F1rst POPLA Appeal Questions

Peeko

Hi,

F1rst have rejected my appeal to them (surprise surprise) and so now I am doing a 'real' appeal through the POPLA process.

I have a few questions:
> If the NtK fails do I need to supply a copy of the NtK as 'evidence' or do the POPLA people have a copy of this automatically?

> I get the impression from other posts here that I need to put the appeal in as late as possible (so they can't regenerate a NtK?). I received my rejection letter and popla code on Dec 2nd, people have referenced somewhere I can check the actual deadline on the popla website but I have been looking around and can't find anything - has this been taken down?

> They claim in their rejection letter that "The charge is based on a pre-estimate of loss, and has been calculated using our company records (which are publicly available). The Parking Charge amounts are calculated in conjunction with the landholder, and have been approved and prescribed by the British Parking Association. First Parking does not believe that it would be proportionate to supply our calculations relating to Parking Charges at this time. It should be noted that it is commonly held that any pre-estimate of loss need only be rough and ready."
- I have a feeling this is mostly waffle trying to scare me but should I definitely still include the 'no genuine pre-estimate of loss' in my appeal? A lot of the appeals lately do seem to be allowed because of this point but I am a bit worried about if F1rst have evidence up their sleeve!

> In terms of pages - when is an appeal too long? I have brought together an appeal from a few posts I have already found on here but it is at 3 pages - is this too much?

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Here is my appeal, incase anyone does feel nice enough to read over it. To be honest points 3 and 4 are me clutching at straws and I'm hoping for 1. or 2. :

As the registered keeper of the vehicle, registration number XXXXXX at the time of the incident, I wish to appeal against the parking charge issued by F1rst Parking LLP.

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.
2. No Keeper Liability
3. Contract with the landowner – no locus standi.
4. Unclear and non-compliant signage, forming no contract with drivers.

To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above the stated tariff, I require F1rst Parking LLP to 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.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor regard paid to any 'genuine pre-estimate of loss' prior to setting the parking charges at this site (before putting signs up and enforcing the charges, back when the contract was initially signed). I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged unpaid stay is 20 minutes or 20 hours.

The F1rst Parking LLP Notice to Driver alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. 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.''

This charge cannot be 'commercially justified' so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). 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.''

In ParkingEye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
Also in the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, 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”. My case is the same and I respectfully request my case is upheld and the charge is dismissed.

2. No Keeper Liability
F1rst has failed to comply with POFA. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The NTK issued by F1rst fails on four counts:
• 8(2)(a) – there is no mention of the period of parking to which the notice relates
• 8(2)(b) – the notice does not advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• 8(2)(c) – the notice does note state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b)*, (c) and (f);
• 8(2)(i) – the notice does not specify the date of on which the notice was sent.

As the Notice to Keeper fails to meet the requirement of Paras 8(2)(a), 8(2)(b), 8(2)(c), 8(2)(e) and 8(2)(i), the keeper cannot be held liable.

3. Contract with landowner - no locus standi
F1rst Parking LLP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between F1rst Parking LLP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): (link).

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. F1rst Parking LLP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

4. Unclear and non-compliant signage, forming no contract with drivers.
Due to their position and the barely legible size of the smallprint, the signs in this car park are very hard to read. I contend that the signs and any core parking terms thatF1rst Parking LLP are relying upon were too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

Many thanks,
XXX