Draft POPLA appeal

sgtbanjo

Thanks - I will re-check the paragraph and post here before I submit the appeal. Thanks for all your help.

sgtbanjo

My third attempt. POFA is now from the correct section I hope?

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 un-redacted 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:
''8(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, 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, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;''
Where paragraph 8 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 any ticket displayed, 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 did call into the adjacent 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.
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

I would put even more to explain the POFA flaws (I am guessing with some if this so please double check the NTK carefully yourself - yes I know it has a 'time of issue' of PCN but that's not a period of parking!):




Where paragraph 8 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 any ticket displayed, was an incorrect fee paid?

The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:
(A) The 'period of parking' is not 'specified', only the time of issue of an alleged PCN.
(B) It does not 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) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a PCN and NTK describe the 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the time of issue of the PCN. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the time of issue of the PCN because it only arises, if at all, at/after the time of issue of the PCN. The PCN amount should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff to be stated..
(D) It does not identify the creditor, who could be the landowner or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are not the creditor.
(E) 8(2)(g) is not met as the NTK fails to show the arrangements for complaints and the address of the client/landowner, since this Operator is an agent (see my appeal point about the new Consumer Regulations which make this a requirement of any consumer contract from an agent of another trader).

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A 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 prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.






Oh yes, and as you've cancelled the Contract (in the first appeal letter you sent) you could add this:




Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013
It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that almost all UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations:

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).
In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.

For example, renting a parking space...is subject to the Directive. ''

This contract certainly purports to offer the 'rental' of/use of a parking space:
http://www.thefreedictionary.com/rent
RENT - 1. a. Payment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another. b. A similar payment made for the use of a facility, equipment, or service provided by another.

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all).

Information breaches of these Regulations:
This Operator has failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect off paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''

Everything that is required by this statute has been omitted, including no information given about the right to withdraw. There is no exemption from this even for distance contracts with limited space or time, so in my first appeal I have already served this operator with my Notice of cancellation which they have acknowledged receipt of, by virtue of their reply. Even if this is not considered to be a 'distance contract' the Regulations set out that all Consumer Contracts (except 'exempt' ones which parking contracts are not) require certain information including the geographical address and phone number of the trader and the geographical address and phone number of the principal, for complaints, where a trader is an agent. This statutory information was missing and it was not served in a durable medium beforehand, so the contract breaches the above statutory regulations and also breaches the POFA 2012 in terms of paragraph 8(2)(g) - ''inform the keeper of...the arrangements for the resolution of disputes or complaints that are available''. In view of these new regulations, the 'arrangement for resolution of complaints' is no longer just details of the Operator's own appeals procedure and POPLA. A contract from a trader who is an agent of a landowner (as here) is now specifically required to show the arrangements and geographical address for complaints to the landowner client, too.

sgtbanjo

Wow, that's some lengthy reading! I shall fit this into the appeal. I really appreciate the time you're spending on this with me :beer:

sgtbanjo

Ok - Here it is!

Hopefully I've put the new info in the correct places and it all reads well. I've also learnt quite a lot about contracts whilst doing this :-)



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 un-redacted 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:

''8(2)The notice must—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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)state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f);
(d)if the unpaid parking charges specified in that notice to driver as required by paragraph 7(2)(c) have been paid in part, specify the amount that remains unpaid, as at a time which is—
(i)specified in the notice to keeper, 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, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (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;
(g)inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available;
(h)identify the creditor and specify how and to whom payment or notification to the creditor may be made;''

Where paragraph 8 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 any ticket displayed, was an incorrect fee paid?

The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012:

(A) The 'period of parking' is not 'specified', only the time of issue of an alleged PCN.
(B) It does not 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) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a PCN and NTK describe the 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the time of issue of the PCN. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the time of issue of the PCN because it only arises, if at all, at/after the time of issue of the PCN. The PCN amount should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff to be stated.
(D) It does not identify the creditor, who could be the landowner or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are not the creditor.
(E) 8(2)(g) is not met as the NTK fails to show the arrangements for complaints and the address of the client/landowner, since this Operator is an agent (see my appeal point about the new Consumer Regulations which make this a requirement of any consumer contract from an agent of another trader).

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A 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 prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means 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 did call into the adjacent 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.

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.’

6. Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013
It is the will of Parliament, following the recent EU Directives on Consumer Contracts, that almost all UK consumer contracts are now unified in terms of what is required by way of information before the contract is concluded. Also contracts must be 'expressly agreed' so a contract based merely on implied consent from a sign, fails the new statutory regulations:

http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf

These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer).

In the UK Regulations:
* “service contract” means a contract, other than a sales contract, under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''

From the EU Guidance behind the Directive upon which the UK Law is based:

http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf

''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.
For example, renting a parking space...is subject to the Directive. ''

This contract certainly purports to offer the 'rental' of/use of a parking space:

http://www.thefreedictionary.com/rent
RENT - 1. a. Payment, usually of an amount fixed by contract, made by a tenant at specified intervals in return for the right to occupy or use the property of another. b. A similar payment made for the use of a facility, equipment, or service provided by another.

Part 4 of these Regulations has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed at all).

Information breaches of these Regulations:
This Operator has failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract
''13.—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect off paragraph (g), (h) or (m) of Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.''
Everything that is required by this statute has been omitted, including no information given about the right to withdraw. There is no exemption from this even for distance contracts with limited space or time, so in my first appeal I have already served this operator with my Notice of cancellation which they have acknowledged receipt of, by virtue of their reply. Even if this is not considered to be a 'distance contract' the Regulations set out that all Consumer Contracts (except 'exempt' ones which parking contracts are not) require certain information including the geographical address and phone number of the trader and the geographical address and phone number of the principal, for complaints, where a trader is an agent. This statutory information was missing and it was not served in a durable medium beforehand, so the contract breaches the above statutory regulations and also breaches the POFA 2012 in terms of paragraph 8(2)(g) - ''inform the keeper of...the arrangements for the resolution of disputes or complaints that are available''. In view of these new regulations, the 'arrangement for resolution of complaints' is no longer just details of the Operator's own appeals procedure and POPLA. A contract from a trader who is an agent of a landowner (as here) is now specifically required to show the arrangements and geographical address for complaints to the landowner client, too.

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

Go for it!

sgtbanjo

Submitted!

sgtbanjo

Another win at POPLA. Thanks to all who helped and especially C-M who seems to have infinite helpful suggestions.


The Operator issued parking charge notice number ####### arising out
of the presence at The XXXXX XXXX Inn, on 27 August 2014, of a vehicle
with registration mark XXXXXXX.

The Appellant appealed against liability for the parking charge.

The Assessor has considered the evidence of both parties and has
determined that the appeal be allowed.

The Assessor’s reasons are as set out.

The Operator should now cancel the parking charge notice forthwith.



Reasons for the Assessor’s Determination

On 27 August 2014 the Operator’s employee issued a parking charge notice
to a vehicle with registration mark XXXXXXX. The Operator’s employee
recorded that the vehicle was parked without displaying a valid pay and
display ticket.

The Appellant has at no point admitted to being the driver of the vehicle and
no evidence of this has been provided. Therefore in order for the Appellant to
be liable for the charge the keeper liability requirements of Schedule 4 of the
Protection of Freedoms Act 2012 must be complied with.

In order for the Operator to be able to recover unpaid charges from the
registered keeper, four conditions must be met:

1) The first condition is that the Operator has the right to enforce against the
driver of the vehicle the requirement to pay the unpaid charges, and the
Operator does not know the name and address of the driver.

In this case, it appears the driver of the vehicle parked without displaying a
valid pay and display ticket, and that the Operator does not know the name
and address of the driver. Accordingly, I find that the first condition is met.

2) The second condition is that: either a notice to driver in accordance with
paragraph 7 of the schedule, followed by a notice to keeper in accordance
with paragraph 8 is given; or, a notice to keeper in accordance with
paragraph 9 is given.

The Operator has produced a copy of the notice to driver which was
attached to the Appellant’s vehicle. Accordingly this notice to keeper must
meet the requirements set out in paragraphs 7 and 8.

As keeper liability is statutory, it is for the Operator to produce evidence that
all of the requirements laid out in the Act have ben met. Accordingly, copies
of all Notices relied on must be produced.

In this case, the Operator has failed to produce evidence of the Notice to
Keeper relied on, and so I am unable to find that the requirements laid out in
paragraph 8 of the Schedule have been met. Consequently, I must find that
the Operator has failed to show that the Appellant is liable as the keeper of
the vehicle.

The Operator has not produced any evidence to demonstrate that the
Appellant was the driver of the car and so has not produced any evidence to
show that he is liable for the parking charge as either the driver or registered
keeper.

Accordingly, I must allow the appeal.

Nadesh Karunairetnam
Assessor

Coupon-mad

Won on the lengthy argument about the NTK flaws/no keeper liability - because the silly PPC didn't show the document (didn't dare?).