Appeal to popla

Susy62 · 30 October 2014 at 12:49PM

Good morning all.

I have copied my appeal letter that I intend to send to POPLA.

Can someone please cast an eye over it to see if it looks ok or if I should change or add anything.

One of my main concerns is in respect of the inclusion of the GPEOL calculations being submitted earlier in 2014 and UKPC having changed them. This is unlikely to be factual given I changed CP Plus to UKPC as this was the appeal I liked the best. I have removed many para's that I did not deem applicable, should I remove these also?

Regards

Re: UK PARKING CONTROL LTD PCN,reference code XXXXXXXXXXXXXXXXXXX
POPLA Code: XXXXXXXXXXXXXXX

Dear sirs

As the registered keeper, I received an invoice from UKPC about a McDonald’sfast food restaurant. I appeal on the following grounds:

1. The charge is not a genuine pre-estimate of loss.
2. No standing/authority to pursue charges in the courts - UKPC is a mere agentwith negative responsibility for customers on this MSA private land.
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012(the POFA).
4. Unclear and non-compliant signage created no contract with the driver. Nosigns seen except the clear offer of free parking on the MSA approachadvertisement.
5. The ANPR records are unreliable, non-compliant and not proof of oneparking event.

1. The charge and is nota genuine pre-estimate of loss.
The site in question is a free site with no parking charges, as such there isno genuine loss suffered by exceeding the limit of 1.5 hours. If UKPC arealleging that an overstay gives rise to a loss then the £2.50 to obtain datafrom the DVLA would be the only sum that an Operator can potentially claim as atypical sum of the heads of cost that arise in all cases. And that wouldonly be possible if the driver has been fully informed of that sum, on veryclear notices, in advance of parking. This was not the case.

£100 is a sum 'plucked out of the air' by UKPC and it bears no relationto any loss. My proposition is that £100 was chosen because it happens to bethe maximum figure the BPA feel is a 'tolerable' amount to impose on motorists,when compared to PCNs issued by Councils on street. There is no validcomparison with a private firm alleging 'breach' in order to maximise their ownprofits and a real PCN from a Council - but the BPA admitted to the Governmentthat Council PCN amounts were the basis of that figure.

I believe that (in common with many PPCs after the recent BPA training or bycopying PPS who have won a couple of anomalous POPLA decisions) as is alreadyin the public domain here:

UKPC have significantly changed their GPEOL calculations from theversion presented to POPLA earlier in 2014. I require UKPC to explain their newcalculations. My position is that, any 'new' version cannot be accepted as a genuinePRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actualcosts' after the event; figures totted up to match the charge, including fully-countedman-hours for 'POPLA appeal work' when in fact only 2% of PCNs proceed toPOPLA. As this is supposed to be a pre-estimate showing why every PCN is£100 (whether appealed or not), any man-hours must be counted only on a minimalpro-rata basis, i.e. they might reasonably count only 2% of the time taken onan average POPLA appeal, since the vast majority of cases involve no appealwork at all.

Indeed, in the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade,stated, “However, genuine pre-estimate of loss means just that. It is anestimate of the loss which might reasonably be suffered, made before the breachoccurred, rather than a calculation of the actual loss suffered madeafterwards."

If UKPC present what they describe as a GPEOL statement I require them to showdocumentary evidence regarding exactly when this 'pre-estimate of loss' wasdiscussed with McDonalds or at any substantive meeting within the Operator'sSenior Management. How/when were these calculations made and on what basis?Bearing in mind how many of their cases actually go to POPLA, what steps weretaken to account for the 98% which do not? I put UKPC to strict proof that theyever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then therewas never a pre-estimate of loss discussion at all, as was found inApril 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, whereby HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at agenuine pre-estimate of loss. I have found that there was no meeting in2007...it seems to me that a conclusion that there was never any attempt at agenuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might beprepared to tolerate...shows to my mind that in so far as the Claimant made anycalculation as to amount, that calculation related to the balance betweendeterring breach and enforcing the notice period on the one hand and deterringrecruitment on the other. In short, the sumstipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is apenalty.''

A direct comparison can be drawn with Brookfield v Van Boekelthat, so far as UKPC made any calculation as to amount, thatcalculation related to the balance between deterring breach and enforcement on the one hand and deterring customers of the MSA on the other. £100 was simply the maximum set by theBPA, a sum which motorists might 'tolerate'.

UKPC have now added layers of 'staffchecks' to match the PCN sum, in the hope that POPLA may not notice that 'timespent on POPLA appeals' cannot be factored into every PCN. In fact they have manufactured their calculationswell after the event of deciding the parking charges, knowing that mostappellants will not realise that their 'GPEOL calculation' has changed.

I contend that the figure of £100 is apenalty clause in terrorem to deter breach. The calculation cannot be copiedfrom another PPC, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commerciallyjustified. In each case that I have seen from the higher courts, includingthose presented here by the Operator, it is made clear that a charge cannot becommercially justified where the dominant purpose of the charge is to deter theother party from breach. This is most clearly stated in Lordsvale Finance Plc vZambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of BesFilmcilik Ve Yapimcilik & Anor v United International Pictures & Ors[2003] EWHC Civ 1669 when Coleman J states a clause should not be struck downas a penalty, “if the increase could in the circumstances be explained ascommercially justifiable, provided always that its dominant purpose was not todeter the other party from breach”. This supports the principle that the aim ofdamages is to be compensatory, beginning with the idea that the aim is to putthe parties in the position they would have been in had the contract beenperformed. It also seems that courts have been unwilling to allow clauses designedto deter breach as this undermines the binding nature of the initial promisemade. Whilst the courts have reasonably moved away from a strict interpretationof what constitutes a genuine pre-estimate of loss, recognising that in complexcommercial situations an accurate pre-estimate will not always be possible,nevertheless it remains that a charge for damages must be compensatory innature rather than punitive.''

2. No standing/authority to pursue charges in thecourts – UKPC is a mere agent with negative responsibility for customers onthis private land.
This Operator has no proprietary interest in the land, so they have no standingto make contracts with drivers in their own right, nor to pursue charges forbreach in their own name. I contend that they merely hold a bare licence tosupply and maintain (non compliant) signs and to post out 'tickets' as adeterrent. As a commercial site agent acting under an agency agreement 'onbehalf of' the named principal (McDonalds), UKPC has negative responsibilityand no automatic standing nor authority in their own right which would meet thestrict requirements of section 7 of the BPA CoP.

I put UKPC to strict proof to provide an unredacted, contemporaneous copy ofthe contract with McDonalds, which - to demonstrate standing and authority -must specifically state that UKPC can make contracts with drivers themselvesand that they have full authority to pursue charges in court in their own name.A witness statement to the effect that a contract is in place will notbe sufficient because it will not show which restrictions are to be enforced,what the times/dates/details of enforcement are. How will I know that thelandholder contract allows UKPC to charge £100 for this particular contraventionif the contract is not produced? Showing a piece of paper signed by someone whohas never seen the actual contract, saying merely that UKPC can put up signsand 'issue parking charges' would not prove that this charge is within thecontract nor will it show any standing of this site agent.

3. Failure to invoke Keeper Liability under the Protection of Freedoms Act2012 (the POFA).
In order to pursue Keeper Liability under the POFA, UKPC must have metthe strict conditions in the Act. However, they have failed to fulfil therequirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Actwhich reads in part:

“(1) A notice which is to be relied on as a notice to keeper for the purposesof paragraph 6(1)(b) is given in accordance with this paragraph if thefollowing requirements are met.
(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges inrespect of the specified period of parking and that the parking charges havenot been paid in full;
(e) state that the creditor does not know both the name of the driver and acurrent 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 ofthe name of the driver and a current address for service for the driver and topass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the dayafter that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (d) hasnot been paid in full, and
(ii) the creditor does not know both the name of the driver and a currentaddress for service for the driver,
the creditor will (if all the applicable conditions under this Schedule aremet) have the right to recover from the keeper so much of that amount asremains unpaid;
(h) identify the creditor and specify how and to whom payment or notificationto the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so thatit is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of14 days beginning with the day after that on which the specified period ofparking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, tohave been delivered (and so “given” for the purposes of sub-paragraph (4)) onthe second working day after the day on which it is posted; and for thispurpose “working day” means any day other than a Saturday, Sunday or a publicholiday in England and Wales.”

The NTK fails due to the following reasons:
• In their NtK they have failed to “inform the keeper that the driver isrequired to pay parking charges”; it only states that payment was not received,however it does not state that the driver (rather than the Registered Keeper)is required to pay the charge. Thus the Operator has failed to comply withpara.9(2)(b).
• They have failed to inform me that the creditor “does not know both the nameof the driver and a current address for service for the driver”. Thus theOperator has failed to comply with para.9(2)(e).
• They have failed to warn me that, if the charge is not paid in full within 28days, and the creditor does not know both the name of the driver and a currentaddress for service for the driver, the creditor will (if all the applicableconditions under the Schedule are met) have the right to recover from thekeeper so much of that amount as remains unpaid. Thus the Operator has failedto comply with para.9(2)(f).
• They have failed to identify the creditor as in para.9(2)(h).
• They have failed to serve their NtK within the time limit; it was actuallyreceived later than day 15 so it fails to comply with para.9(4)(b).

So, UKPC cannot invoke keeper liability. In this case the driver has not beenidentified so the charge has no legal basis to be enforced against me.

4. Unclear and Non-compliant signage which created no contract with thedriver, who did not see any signs.

Unless signs are seen and understood before parking, they are notimported into any contract. In a free car park, where the Operator does not ownthe land (the named principal being the only party capable of offering thespaces and other amenities in the facility), there is no possibility of acontract, since no consideration can flow between a driver and a site agent. Nomoney/offer/promise/permit or any other tangible nor implied nor executoryconsideration was capable of being exchanged with UKPC in this case.

I have recently driven this same route to check signage and the UKPC sign islocated at the back of the site at the entrance to the drive through. The driver, if having parkedat the front of the site would have not necessarily seen the sign as they donot need to walk past the signage to enter the restaurant.

No reasonable person would have accepted such onerous parking terms and Icontend the extortionate charge was not 'drawn to his attention in the mostexplicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound bythose terms as long as they are sufficiently brought to his notice beforehand,but not otherwise. In {ticket cases of former times} the issue...was regardedas an offer by the company. That theory was, of course, a fiction. No customerin a thousand ever read the conditions. In order to give sufficient notice, itwould need to be printed in red ink with a red hand pointing to it - or somethingequally startling.'

5. ANPR records are unreliable and not proof of one parking event.
The charge is founded entirely on two photos of my vehicle entering/leaving thecar park at specific times. I put UKPC to strict proof that their ANPR systemis not fundamentally flawed because of known issues such as missing checks andmaintenance of the timer/cameras and the possibility of two visits beingrecorded as one. The Operator's proof must show checks relating to my case/myvehicle, not vague statements about any maintenance checks carried out at othertimes.

The 'two visits recorded as one' problem is very common and is evenmentioned on the BPA website as a known issue:

The BPA says: ''As with all new technology,there are issues associated with its use:
Repeat users of a car park inside a 24 hour period sometimes find that theirfirst entry is paired with their last exit, resulting in an ‘overstay’.Operators are becoming aware of this and should now be checking all ANPRtransactions to ensure that this does not occur.''

Given the fact that thisis a fast food restaurant there is a distinct possibility that this could havebeen two visits and UKPC should provide evidence thatthe vehicle in question was indeed parked up for the period of time in questionin one stay.

Since I am merely the registered keeper, I have no evidence to discount theabove possibilities. UKPC show no parking photographs so they cannot sayfor certain that the car did not leave and return within the time stated on thePCN, so I put UKPC to strict proof of actual parking for over 1.5 hours inone visit.

I agree with the BPA that this ANPR technology has issues associated with itsuse. These also include (but are not limited to) synchronisation errors,buffering, faults with the timer, faults with one or other of the cameras,faults with the wireless signals and differences between the settings of thein/out clocks. The operator uses WIFI with an inherent delay through buffering,so "live" is not really "live". Hence without asynchronised time stamp there is no evidence that the image is ever accurate tothe minute.

In addition, the BPA CoP contains the following in paragraph 21:
''You may use ANPR camera technology to manage, control and enforce parkingin private car parks, as long as you do this in a reasonable, consistent andtransparent manner. Your signs at the car park must tell drivers that you areusing this technology and what you will use the data captured by ANPR camerasfor.''
UKPC fail to operate the system in a 'reasonable, consistent andtransparent manner'. They place signs far too high to see on arrival and theseare not lit, so there is no opportunity for drivers in moving traffic at theentrance to be 'informed that this technology is in use and what the Operatorwill use the data captured by ANPR cameras for'. I contend that as well asbeing unreliable, this is a non-compliant ANPR system being merely a secrethigh-up spy camera - far from 'transparent' - unreasonably 'farming' the datafrom moving vehicles at the entrance & exit and neither 'managing,enforcing nor controlling parking' since the cameras are not concerned with anyaspect of the actual parking spaces, nor any parking event at all.

Based onthe above I request that my appeal is allowed.

Yours faithfully,

XXXXXXX