We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
The Forum now has a brand new text editor, adding a bunch of handy features to use when creating posts. Read more in our how-to guide
Popla appeal review please
garricw
Posts: 27 Forumite
Hi all, I got a windscreen notice a week ago. I paid some money but I was held up and did not remove my vehicle before the ticket expired. I stupidly didn't wait for the NTK to arrive and appealed. I did not identify myself as the driver and gave no hints as of how I would draft the popla letter. Below is the letter that I found and tailored to my case and wondering if any of you lovely people could take a look before I submit it please? Thanks guys
"POPLA CODE «POPLA_Code»
As the registered keeper of the vehicle, registration number xxxxxx at the time of the incident, I wish to appeal against the parking charge issued by F1rst Parking LLP.
My appeal is based on the following grounds.
1. No breach of contract and no genuine pre-estimate of loss.
2. Contract with the landowner – no locus standi.
3. Unclear and non-compliant signage, forming no contract with drivers.
To expand on these points:
1. No breach of contract and no genuine pre-estimate of loss
The parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.
I require F1rst Parking LLP to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’.F1rst Parking LLP cannot lawfully include their operational day to day running costs (e.g. provision of signs and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.
According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner charges a maximum of £6 for the area in question, this is the maximum loss they would be entitled to claim. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge as it cannot be used to state a loss where none exists.''
In ParkingEye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
Also in the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”. My case is the same and I respectfully request my case is upheld and the charge is dismissed.
2. Contract with landowner - no locus standi
F1rst Parking LLP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.
In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between F1rst Parking LLP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): (link).
In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'
I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. F1rst Parking LLP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.
3. Unclear and non-compliant signage, forming no contract with drivers.
Due to their position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that F1rst Parking LLP are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.
Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed."
Many thanks.
"POPLA CODE «POPLA_Code»
As the registered keeper of the vehicle, registration number xxxxxx at the time of the incident, I wish to appeal against the parking charge issued by F1rst Parking LLP.
My appeal is based on the following grounds.
1. No breach of contract and no genuine pre-estimate of loss.
2. Contract with the landowner – no locus standi.
3. Unclear and non-compliant signage, forming no contract with drivers.
To expand on these points:
1. No breach of contract and no genuine pre-estimate of loss
The parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.
I require F1rst Parking LLP to submit a full breakdown of how these losses are calculated in this particular car park and for this particular ‘contravention’.F1rst Parking LLP cannot lawfully include their operational day to day running costs (e.g. provision of signs and parking enforcement) in any ‘loss’ claimed. Not only are those costs tax deductible, but were no breaches to occur in that car park, the cost of parking 'enforcement ' would still remain the same.
According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner charges a maximum of £6 for the area in question, this is the maximum loss they would be entitled to claim. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge as it cannot be used to state a loss where none exists.''
In ParkingEye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
Also in the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”. My case is the same and I respectfully request my case is upheld and the charge is dismissed.
2. Contract with landowner - no locus standi
F1rst Parking LLP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.
In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.
So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between F1rst Parking LLP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): (link).
In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'
I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. F1rst Parking LLP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.
3. Unclear and non-compliant signage, forming no contract with drivers.
Due to their position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that F1rst Parking LLP are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.
Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed."
Many thanks.
0
Comments
-
You need to expand the No GPEOL part. Add this...
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 F1rst Parking LLP 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 F1rst Parking LLP Notice to Driver 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 about 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.''0 -
Thanks ezerscrooge I have added it now. I appealed 5 times in the past and the first 4 to popla were granted automatically since they didn't even bother to provide evidence. The 5th one they just didn't even bother to chase up. So I hope this time it would be the same. Thanks again
0 -
A well seasoned appealer then. Glad you came here though, the appeal templates keep getting updated to reflect the changes needed in the appeal wording.
POPLA seem to have a couple of duff assessors at the moment, so it looks like C-M has altered the appeal templates to guide them in what their job is about and how they should be going about it.0 -
I wouldn't rush the POPLA appeal. I would time it to be sent to POPLA online, just before the POPLA appeal code expires (check the Parking Cowboys POPLA code checker and diarise it).
I would add an appeal point that the Notice to Driver which was passed to you as keeper of the car, does not comply with paragraph 8 of schedule 4 of the POFA and that F1rst have not followed it with a compliant Notice to Keeper - so there is no keeper liability.
To make that point work (and it's a winning point) you MUST delay the POPLA appeal until close to the expiry of the code! The point being the POPLA appeal will then take about 6 weeks and if F1rst don't serve any NTK to you in the meantime (because they are stupid like most PPCs) that point then becomes a fact by the time the Assessor reads it. As you will then be past day 57 after the parking event date! You could even diarise day 57 and email POPLA an update to add to your appeal to confirm no NTK was received in time and they are now too late to serve one, and so in a case where there have been no admissions as to who the driver was this means they have failed to establish keeper liability - the POFA makes no allowance for not sending a NTK just because 'someone' has appealed. The only reason a PPC has not to issue a NTK is if they know who was driving.
And while you are waiting, read paragraph 8 and spot the omissions in the NTD. There will be several omissions IMHO and I can guess they will include 'no creditor identified' and 'no unpaid parking charge specified which was UNPAID before the issue of the PCN' (i.e. the tariff due, not the parking charge added after the breach). Possibly also no period of parking...PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
thank you C-M. I shall wait 28 days next time i get it and add the paragraph 8 points in my appeal. 0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 354.4K Banking & Borrowing
- 254.4K Reduce Debt & Boost Income
- 455.4K Spending & Discounts
- 247.3K Work, Benefits & Business
- 604K Mortgages, Homes & Bills
- 178.4K Life & Family
- 261.5K Travel & Transport
- 1.5M Hobbies & Leisure
- 16K Discuss & Feedback
- 37.7K Read-Only Boards