UK CPM - PCN and next Steps - Farnborough Village

bod1467

A POPLA appeal by definition means that the appeal to PPC has failed.

A POPLA appeal has nothing to do with mitigation (what happened) and is made purely on legal points (Not a GPEOL, No standing, etc.)

The_Slithy_Tove

oldcodger1 wrote: »

Half_Way - Yes tried the hotel route, they have no interest and devolve to the 'no control over it as contracted service'

If I visited the hotel and found their toilets were disgustingly dirty, and complained, would they say "that's down to out cleaning contractir, so it's nothing to do with us"? This is no different. THEY are responsible (even liable) for the actions of their contractors. Ask the manager if they stand "in front" of their contractors or "behind" them?

Coupon-mad

oldcodger1 wrote: »

Ho hum, onto the next stage, although the question I have is thus, is the appeal to popla couched in the terms of appealing the lost appeal to the parking operator ? or is it a fresh appeal' that ignores the rejection ?

It's a fresh contract law argument, about no GPEOL/no standing, etc,. like you see in the examples in the NEWBIES thread post #3 'How to win at POPLA'. It ignores 'what happened' except for the solid point about the driver being expected to see a BLACK UNLIT SIGN in the dark (enjoy writing that part!) and telling POPLA (and complaining separately to the BPA) about the fact they have hidden the POPLA code without explanation as a reference, giving no clue what it is or how to appeal.

And whilst that point won't be the POPLA winning point, it is a sanctionable breach of the BPA code. You MUST drop them in it with the BPA as well as doing a solid POPLA appeal.

BenefitMaster

Codger - can you PM me with the hotel location, my man will go get me a ticket.

oldcodger1

Onto the final stage (hopefully). Below is draft of my appeal to POPLA, a little wordy for my liking but based on others that were successful so dont want to risk taking stuff out

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
5) Breach of POPLA process

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

As stated on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to appeal it states 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. 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 would also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where appellants raise similar arguments.

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 Disabled Badge” consequently I contend, and the BPA code of practice 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.

The car park is a free car park with no mechanism or demand for payment to park, 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 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 as this is a free car park and no sum is due to either the Operator or 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 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.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

3) Inadequate Signage

The signage is not legible so no valid contract can be formed between CPM and the driver. The signage is :

a) Placed approx. 2.75m up a post with small font text rendering it unreadable and not within eye line of any average person.
b) Is ostensibly a black sign and unlit rendering it unreadable in anything other than clear daytime conditions – at the time of alleged breach it was dark and the sign unreadable, as shown in photos taken by the Operator at the time and submitted in the rejection of the appeal.

The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that being inconspicuous, unable to be read due to height, design, positioning, lighting, font size used and being unlit in the dark, breaches this code.

I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

I have taken photographs myself for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.

4) The alleged contravention did not occur.

Upon examination of the sign it states ‘Blue Badge Holders only within marked disabled bays’. It is quite clearly NOT an explicit term of parking on the signage that a badge holder has to display a badge in any form or fashion and the alleged contravention as stated in the Notice to Keeper is that of ‘Parking in Disabled Bay without clearly displaying a Valid Disabled Badge’

I contest that this shows that the contravention as described did not and could not have occurred and as such no damages can flow and if CPM are unable to rebut my challenge then I submit that my assertion that the contravention did not take place is upheld.

5) Breach of POPLA process

The Operator rejection letter of the initial direct appeal failed to adhere to direction from the November 2013 POPLA newsletter (found at hxxx://xxx.popla.org.uk/Newsletters.htm) by not clearly stating how to appeal and not including a clear reference and explanation of the POPLA appeal code, which was only included alongside general references at the head of the letter , specifically this was directed against by POPLA.

“Failure by an operator to provide a verification code in their rejection letter is a breach of the Code of Practice, sanctionable by the BPA.

Rather than just a reference, the verification code should be clearly identifiable as such, for example:

Your verification code, which you will need to appeal to POPLA, is XXXXXXXXXX.

Even if the verification code is automatically printed on an enclosed appeal form, it must still be in the dated rejection notice/letter. If it is not, and if the issue arises, it may then be difficult for the operator to show exactly when the verification code was provided to an appellant.”


This concludes my appeal which I respectfully request is upheld

Regards





XXXXXXXX

Coupon-mad

Yes that's fine, maybe prune the wordy bits out though. I would remove this:


' 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 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.'




P.S. what about 'no keeper liability due to non-compliance with paragraph 8 of the POFA' (pointing out the failings of the NTK)? Several examples of that, maybe search for UKCPM POPLA as a keyword search and find some previous ones from this year...bound to be one pointing out the NTK flaws.

oldcodger1

Ammended as per your suggestion - thanks

Also added in a section on notice to keeper

5) Notice To Keeper - no keeper liability

The notice to keeper fails to adhere to POFA in a number of respects and therefore can not pass liability to the keeper.

a) The NTK fails to identify the 'creditor'. It could be 'UKCPM' , ‘CPM’ , ‘UK Car Park Management Ltd’ or the landlord – (Potentially 'The Devere Group’) – all of which are mentioned on signs/NTK/Notices, leading to uncertainty about who the creditor might be.

Alternatively, the creditor could be the owner or lessee of the land, or a managing agent or CPM's client, or another party. It is not for me to guess who the creditor is.

b) Omission of any mention relating to 'period of parking' breaching POFA 2012

c) Fails to repeat all details from the PCN. Omitting wording from paragraph 8 of Schedule 4 fails to create a complaint Notice to Keeper

Coupon-mad

That'll do I reckon, except for one typo which always happens to me:


''Omitting wording from paragraph 8 of Schedule 4 fails to create a compliant Notice to Keeper''

oldcodger1

Coupon-mad - thanks for the read and correct (I would not have spotted)

So I submitted appeal form today (online) but the question is should I submit any of the photo evidence of the sign ? (showing white on black and unlit ) ? or wait to rebut ?

Cheers

Umkomaas

oldcodger1 wrote: »

Coupon-mad - thanks for the read and correct (I would not have spotted)

So I submitted appeal form today (online) but the question is should I submit any of the photo evidence of the sign ? (showing white on black and unlit ) ? or wait to rebut ?

Cheers

Up to you really, but as you've already raised the signage issue in your appeal, the PPC is required to respond to that, with photos and plans of signage distribution on site to defend itself against your appeal.

My preference would be to keep the photos up your sleeve, for use in rebuttal should The PPC provide more advantageous (to them) photos from another site or an in-house library archive.