Do I have a POPLA case?

jrd9876

We are not the same does anyone have any advice on my letter please? Top one!

Coupon-mad

Obviously I removed this faux pas which would have ruined your point #3!

'' (and it was dark when xxxxx parked)'' !!!

And have changed it as follows which I hope will work although Sue Blacksmith at PPS does submit some utter drivel to POPLA in an evidence pack (which you will need to show us and rebut later on in a final POPLA email).





xxth December 2014

POPLA verification code xxxxx

Dear POPLA Assessor,

My appeal as registered keeper of the vehicle, comprises these four points:

1. The intention of PPS' charge was not based on any advance regard to genuine pre-estimate of loss, rather they intended it to be a tariff. And if they say there was a GPEOL then I require them to prove it was prior to the parking event and that their stated heads of cost were in their reasonable contemplation at the time of issue of the PCN.
2. The Notice to Keeper is not compliant with the POFA 2012 so there is no keeper liability established.
3. The Operator has no standing, legal title nor authority from the landowner, to pursue charges in their own name in the courts.
4. The signage formed no contract with the driver as the terms are unlit, unreadable in the dark and at least one sign is obscured by a bush.

These points are explained below:

1. The intention of PPS' charge was not based on any advance regard to genuine pre-estimate of loss, rather they intended it to be a tariff. PPS' stated intentions to POPLA earlier this year were that the charges making up their PCNs at all car parks, were designed to be a contractual 'fee'. But then they lost cases at POPLA so have changed their minds after the event.

If PPS say the charge is in fact for 'breach' after all, then I put them to strict proof that there ever was a prior meeting to establish a 'genuine pre-estimate of loss'. Merely showing a fresh set of calculations now, does not prove this 'GPEOL' was established before the alleged parking event. In fact a lack of such proof will show their calculations are a 'post' estimate, per case, which is not allowable.

If Ms Blacksmith trots out the usual 'PPS evidence pack' I will need time to rebut it of course, but for the moment I say this:

- As a registered keeper, I am not liable to pay the full hourly wages & NI contributions of PPS staff! These are tax-deductible costs of running a business, salaries which would be paid anyway. These full staffing costs cannot possibly directly flow from one alleged breach for a case which (unusually) happens to have now followed the POPLA route. Further, their salary includes time for training and also holiday pay and other elements within the hourly rate which I cannot possibly be liable to pay. Clerical staff 'working' for any parking operator while they look for a proper job, are expected to handle appeals as part of their usual core activities, so they are not significantly diverted at all. They are positively engaged in their normal salaried work whether sending out permits, communicating with landowner clients or dealing with appeals. So, there is no loss of staff time, as was found in 'A Retailer v Ms B' (a case focussing on whether there was any reclaimable loss) where Judge Charles Harris QC stated:

"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgement, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

- PPS Managers do not spend 'hours' on each POPLA case - any competent clerical staff member could put their 'evidence packs' together as they are in the main, generic. There are too many layers of checks by higher paid staff to meet the requirement to be 'genuine' as a pre-estimate. If Ms Blacksmith does spend time checking the work of others then this falls within her normal activities as a Manager, in terms of quality control and Management checks, she is not diverted from her salaried job and so this is not claimable as a 'loss'.

- POPLA related 'work' cannot apply to each PCN anyway, as a 'genuine pre-estimate', because only approximately 1% of cases ever get to POPLA stage. The best that an Operator could factor in for POPLA work would be 1% of the time taken, which would be well under a pound.

- Since the vast majority will never to go to POPLA, this situation is comparable to cases where Operators add 'debt collection' costs (in fact the debt collection route is far more likely than POPLA). As a matter of policy, POPLA Assessors routinely dismiss 'debt collection stage' heads of cost, on the basis that 'cases may never get to debt collection stage so this is not applicable/too remote'. The same applies to 'POPLA costs', as was found by Nadesh Karunairetnam in ref 4212674003 in November 2014:

'... the cost of bringing the case to POPLA is too remote - it would not be in the reasonable contemplation of the parties at the time the parking contract was formed between the motorist and the operator. Consequently, the revised pre-estimate, absent of the costs which cannot be taken into account, stands at substantially lower than the parking charge. Therefore, I must find that the operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss. '

- If the driver had paid between day 14 and day 28 then the full cost of the PCN would have applied. How do PPS justify this charge issued to all drivers, if the calculation includes POPLA 'work and checks' which never actually occur in 99% of cases? These POPLA costs which are very rare, cannot have been in the reasonable contemplation of PPS at the time of issuing an average PCN.

Indeed, in the 2014 Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

This inflated charge is not enforceable according to the words of Mr Greenslade and it is trite law that a charge for breach cannot be punitive and can only put the claimant back in the position they would have been in if no breach had occurred (incidentally no breach is admitted anyway).

Furthermore PPS state in their rejection letter that they “incur a loss because incorrect parking prevents the efficient management of the car park” and yet, as is clear by their own pictures there were no other cars in the vicinity. How is this preventing efficient management when there is nothing else to manage? It is not even clear that this is a car park, being that it is a continuation of the road and there are no marked bays.

2. The document which purports to be a Notice to Keeper is not properly given under the POFA 2012. The NTK does not tell me as keeper what the contravention was and how much of the tariff allegedly remains unpaid for what length of parking period. In this car park there are multiple possibilities - so, I am left to wonder, are PPS saying that the driver failed to pay any tariff, or paid a partial tariff/overstayed, or paid with RingGo but suffered a failure of that system, or perhaps input the car registration wrongly, or paid in full but the P&D ticket was not seen on display? The NTK fails to tell me the circumstances which gave rise to this charge.

Further non-compliance with the POFA is the omission of the following wording as found in paragraph 8 of schedule 4:

'‘(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver...the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;’
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available''

In addition, the Notice contains misleading wording which not only states a level of authority and deadlines that do not exist but also breaches the BPA Code of Practice paragraph 14: 'Misrepresentation of authority':

14.1 You must give clear information to the public about what parking activities are allowed and what is unauthorised. You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority.'

In bold at the top of the Notice is the underlined word 'Important' and therein follows this misleading imaginary deadline and threat:

'Failure to pay the parking charge within 14 days of receiving it, without reasonable excuse, could lead to legal proceedings being issued.'

This impersonates Police wording and is patently not true. There is no 14 day deadline at all and a person does not need 'reasonable excuse' not to pay or appeal a private parking charge.

This is compounded by another large font paragraph in bold: 'Only payment in full will prevent us from taking further action'. It is utterly misleading and untrue that the keeper's ONLY option is to pay in full because of course there is the option to appeal. POPLA will notice that the NTK completely omits any details (even on the back) about how to appeal and the keeper's right to POPLA. There is nothing about it at all, so I hope that POPLA may be minded to report this serious omission to the BPA Ltd.

A NTK is fundamental to establishing keeper liability and if the Notice is not properly given it is therefore a nullity. It is a strict requirement of POFA that all statutory conditions must be met and prescribed wording included, in order for keeper liability to be established.

3. I require PPS to produce an unredacted copy of the contract with the landowner. If they merely show a statement from a managing agent I require proof that the 'agent' has the authority from the actual landowner to grant a third party contract for parking management for breaches.

I believe PPS have no locus standi to pursue the matter in the courts nor to form contracts with drivers in their own right. I believe they are merely a commercial agent for the true principal and have a bare licence to 'issue tickets' which gives them no standing. A PPS 'witness statement' would not refute this appeal point, since the following issues would be hidden:
- whether the contract allows for a contractual fee model
- whether this contravention is actually stated in the contract
- whether PPS are an agent and when the contract expires/renews
- the site boundary and scope of the operation
- what the charges are for each alleged contravention
- any 'revenue sharing' which must be reflected in the calculations

To be clear, I require the contract itself, unredacted, because I am NOT querying the mere right to 'issue tickets' - which anyone could do, even the car park cleaning contractors and obviously they would not have any locus standi either! If a witness statement is produced then I will be rebutting it.

4. Terms on a notice are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety. At this site, the signage formed no contract with the driver as the terms are completely unreadable in the dark and at least one sign is obscured by a bush. Such as they are, the signs are placed high up, in vegetation and are unlit, so that in darkness no signs are visible and the words (on an unreflective background) are certainly unreadable. There is no entrance sign, no private land sign, no bays, no road marking to alert a driver to possible restrictions and no lighting on this dark roadway next to a Church. Any sign that the driver may have passed is certainly not prominent, not reflective and was placed too high to be lit by headlights.

Parking is free in Exeter after 6pm, both on street and off street, so (although this is apparently a private road - yet not marked as such) the driver would never have expected to look for restrictions unless the terms on signs were extremely explicit and clearly lit at night. PPS have so far shown me a lovely photo of one of their signs (in a bush) with my car apparently in the distance. I trust that the POPLA Assessor will see that you can only read the sign in that particular photo because of the flash on the camera the operator used. It was, in fact, pitch black when the driver stopped.

So PPS must show a site map and, in addition, photos in darkness taken without a camera flash.

The fact is that if the words are not readable in the hours of darkness then no contract was capable of being formed. The signs breach the BPA CoP Appendix B which effectively renders signs unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

There was no agreement to pay. 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 PPS and not expecting to read a contract when they arrive at night and see no clear signs at all. 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.'

The signs are certainly not 'startling' and so there was no contract established. This concludes my appeal.

Yours sincerely,

---

P.S. to jrd9876
By the way please check & confirm, is this all still true of the NTK? Is there really nothing about POPLA and all the rest as you have copied from a previous appeal?

In addition, the Notice contains misleading wording which not only states a level of authority and deadlines that do not exist but also breaches the BPA Code of Practice paragraph 14: 'Misrepresentation of authority':

14.1 You must give clear information to the public about what parking activities are allowed and what is unauthorised. You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority.'

In bold at the top of the Notice is the underlined word 'Important' and therein follows this misleading imaginary deadline and threat:

'Failure to pay the parking charge within 14 days of receiving it, without reasonable excuse, could lead to legal proceedings being issued.'

This impersonates Police wording and is patently not true. There is no 14 day deadline at all and a person does not need 'reasonable excuse' not to pay or appeal a private parking charge.

This is compounded by another large font paragraph in bold: 'Only payment in full will prevent us from taking further action'. It is utterly misleading and untrue that the keeper's ONLY option is to pay in full because of course there is the option to appeal. POPLA will notice that the NTK completely omits any details (even on the back) about how to appeal and the keeper's right to POPLA. There is nothing about it at all, so I hope that POPLA may be minded to report this serious omission to the BPA Ltd.

jrd9876

No it isn't true, thanks for noticing! I will emit those paragraphs and send it off. Thanks so much to everyone for their time!

jrd9876

Hi,

I received an "evidence pack" from PPS today - is there anything more I can do or is it now down to POPLA to make thier decision?

The way they justify the £100 is fairly grasping by the way!

Thanks

Redx

search this forum for "rebuttals" , submit some rebuttals to this latest pack asap to popla (add it to your own case using the ref number - on their site)

Umkomaas

Here's an excellent example of how one poster dealt effectively and comprehensively with a PPC's Evidence Pack. I'm sure this will give you plenty of ideas on how to handle your case.

https://forums.moneysavingexpert.com/discussion/comment/67385911#Comment_67385911

And another one to consider.

http://forums.moneysavingexpert.com/showpost.php?p=67402366&postcount=26

pagophila

jrd9876 wrote: »

Hi,

I received an "evidence pack" from PPS today - is there anything more I can do or is it now down to POPLA to make thier decision?

The way they justify the £100 is fairly grasping by the way!

Thanks

How did you get on?

Redx

pagophila wrote: »

If I may hijack this thread,

Andy

actually no you may not, as you agreed NOT TO on signup

please open a NEW THREAD of your own to receive bespoke answers to your own particular case, then use advanced edit to delete your post above

thank you

ManxRed

You'll win easily at POPLA.

Check the Newbies Sticky thread at the top of this forum.

pagophila

Redx wrote: »

actually no you may not, as you agreed NOT TO on signup

please open a NEW THREAD of your own to receive bespoke answers to your own particular case, then use advanced edit to delete your post above

thank you

Right, I think you've made that clear. I'm new to this: might I suggest you try and be a little less abrupt in future? It tends to put people off for good