Parking Ticket

Half_way

did they use the term shot yourself in the foot? word for word?

Sueanddogs

Should I download the POPLA form from their website and just use that? Also although I did not take any photos on the day, I have since returned and took some which blatantly shows other cars parked there without tickets on them. Should I send these to POPLA?

bod1467

What happened doesn't matter. POPLA will not consider mitigating circumstances at all. Your appeal needs to purely focus on the usual winning points (signage, standing, GPEoL etc.)

You either download the form and send it in via post, or make the appeal online.

Redx

you can do, but an alternative is to draft your popla appeal (that you should have been working on for the last few months) from the examples listed in the popla appeals link in POST #3 of the newbies sticky thread

when completed and happy with it (in word or wordpad) , you can attach it as your popla appeal on the popla site (as a word doc or a pdf) , and put see attached appeal in the box

tick 3 from 4 boxes (not stolen)

it really is that simple , so dont make it hard

ps:- when given the popla code, they usually give you the form as well (or should do)

you can download and print it, add the ref and send it by recorded post, if you want to

I would use the website and attach a word doc myself

check the expiry of this popla code on the parking cowboys first though, and do not miss this deadline

Sueanddogs

Thanks guys for the advice. Being a total wimp out and letting Cowboys take over. Driving my brain crazy trying to find sticky#3 etc and deciphering all abbreviations inbetween. Whole thing is making me feel physically ill. Just want them to take it all away _pale_

ezerscrooge

Have a crack with this as start. Change your details to suit and change YYY at ANPR

Failing that have a look at these..

https://forums.moneysavingexpert.com/discussion/4766249
______________________________________


Car Reg : xxxxx
Location: : xxxxxx
Date of PCN issue : xxxxxx
PCN Number : xxxxxx

POPLA Verification Code: xxxxx


Dear POPLA Assessor,

I am the registered Keeper of the above vehicle and I'm writing this to appeal a charge sent to me by YYY

I would like to appeal this notice on the following grounds:

1. Charge not a genuine pre-estimate of loss
2. Unlawful penalty clause
3. No authority to levy charges
4. No contract with the motorist
5. Lack of clear, readable signage - no contract with drive


1. Charge not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The YYY signs states that a PCN would be issued for a “failure to comply” with the terms of parking, which indicates that the parking charge represents damages for a breach of the parking contract.

Accordingly, the parking charge must be a genuine pre-estimate of loss. YYY has not provided any evidence as to how and why the parking charge is a genuine pre-estimate of loss. Therefore the parking charge is punitive and an unenforceable penalty charge.

The BPA Code of Practice states:

“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.“
and
“19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable. “

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. YYY cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':

"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...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.''

I put YYY to strict proof that that their charge represents a genuine pre-estimate of loss. To date YYY have refused to provide me with a detailed breakdown of how the amount of the “charge” was calculated in the form of documented, specific evidence applicable to this car park and this alleged incident. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business, for example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included in this pre-estimate of loss.

2. Unlawful penalty clause - revenue for YYY

Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket, as was found in the case of Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011), in Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012).

This transparently punitive charge by YYY is a revenue-raising exercise and is therefore unenforceable in law. YYY's own website is damning in this regard.

So this is (as is proven by the Operator's own website) a revenue-raising scheme disguised as a 'parking ticket' - so in fact it is an unenforceable penalty.

3. No authority to levy charges

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner’s behalf and enforce for breach of contract.

YYY must produce evidence to demonstrate that it is the landowner, or a contract that it has the authority of the landowner to issue charge notices at this location. I believe there is no contract with the landowner/occupier that entitles YYY to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore has no authority to issue charge notices.

I put YYY to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that the YYY produce to POPLA the contemporaneous and unredacted contract between the landowner and YYY. Even if a basic contract is produced and mentions PCNs, 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 YYY and the owner/occupier, containing nothing that YYY can lawfully use in their own name as a mere agent, that could impact on a third party customer.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read and the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

Additionally, if the landowner contract shows a termination clause or notice period that could allow the contract to be terminated prior to the date of the alleged incident, I put the PPC to strict proof that the contract was in force on the relevant date


4. No contract formed

There has been no contract formed with the parking company therefore there can be no breach of contract.

In the case ParkingEye v Green. (08/05/2014 High Wycombe) Judge Jones ruled there could be no contract in a free car park as there was no consideration from the motorist. For a contract to exist, there must be consideration from both sides and, as this is a free car park, there was no consideration required from the motorist. In this case the judge ruled that a contract did not exist, and therefore the parking company could not claim for breach of contract.

5. Lack of clear, readable signage - no contract with driver

The signage was not compliant with the BPA Code of Practice and there was no valid contract formed between the YYY and the driver. 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 any terms and any consequences for breach.

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious at the end, and where the plaintiff had parked often before. He said:

“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

Any alleged contract would 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


This concludes my appeal.