Parking fine at work

prowla

On a plus side, all of these speculative parking invoices are making the nation more legally savvy!

fkrjd

Thanks for that here are the changes I have made highlighted in blue. Just to clarify Coupon-mad are you saying don't use the parts highlighted in green? Any further advice gratefully recieved.


Dear POPLA,
I am the registered keeper and driver of this lease vehicle and this is my appeal citing the following reasons

1 No GPEOL
2 Lack of signage
3 Lack of standing

I am the keeper of the vehicle which was issued with a PCN for parking without a valid permit. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
2. No landowner contract assigning rights to MET to enforce contracts with drivers
3. No contract formed by the signage

1. Not a genuine contractual fee nor genuine pre-estimate of loss
The demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. The Operator would have been in the same position had the parking charge notice not been issued, because the car had a permit very obviously and correctly on display in the windscreen of the car as is required,no doubt the employee saw it
In any case, the Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. I require the Operator to provide a detailed breakdown of their loss and on what basis this can be their loss at all, when the car was parked with a valid permit. The Office of Fair Trading has stated to the BPA Ltd that ''a parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists''.

In this case no loss exists so there is no initial sum to pursue, and they certainly cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage. The same is true of the parking attendant who is already paid to visit sites and take photos & issue PCNs, and is not significantly diverted from this activity when a car is considered to be parked in breach.

Judge Charles Harris QC in 'A Retailer v Ms B' 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 parking enforcement operative far from being diverted from his usual activities, was in fact actively engaged in them. He was doing just what the claimants paid for him to do... [16] So the claim in respect of staff time cannot, in my judgment, 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’’

POPLA Senior Assessor Chris Adamson stated on 3rd December 2014 in POPLA decision Reference 6862654003 which is relevant as it is a permit case:

''there is no dispute that the Appellant did in fact possess a permit. Permits are not analogous with pay and display tickets which are bought for an individual stay and represent proof of purchase. In this case the Appellant was a permit holder and so there was no loss in relation to the permit. The Operator has provided no other evidence of any initial loss.''

and also the same Assessor has summed up many decisions thus:

''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.'
2) Lack of signage - no contract with driver
I now see, after searching the car park, that there is a sign is placed at the side of the rows of bays, high up but it is not prominent nor readable from a car. 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 the case of parking, terms must be clear to read before the parking event). It is a fact that I did not see any sign; there was no consideration/acceptance and no contract agreed. I was parked on a grass verge in the hospital grounds; nowhere in the surrounding area was there any signs or lines to communicate to drivers that parking was not permitted in that area, which is normally used by employees' cars as an overflow area, causes no obstruction and has been used for parking for years. If TPS are to impose terms which, to my understanding, must be a new restriction then the restricted area must be made extremely clear to employees, who would have a legitimate expectation that cars can indeed be parked there. A landowner would not put a 'keep off the grass' sign 100 yards away on a pole, nowhere near the grass - because it would not be seen! So by TPS omitting to place any signs or lines adjacent to this verge they have failed to ensure I knew about the terms, which must be explicit where a contract includes an onerous term like a punitive charge. I expect TPS to produce a site map and to show exactly where this verge is, and where the nearest sign is, so that the POPLA Assessor can consider the evidence.


3) Lack of standing/authority from landowner
TPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put TPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). TPS 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 TPS are entitled to pursue these charges in their own right.

I require TPS 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.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Coupon-mad

Yes, delete the green paragraph as it's superfluous to the appeal IMHO. The rest looks fine.

fkrjd

Brilliant thank you so much for all your help I'll send you a cyber pint of beer

Coupon-mad

Mine's a white wine as I am a lady!

Fruitcake

fkrjd wrote: »

Brilliant thank you so much for all your help I'll send you a cyber pint of beer

Don't forget to delete item 4 from the index as well.

fkrjd

Coupon-mad wrote: »

Mine's a white wine as I am a lady!

Not a problem:T

fkrjd

here's the final draft


Dear POPLA,
I am the registered keeper and driver of this lease vehicle and this is my appeal citing the following reasons

1 No GPEOL
2 Lack of signage
3 Lack of standing

I am the keeper of the vehicle which was issued with a PCN for parking on a grass verge. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
2. No landowner contract assigning rights to TPS to enforce contracts with drivers
3. No contract formed by the signage

1. Not a genuine contractual fee nor genuine pre-estimate of loss
The demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. The Operator would have been in the same position had the parking charge notice not been issued, because the car had a permit very obviously and correctly on display in the windscreen of the car as is required,no doubt the employee saw it
In any case, the Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. I require the Operator to provide a detailed breakdown of their loss and on what basis this can be their loss at all, when the car was parked with a valid permit. The Office of Fair Trading has stated to the BPA Ltd that ''a parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists''.

In this case no loss exists so there is no initial sum to pursue, and they certainly cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage. The same is true of the parking attendant who is already paid to visit sites and take photos & issue PCNs, and is not significantly diverted from this activity when a car is considered to be parked in breach.

Judge Charles Harris QC in 'A Retailer v Ms B' 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 parking enforcement operative far from being diverted from his usual activities, was in fact actively engaged in them. He was doing just what the claimants paid for him to do... [16] So the claim in respect of staff time cannot, in my judgment, 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’’

POPLA Senior Assessor Chris Adamson stated on 3rd December 2014 in POPLA decision Reference 6862654003 which is relevant as it is a permit case:

''there is no dispute that the Appellant did in fact possess a permit. Permits are not analogous with pay and display tickets which are bought for an individual stay and represent proof of purchase. In this case the Appellant was a permit holder and so there was no loss in relation to the permit. The Operator has provided no other evidence of any initial loss.''

and also the same Assessor has summed up many decisions thus:

''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.'

2) Lack of signage - no contract with driver
I now see, after searching the car park, that there is a sign is placed at the side of the rows of bays, high up but it is not prominent nor readable from a car. 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 the case of parking, terms must be clear to read before the parking event). It is a fact that I did not see any sign; there was no consideration/acceptance and no contract agreed. I was parked on a grass verge in the hospital grounds; nowhere in the surrounding area was there any signs or lines to communicate to drivers that parking was not permitted in that area, which is normally used by employees' cars as an overflow area, causes no obstruction and has been used for parking for years. If TPS are to impose terms which, to my understanding, must be a new restriction then the restricted area must be made extremely clear to employees, who would have a legitimate expectation that cars can indeed be parked there. A landowner would not put a 'keep off the grass' sign 100 yards away on a pole, nowhere near the grass - because it would not be seen! So by TPS omitting to place any signs or lines adjacent to this verge they have failed to ensure I knew about the terms, which must be explicit where a contract includes an onerous term like a punitive charge. I expect TPS to produce a site map and to show exactly where this verge is, and where the nearest sign is, so that the POPLA Assessor can consider the evidence.


3) Lack of standing/authority from landowner
TPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put TPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). TPS 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 TPS are entitled to pursue these charges in their own right.

I require TPS 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.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

BenefitMaster

Is the PPC TPS or MET... Proof read carefully.

fkrjd

here's the final draft with suggested changes made Please read and comment


Dear POPLA,
I am the registered keeper and driver of this lease vehicle and this is my appeal citing the following reasons

1 No GPEOL
2 Lack of signage
3 Lack of standing

I am the keeper of the vehicle which was issued with a PCN for parking on a grass verge. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds.

1. Not a genuine contractual fee nor genuine pre-estimate of loss
2. No landowner contract assigning rights to TPS to enforce contracts with drivers
3. No contract formed by the signage

1. Not a genuine contractual fee nor genuine pre-estimate of loss
The demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. The Operator would have been in the same position had the parking charge notice not been issued, because the car had a permit very obviously and correctly on display in the windscreen of the car as is required,no doubt the employee saw it
In any case, the Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. I require the Operator to provide a detailed breakdown of their loss and on what basis this can be their loss at all, when the car was parked with a valid permit. The Office of Fair Trading has stated to the BPA Ltd that ''a parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists''.

In this case no loss exists so there is no initial sum to pursue, and they certainly cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage. The same is true of the parking attendant who is already paid to visit sites and take photos & issue PCNs, and is not significantly diverted from this activity when a car is considered to be parked in breach.

Judge Charles Harris QC in 'A Retailer v Ms B' 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 parking enforcement operative far from being diverted from his usual activities, was in fact actively engaged in them. He was doing just what the claimants paid for him to do... [16] So the claim in respect of staff time cannot, in my judgment, 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’’

POPLA Senior Assessor Chris Adamson stated on 3rd December 2014 in POPLA decision Reference 6862654003 which is relevant as it is a permit case:

''there is no dispute that the Appellant did in fact possess a permit. Permits are not analogous with pay and display tickets which are bought for an individual stay and represent proof of purchase. In this case the Appellant was a permit holder and so there was no loss in relation to the permit. The Operator has provided no other evidence of any initial loss.''

and also the same Assessor has summed up many decisions thus:

''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.'

2) Lack of signage - no contract with driver
I now see, after searching the car park, that there is a sign is placed at the side of the rows of bays, high up but it is not prominent nor readable from a car. 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 the case of parking, terms must be clear to read before the parking event). It is a fact that I did not see any sign; there was no consideration/acceptance and no contract agreed. I was parked on a grass verge in the hospital grounds; nowhere in the surrounding area was there any prominent signs or lines to communicate to drivers that parking was not permitted in that area, which is normally used by employees' cars as an overflow area, causes no obstruction and has been used for parking for years. If TPS are to impose terms which, to my understanding, must be a new restriction then the restricted area must be made extremely clear to employees, who would have a legitimate expectation that cars can indeed be parked there. A landowner would not put a 'keep off the grass' sign 100 yards away on a pole, nowhere near the grass or not in a prominent position - because it would not be seen! So by TPS omitting to place any signs or lines adjacent to this verge in a prominent easily seen position they have failed to ensure I knew about the terms, which must be explicit where a contract includes an onerous term like a punitive charge.

3) Lack of standing/authority from landowner
TPS has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put TPS to strict proof of the contract terms with the actual landowner (not a lessee or agent). TPS 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 TPS are entitled to pursue these charges in their own right.

I require TPS 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.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.