Draft POPLA appeal

sgtbanjo

Hi, I have completed the first stage appeal to the PPC and obtained my POPLA code. Using the stickies and newbie thread I have cut pasted and edited this appeal.

I believe the 'thing to do' is to post it here so that those in the know can give it a once over before sending. I would be grateful if someone could do that for me please.

The PPC involved is Local Parking Security. The vehicle was windscreen ticketed and then NTK was received and appealed against.

Here is the appeal I intend to submit to POPLA.

Thanks in advance.





On the 27-08-2014, LPS issued a parking charge notice because the above vehicle failed to display a valid parking permit. This is allegedly in breach of the terms and conditions which LPS allege are displayed on signage at the car park.

My Appeal.
1. The amount of the charge is disproportionate to the loss incurred by LPS Ltd and is punitive, contravening the Unfair Contract Terms Act 1997. I also consider the issue parking charge notice (PCN) to be a penalty because LPS have alleged a breach of terms and conditions and yet have not quantified their alleged loss (which cannot include business running costs nor the POPLA fee).

2. I do not believe that LPS has specifically demonstrated a proprietary interest in the land,
because they have no legal possession which would give LPS any right to offer parking, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, LPS’s lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge. I require LPS Ltd to demonstrate their legal ownership of the land to POPLA.

3. I contend that LPS are only an agent working for the owner and their signs do not help them to form a contract without any consideration capable of being offered.
VCS -v- HMRC 2012 is the binding decision in the Upper Chamber which covers this issue
with compelling statements of fact about this sort of business model.

4. I believe there is no contract with the landowner/occupier that entitles them to levy these
charges and therefore has no authority to issue PCNs. This being the case, the burden of proof shifts to LPS to prove otherwise, so I require that LPS produce a copy of their contract with the owner/occupier and that the POPLA adjudicator may review it.

5. Even if a basic contract is produced and mentions PCNs, the lack of ownership or
assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between LPS and the owner/occupier, containing nothing that LPS can lawfully use in their own name as a mere agent, that could impact on a third party customer.

6. The guidance offered by the Department of Transport set out in: Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012: Recovery of Unpaid Parking Charges (September 2012 - Section 16 FAQs, point 1):
‘Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.’

The evidence presented by LPS does not illustrate in any way how the charge issued by them in this instance relates to an actual loss. LPS have provided no detail of their administration costs for issuing this charge. Based on the available information the charge is disproportionate to the known loss of the Landowner and appears to be designed to penalize the driver.
I submit this charge is therefore not a genuine pre-estimate of loss.

7. I am not liable as keeper.
The Notice to Keeper fails to meet the requirements of Paras 8(2)(c), 8(2)(e) and 8(2)(f) to hold the keeper liable.


Yours faithfully

Coupon-mad

Do you have an existing thread? I can't check as the forum is glitching again today. If so please ask Crabman to merge them ,as it's so much easier if we can review a POPLA appeal in the light of the cases details.

I would not mention: VCS -v- HMRC 2012 as that was overturned on appeal and doesn't help. Generally the appeal points are there (and if the NTK is flawed then a keeper should win on that point alone) but the template you've looked at seems like it may have been quite old. Have you looked at the examples in the newbies thread post #3 'How to win at POPLA' and found a few windscreen ticket examples to crib from? They normally have more to say on the fact there was no GPEOL.

sgtbanjo

Hi Coupon-Mad,

No I didn't start a thread initially as I was under the impression that one should help themselves, so to speak. I did get this template via a link in the newbies thread but I shall look again if you say there are better ones.


For reference, I appealed the NTK with this:-


I refer to the above notice which I challenge as keeper of the car, on the following grounds:

a). The sum sought does not represent a genuine pre-estimate of any loss and yet it is intended as a deterrent, so the charge is a penalty. There is no commercial justification for the charge.
b). The signage on site is deficient, the wording unclear and it fails to comply with the Code of Practice.
c). In the absence of any evidence it is my case that you lack any or sufficient proprietary interest in the land.
d). Your notice was deficient and fails to comply with Schedule 4 of the Protection of Freedoms Act 2012.
e) Any contract with myself, or the driver, is denied.

The purpose of this communication is threefold:

1. This is my formal representation
There will be no admissions as to who was driving that day and no assumptions can be drawn in the absence of evidence. I have decided to appeal this as keeper and as such, you must either rely on the POFA 2012 or you must cancel the charge if you know you cannot claim keeper liability in this case. Please uphold this challenge or send a rejection letter, so I can escalate this matter to the independent appeal service offered by your Trade Body.

2. ''Drop hands'' offer
The alleged 'parking charge' is baseless but I understand that you will have incurred nominal costs in the mostly automated process of issuing a Notice/letter. Equally, I have incurred costs to date, for researching the law, reading your Notice & handling the matter and responding, despite a lack of any contract existing in a durable form. I calculate both my costs and yours to be under £15 at this early stage. Therefore, this is a formal “drop hands” offer as my costs and yours so far, are similar. Withdraw your charge within 35 days of receiving this offer and I will not pursue you for my costs.

3. Notice of my withdrawal from this alleged contract
I hereby give notice that I am exercising my right to withdraw from the alleged contract (the validity of which is denied) for the apparent parking event described in your Notice. The alleged contract was never properly offered or explained by you, nor was any service from you expressly requested by the driver or by me - and it is hereby cancelled. Any obligations now end, save in the case of an independent appeal being offered to me at this stage by you.

If I avail myself of that provision then my notice of withdrawal extends merely to undertake that process in the interests of good faith. But my alleged obligations end immediately after the decision (whatever the outcome) made by the IAS or POPLA.

Neither the driver nor myself gave 'prior express consent' or any consent at all for the alleged contract. A contract derived merely from a sign is at best based upon implied consent/performance (which is also denied). Nor was the driver or myself informed in a clear and comprehensible manner, of the right to withdraw from a consumer contract and the duration and manner in which this could be done. Nor did your signs/Parking Charge Notice state certain information required for a contract, such as (but not limited to) the name and geographical address of the client on whose behalf you are acting as agent. Nor did you serve the required contractual information by durable means prior to the parking event.

As such, you have breached the information requirement of the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013 which took effect from 13th June 2014. Businesses which offer consumer contracts must abide by UK consumer law. If you have any doubt in this regard or about these Regulations, I recommend you seek legal advice and I look forward to your considered reply within 35 days.

Yours faithfully

Coupon-mad

Well it depends on whether the P&D fee was paid (if this was a P&D car park). Is failure to pay as well as failure to display? If not, then include the fact there was no initial loss, like in this GPEOL paragraph here:

https://forums.moneysavingexpert.com/discussion/comment/65370663#Comment_65370663

And also I didn't see anything about unclear signage (always worth including even though all PPCs must have signs up) like here:

https://forums.moneysavingexpert.com/discussion/comment/66245932#Comment_66245932

Also it's clearer to put your heading in bold and summarised at the start like in that one.

sgtbanjo

It was a P&D car park belonging to a pub. The driver had parked to nip to the toilet in the pub as they were heavily pregnant at the time. No more than 5 minutes and there was a 'ticket' on the car when they returned.

Coupon-mad

They were flippin' quick to apply a windscreen PCN then! So I would NOT use the 'no initial loss' argument but would add the usual 'unclear signage' stuff and make the 'no GPEOL' argument stronger if you can add more, like you see in other examples. And most importantly IMHO, a slam-dunk winning appeal point for a keeper is this:

I am not liable as keeper.
The Notice to Keeper fails to meet the requirements of Paras 8(2)(c), 8(2)(e) and 8(2)(f) to hold the keeper liable.

So I would spell out what is omitted so even a newbie POPLA Assessor can't miss it.

sgtbanjo

Yes - the driver informed me that the car park poacher was sat waiting on the car park in a vehicle. Unfortunately they were under such pressure for the loo that they didn't have time to purchase a ticket.

Thanks for your help so far, I will re-edit and post the appeal.

sgtbanjo

Ok, Here is my second attempt. I have had to remove quite a lot so I hope it still reads ok. I've also added a small amount at the end of section 3 re: not quantifying the contravention.

any help appreciated.



On the 27-08-2014, LPS issued a parking charge notice because the above vehicle failed to display a valid ticket. This is allegedly in breach of the terms and conditions which LPS allege are displayed on signage at the car park.

My Appeal.

1. The Charge is not a genuine pre-estimate of loss

The demand for a payment of £85 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put Local Parking Security Ltd. to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.

The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event.


2. No standing to pursue charges in the courts nor to make contracts with drivers

LPS have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put Local Parking Security Ltd. to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between LPS and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not a managing agent nor retailer nor any facility on site which is not the landholder - and the contract must comply with paragraph 7 of the BPA CoP. Such a contract must show that this contravention can result in this charge at this car park and that LPS can form contracts with drivers in their own right and have the assignment of rights to enforce the matter in court in their name. A witness statement or site agreement will not suffice as evidence as these are generally pre-signed photocopies wholly unrelated to the contract detail and signed off by a person who may never have seen the contract at all. I insist that the whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged, and to see all terms and conditions, restrictions, charges, grace period and the locus standi of this operator.


3. No Keeper liability - the NTK is not compliant with the requirements of POFA2012

The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these 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, as at a time which is—(i) specified in the notice; and
(ii) no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));

(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;

(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made.''

Where paragraph 9 requires certain wording, it is omitted. Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on ‘Parking without displaying a valid ticket'. This so-called contravention is not quantified i.e. had the ticket expired, was a ticket purchased, was an incorrect fee paid? and thus it fails to meet the strict requirements of POFA2012.

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


4. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered

The terms that the Operator in this case are alleging gave rise to a contract were not reasonable, not individually negotiated and caused a significant imbalance to my potential detriment. There is no contract between the Operator & motorist but even if POPLA believes there was likely to be a contract then it is unfair and not recoverable.
This charge is an unreasonable indemnity clause under section

4(1) of the Unfair Contract Terms Act 1977, which says:
‘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.’
In the Unfair Terms in Consumer Contracts Regulations 1999:-

''5.—(1) 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 Office of Fair Trading, Unfair Contract Terms Guidance:
Group 18(a): Allowing the supplier to impose unfair financial burdens

''18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However... a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

5. Unclear and Non-compliant Signage forming no contract with driver

This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not LPS' customers and are not parties of equal bargaining power, nor are they even aware that any 'contract' is possible. Therefore all terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. In this case, the driver maintains that no signs were seen in the immediate area.

Accordingly I contend that any signs must have been unclear to the point that any core parking terms LPS are relying on were not sufficiently prominent for the driver to discern before parking. Signage must also fail to comply with the BPA Code of Practice requirements. I put LPS to strict proof of clear signs at the entrance and all around this car park. Any photographic evidence must be taken at a similar time of day/light level as in my case.
I contend that the signs in that car park (wording, position, and clarity) do not comply and failed to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.

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). Lord Denning continued: '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.


I put LPS to strict proof regarding all of the above contentions and if they do not address any point, then it is deemed accepted.

Yours faithfully

Coupon-mad

You could add to the final point that the driver did call into the pub on an errand(!) and was not alerted to any need to pay/display or reclaim any payment made at the bar. The signage was not seen by the driver.

And this is wrong:

''9(2) The notice must—

Must be paragraph 8 not 9 (windscreen ticket).

sgtbanjo

Thanks C-M, I have made the changes.

I intend to submit this appeal on-line, am I correct in the assumption that I have to wait a certain amount of time so that LPS cannot re-issue the NTK in a more compliant form?

TIA

Coupon-mad

You don't need to wait because if the parking event was in August they'd be too late now to send a compliant version of a NTK (not that they can re-issue it anyway).

Did you make sure the para 8 numbers quoted were right (i.e. didn't just change '9' to '8')?! It needs to quote paragraph 8 then say what's not right from those sections of para 8, which might not quite correspond with the same sections in para 9. It needs to be right as a non compliant NTK is a slam-dunk win for a keeper.