Advice For Future Fines - Leased Car

Mike172

Submitted the appeal in my other thread minus point 5.

I haven't changed anything so hopefully the POPLA appeal stating £100 isnt a GPEOL when they were demanding £60 at this early stage is OK.

Is it?

Really dont want them to deny the appeal on something so small.

Mike172

What I am trying to say is:

I had to hook the PPC early by replying to the PCN as my car is leased. I never got the NTK, instead a standard rejection letter following the soft appeal - as you would normally receive following a stage 1 soft appeal to an NTK. The Rejection letter which contains the POPLA code is of course for £60 at this early stage. My part 1 popla appeal is here:

Dear POPLA Assesor,

Re ********* parking charge notice ********
POPLA ref **********

I am the registered keeper and I wish to appeal this charge on the following grounds;

1) No Genuine Pre Estimate of Loss
2) Contract with Landowner
3) Inadequate Signage
4) The alleged contravention did not occur

1) a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for being "in contravention of" and having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park without a permit was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.

b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit” consequently I contend, and the BPA code of practise states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA 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.

On the day in question, a permit had been paid for, there was no damage nor obstruction caused (nor is any being alleged) and I therefore contend there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd 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 reasonable 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

Obviously detailing £100 as the GPEOL. For the record my rejection letter with POPLA code does mention £100 when they try to provide an estimation to their losses (as being over £100), however at this early stage only the reduced amount of £60 is requested. Hope that makes sense.

Am I over thinking this?

I haven't submitted yet. Box is still open waiting.

bod1467

But the ticket was £100, discounted to £60 if paid within 14 days. If you have appealed later than 14 days then the discount was gone anyway.

If ticket says £100 then that's what they need to GPEoL against.

Mike172

Thanks bod1467

Mike172

Ticket #4

So my lease company have forwarded me a copy of a NTK dated mid November 2014 saying they have 'made representation to the parking operator advising them the vehicle is in my possession'. The letter from my lease company is from this week so they have taken their time about it.

Doesn't mention anything about admin charges and they did say over the phone there wouldn't be any.

So its looking good - except for the time period between the date the PCN was issued and the date my lease company have finally got round to informing myself of the NTK and UKCPM that I am in possession of the vehicle. Which is FYI over 60 days now.......

Going to have a read through the newbies thread now as soon as ive posted this to figure out if I can proceed as normal or if the time period is going to cause me problems.

I dont think I will wait for UKCPM to send me anything instead Ill print out the standard appeal asking for a POPLA code as I have previously done.

UKCPM are dirty !!!!ers and are obviously removing the windscreen ticket after issuing.

Mike172

Not entirely sure where I stand here?

1. I wait till UKCPM send me something in the post (assuming this will be the NTK)

2. I appeal now anyway as I have the PCN number.

Just as this is over 60 days since the windscreen PCN was issued I am not sure where I stand with this. Will they tell me to do one if I ask for a POPLA code this late? Or will the Lease company telling the UKCPM I am currently in possession of the car be their way of resetting the clock.

Might be worth adding a little something to the newbie thread where lease cars are involved at the end to describe what to do when the lease company dont respond for 2 months

God knows what else is sat waiting at the lease company HQ destined for my mailbox!

bod1467

What you will get is a notice to hirer/driver ... the NtK went to the lease company, and they have notified the PPC of your details so have discharged any liability they had. (There is no time frame for them to do this, other than up until the PPC initiates proceedings [court action] to recover the alleged debt).

Wait for that NtH/D and just appeal as normal.

Mike172

Been a week since I appealed to POPLA, had confirmation from London Councils as before, but still no one responded to say they had picked up the case like they did last time - only had the one email. Last time I had 3.

Anything to worry about???

Mike172

As mentioned in someone elses thread I have been given an invalid code. POPLA checkers show the deadline as ** Feb 2014.

Timeline of events:

PCN Windscreen ticket received: 4th Jan 15.
Soft Appeal Made almost immediately.
Rejection Letter Back with POPLA code: 8th Jan.
POPLA Appeal made: 21 Jan
POPLA Rejection: 26th Jan (Received in post today...)

Unfortunately your appeal was received more than 28 days after the rejection of your representations of the parking operator. etc etc etc

So what do I do now. I am not paying the PPC.... I know this is their fault for generating an invalid code...


e/

So I can resubmit with a 5 instead of a 4. - I have 1 week exactly to do this.

.....Or I can follow another route?

Will wait for advice from people on here before I do anything.

bod1467

You complain to the BPA about the invalid POPLA code ... just like everyone else is advised to do.