Jas successful appeal

littlemissforgetful

Hi all, just wanted to let you know that thanks to all your help I've had a successful appeal notice today :-)






I've attached the appeal letter, rebuttal letter and their final response for reference by anyone if you need it.


Thank you thank you thank you to everyone onthese forums for your help.

littlemissforgetful

Appeal letter:


I am the Registered Keeper of the above vehicle and I am appealing against the above charge. I contend that I am not liable for the parking charge on the following grounds and would ask that they are all considered.

• The Charge is not a genuine pre-estimate of loss
  The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.
  
  This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and without it costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach.
  
  JAS when rejecting my appeal stated that the cost had been estimated on the cost of the staff issuing the parking charge notice (e.g. salary, equipment, stationary, insurance, etc.) Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
  
  In the rejection JAS also state potential losses to the retailer due to the parking contravention (if appropriate). An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions. This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.
  
  The charge that was imposed is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £94 can be reduced to £56.40 by early payment the charge is unreasonable to begin with.
  
• Lack of signage - no contract with driver
  The JAS appeal refusal states that the claim in question is based in contract law.
  
  As the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.
  
  A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of JAS and not expecting to read a contract when they park. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.
  
  
  The parking company needs to prove that the driver actually saw, read and accepted the terms, which means that I and the POPLA adjudicator 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, rather than simply the nominal amount presumably due in a machine on site.
  The idea that any driver would accept these terms knowingly is perverse and beyond credibility.
  
  
  No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'
  
  
  
• Lack of standing/authority from landowner
  J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.
  
  BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that JAS are entitled to pursue these charges in their own right.
  
  I require JAS to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, 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. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
  
• No attempt to mitigate loss
  JAS state that the driver was “seen by our parking attendant leaving the car park. The parking attendant took the first picture at xx.xx”. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.
  
• Unfair Terms
  The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."
  
  
• Unreasonable
  The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”
  
• Unlawful Penalty Charge
  Since there was no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).
  
  The operator could state the letter as an invoice or request for monies, but chooses to use the wording “CONTRACTUAL PARKING CHARGE NOTICE” in an attempt to be deemed an official parking fine similar to that the Police and Council Wardens issue.
  

This concludes my appeal and I request that it upheld and for POPLA to inform JAS to cancel the PCN.

littlemissforgetful

Rebuttal letter:




Dear Sir/Madam,

This is my response to JAS’ statement regarding my appeal.

• The copy of the parking ticket in the evidence pack includes a stub not included on the original stuck to the car windscreen. The box for ‘Driver’ is ticked ‘male’. The driver was clearly not male. If the ticket issuer was confused about the driver of the vehicle can he prove that the person he saw was indeed the driver of the above car?
  
• JAS state the time of the first photograph to be 16.12 which is confirmed in the first photo of the evidence pack. The second photo shows a time of 16.22, with the ticket clearly already stuck to the windscreen. How can they then have included a 10 minute ‘grace time’ before the ticket was written? I quote JAS ‘Genuine pre-estimate of loss’ in the evidence pack. ‘We estimate that on average an attendant spends 10 - 15 minutes recording and issuing a Parking Charge Notice’, it obviously was somewhat less than this. Can they prove that the driver had not returned to use the shop within those ten minutes? Especially given that the attendant was confused as to whom the driver was (see point number 1). I attach a receipt to show that Staples was in fact used on this occasion.
  
• Genuine pre-estimate of loss statement
  

My main point revolves around the fact that the charge is not a genuine pre-estimate of loss:
The charge is not a genuine pre-estimate of loss incurred by JAS and is punitive, contravening the Unfair Contract Terms Act 1997.


I will hereby consider the points raised in their statement submitted to PoPLA in the evidence pack.

• DVLA Fees / Processing Costs for this appeal cost is £13
  
  An enquiry to DVLA costs £2.50. I put JAS to provide evidence for the remainder of this cost. In any case, many recipients of PCN's will respond directly thus obviating the need for a DVLA enquiry, so the actual cost of a DVLA enquiry cannot form part of a pre-estimate of loss.
  
• Expense of each appeal is for example Stationery includes postage and printing £2.50
  
  Many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss. I ask JAS to submit evidence for this expense.
  
• Parking Attendants and Appeals Department staff wages and salaries which includes Employers National Insurance and Tax (PCN recording and issuing) for each case 13.81
  
  Costs associated with paying wages are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.
  
• Appeals Staff 1 hour (call handling / appeals writing) for each case is £7.00
  
  Costs associated with paying wages are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.
  
• Office Management to handle and maintain up-to-date Data which includes evidence of photos and information of parking charge notice putting together, dealing with appeals via email or writing also dealing with POPLA appeals for each case cost us £24.50
  
  I ask JAS to present evidence for what exactly these costs are. Staff are employed regardless. Their costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the staff would still have been employed. In any case, many recipients of PCN's will not appeal, so the actual cost of handling an appeal cannot form part of a pre-estimate of loss.
  
  Furthermore, how does this differ from what the appeals staff mentioned above are supposedly doing? This would appear to be treble-counting.
  
• IT system up keep to make sure all the information comes up correct and secure for each case cost us £33.19
  
  This would appear to be entirely fictitious and cannot be accepted without detailed evidence. Furthermore, the system (if any) exists anyway. Its costs are tax-deductible against profit and cannot constitute a loss arising from a parking "event". If the "event" had never occurred the system would still exist and costs would still be incurred. I question JAS, do IT systems really need to be reinstalled every time a PCN is issued?

bod1467

Well done.

But did this really need a THIRD thread?

https://forums.moneysavingexpert.com/discussion/5070823
https://forums.moneysavingexpert.com/discussion/5079882

littlemissforgetful

[FONT=Century Gothic,Century Gothic]

[FONT=Century Gothic,Century Gothic]











[/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Assessor has considered the evidence of both parties and has determined that the appeal be [/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]allowed. [/FONT][/FONT]
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic] [/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Assessor’s reasons are as set out.
[/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]The Operator should now cancel the parking charge notice forthwith. [/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]3162654004 2 11 November 2014 [/FONT][/FONT]
[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic] [/FONT][/FONT] [FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]Reasons for the Assessor’s Determination
[/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]On 12 September 2014 the Operator’s employee issued a parking charge notice to a vehicle with registration mark L009HKB. The Operator’s employee recorded that the motorist did not use the car park provider’s premises at all.
The Appellant raised more than one ground of appeal. However, I shall only deal with the ground upon which the appeal is being allowed. Specifically, the Appellant challenged the authority of the Operator to issue parking charges for the land in question.
Membership of the Approved Operator Scheme does require the parking company to have clear authorisation from the landowner, if it is not itself the landowner, as to its role in relation to the parking control and enforcement. This is set out in the BPA Code of Practice. However, as with any issue, if the point is specially raised by an Appellant in an appeal, then the Operator should address it by producing such evidence as it believes refutes a submission that it has no authority.
While the Operator has purported to produce a contract, the document provided is so heavily redacted that I am unable to tell if the Operator had authority for the site on the date in question.
Consequently, I must find that the Operator has failed to produce sufficient evidence to refute the Appellant’s submission that it did not have authority to issue a parking charge notice.
Accordingly, I must allow the appeal.
[/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]

[/FONT][/FONT][FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]

[/FONT][/FONT]

littlemissforgetful

No, sorry about that. I just though it would be helpful to have all that in one place, in one thread. When I was looking, I looked through SO many threads and it was pretty confusing. Was just trying to help!