POPLA Appeal Draft

Turnip13

I received a windscreen ticket from a PPC for an overstay in a pay and display. I have sent the soft appeal which has been rejected and I have now drafted a POPLA appeal, based on the information gathered from this forum (thanks to all for that!).

Thanks.

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I am the keeper of this vehicle and this is my appeal.

On the above date, the quoted Parking Charge Notice was issued quoting “Parking longer than the period paid for”. This charge has been contested directly with PPC and rejected with a valid POPLA code.

I contest the charge and request it is dismissed on the following grounds:

1. No genuine pre-estimate of loss.

2. Lack of standing/authority from landowner to issue tickets or pursue charges in their own name at court.

3. Signage non-compliant with the BPA Code of Practice and no contract formed with driver.

4. Unreasonable & Unfair Contract Terms - a penalty that cannot be recovered.

5. No Keeper liability - the NTK is not compliant with the requirements of POFA2012.

6. Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013.

1) NO 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 possibly have been suffered by the Landowner or the Operator.

PPC must therefore be required to explain their charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so PPC have no cause of action to pursue this charge.

In my initial appeal to PPC, I stated that the £85 charge does not represent a genuine pre-estimate of loss. PPC have failed to address this in their reply to my appeal. PPC did not provide a breakdown of the costs incurred as a result of the alleged offence. This reply completely fails to demonstrate that the whole charge is a genuine pre-estimate of loss. The fact that the recommended maximum level in section 19.5 (“we would not expect this amount to be more than £100”) has not been exceeded merely means that the operator does not have to justify the amount in advance. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.

I put it to PPC to prove that a loss has occurred at the time that this charge was levied and PPC 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, such that the charge is a genuine pre-estimate of loss.

If PPC claim that the charge is 'commercially justified' and cite Parking Eye v Beavis & Wardley', I put forth that such a claim is irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

My case is the same and PPC contract with The Landowner of ******** is nothing like Parking Eye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, PPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2) LACK OF STANDING/AUTHORITY FROM LANDOWNER TO ISSUE TICKETS OR PURSUE CHARGES IN THEIR OWN NAME AT COURT

PPC have no proprietary interest in the land concerned and have not provided a copy of the contract with the landowner in which authority to pursue outstanding parking charges is set out in section 7.2 paragraph (f): “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that PPC do not have the legal capacity to enforce such a charge.

I require the unredacted landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect PPC are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable PPC to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” or site agreements instead of the relevant contract, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent.. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.

3) SIGNAGE NON COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO CONTRACT FORMED WITH DRIVER

Local Parking Security state in their rejection email to me that,
“The Unfair Consumer Contract Regulations only applies if the car park does not have clear signs detailing the regulations and charges. Our car parks are clearly signed and explain the charges that apply should the car park regulations not be followed. The legal basis of the Excess Charge Notice is based on the contract entered by drivers who park on private land. The terms and conditions upon which the contract is based is clearly stated on all signage located throughout the car park. When parking on private land the motorist freely enters into an agreement to abide by the conditions for parking in return for permission to park, it is the motorists responsibility to ensure they abide by any clearly displayed conditions for parking.”
Upon receiving the Parking Charge Notice, I, as keeper of the vehicle, have since visited the site and argue the following :

3.1) I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because PPC are a mere agent and the poor placement of their signs means that they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) PPC have no signage with full terms which could ever be read at eye level, for a driver in moving traffic on arrival.

The signs on one entrance are too small and low down (Fig.1 below) and these cannot be read by a driver in their vehicle entering the car park. There is no mention of terms and conditions on any signage at this entrance. Stopping the vehicle before entering the car park to get out and read these is completely infeasible as this would cause an obstruction on a public highway and block the entrance to the car park.

Fig.1


The other entrance to the car park actually states that “You are now leaving the pay & display car park” (Fig.2 below). On my visit to the site as the keeper of the vehicle, it took me some time to determine that this actually relates to a council car park which appears to merge with the private car park. This arrangement is extremely confusing, with no clear boundary. It would be unreasonable to expect a driver to understand any alleged terms and conditions (of which there are no mention), or the consequences of any breach.

Furthermore, PPC's entrance sign at this location is tiny. The entrance sign does not state that the car park is managed and does not state that there are terms and conditions which the driver must be aware of. None of the required logos are present. The entrance sign does not meet minimum general principles and is not in a standard format. The size of the sign does not take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance.

Fig.2


Additionally, Section 18.3 of the BPA Code of Practice states that specific parking-terms signage must be conspicuous and legible, so that they are easy to see, read and understand. I have attached photographic evidence (Fig.3 below) which clearly contravenes this. The sign is located high up on a pole, away from the car park and is significantly obscured by shrubbery.
Fig.3


Due to the many shortcomings, no alleged contract can reasonably be claimed to have been formed from any of these signs.

3.2) A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. In this case, the driver did not see any sign, thus, there was no consideration/acceptance and no contract agreed between the parties.

As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

PPC needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.

4. UNREASONABLE & UNFAIR CONTRACT TERMS - A PENALTY THAT CANNOT BE RECOVERED

The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, 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.’

Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''

From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
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, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore 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.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss.

5) NO KEEPER LIABILITY - THE NTK IS NOT COMPLIANT WITH THE 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. PPC can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As PPC have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.
Specific omissions from the NTK received from PPC are as follows:

- The 'period of parking' is not 'specified', only the time of issue of an alleged PCN.
- 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.
- It does not state that the creditor does not know both the name of the driver and a current address for service for the driver.
- It does not inform the keeper of any discount offered for prompt payment.
- 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.
- It does not identify the creditor, who could be the landowner or another party, and specify how and to whom payment or notification to the creditor may be made. 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
- It 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'.

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:

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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:

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''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:

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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.

This concludes my appeal, I respectfully request that my appeal be upheld and the charge be dismissed if PPC Ltd fail to address and provide the necessary evidence as requested in the points highlighted above.

Coupon-mad

Yep that'll win!

Turnip13

Coupon-mad wrote: »

Yep that'll win!

Thanks for looking over it. Wouldn't have had a clue without the help on here. Just before I submit the appeal, would you advise attaching the NTK as evidence, or would it be best leaving that responsibility with the PPC?

Coupon-mad

No need, not for a POPLA appeal. It's up to the PPC to supply it.