred's and hundred's of hours of reading, research, learning and advice giving), not being afforded the very basic courtesy of an update on the work they have undertaken on the OP's behalf, without which he or she would remain well and truly up sh/t creek and with little clue on how to resolve their issue!

Milk as much as possible, take everything for granted, give them nothing back. A modern day philosophy.

soton_25

Well you have my promise that everyone will get feedback on my Premier Park hilarities.


Good on everyone who helps out on here. It is fun reading through some of the stuff... let alone helpful.