UKPC POPLA Appeal

CityInTheSticks

Hi all,

Long story short I was had by UKPC when parking in a carpark they 'look after'.

Having appealed with help of a very helpful MSE forum user I received a rejection letter, citing signage, the next step is POPLA.

Please below the letter I intend to submit on-line, any comments/advise before sending would be much appreciated.

Dear POPLA,
I am the driver & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

The demand for a payment of £100 (£60 minimum at prompt payment )is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is a free car park. There is therefore no loss flowing from this parking event because there can be no loss of potential income when a car is parked over a line in a car park that is not full.

I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. UKPC parking charge notice refers to 'breach of terms and conditions' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

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. 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 by a driver who was fully authorised to be parked at that site at no cost.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

Nor is the charge 'commercially justified'. If UKPC cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLAAssessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2) Lack of standing/authority from landowner
UKPC 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 putUKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC 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 UKPC are entitled to pursue these charges in their own right.

I require UKPC 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 pursue charges in their own right.

The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend UKPC only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'

3) Unreasonable/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. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.


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".

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.”

I contend it is wholly unreasonable to rely on signs placed on random external walls and lamps posts in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where by the alleged parking infringement, no loss had occurred. I put this Operator to strict proof to justify that their charge is reasonable.


4). Unclear and non-compliant signage, forming no contract with drivers.

As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The car park entrance is on a roundabout where traffic is coming from three different sides, entering and exiting the car park. The driver’s attention is therefore focused on the traffic, not to a parking sign amongst other signs on the side of the entrance where you are least likely to look due to the position of the other moving vehicles around you.


This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “ drawn to his attention in the most explicit way. 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.”

Due to the above points, I therefore respectfully request that my appeal is upheld and the charge is dismissed.



I can provide a photo of said roundabout.

Let me know what you think?

Thanks in advance

Coupon-mad

Roundabout? What were the circumstances and was it a windscreen PCN? Why no paragraph pointing out 'no keeper liability' due to the NTK being rubbish?

CityInTheSticks

Yes, there is a mini roundabout that has 3 exits, 2 allow you to enter different parts of the carpark which surrounds the shopping complex, while the 3rd is the exit from the shopping complex onto the public highway.

Yes it was a windscreen ticket, waited for the Notice to Keeper, appealed, this was rejected, so now going to POPLA.

Oh yes, missed that rather important point. Is the new letter below ok?

Dear POPLA,
I am the driver & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss

The demand for a payment of £100 (£60 minimum at prompt payment )is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is a free car park. There is therefore no loss flowing from this parking event because there can be no loss of potential income when a car is parked over a line in a car park that is not full.

I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. UKPC parking charge notice refers to 'breach of terms and conditions' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

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. 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 by a driver who was fully authorised to be parked at that site at no cost.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

Nor is the charge 'commercially justified'. If UKPC cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLAAssessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2) Lack of standing/authority from landowner
UKPC 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 putUKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC 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 UKPC are entitled to pursue these charges in their own right.

I require UKPC 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 pursue charges in their own right.

The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend UKPC only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'

3) Unreasonable/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. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.


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".

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.”

I contend it is wholly unreasonable to rely on signs placed on random external walls and lamps posts in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where by the alleged parking infringement, no loss had occurred. I put this Operator to strict proof to justify that their charge is reasonable.


4). Unclear and non-compliant signage, forming no contract with drivers.

As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The car park entrance is on a roundabout where traffic is coming from three different sides, entering and exiting the car park. The driver’s attention is therefore focused on the traffic, not to a parking sign amongst other signs on the side of the entrance where you are least likely to look due to the position of the other moving vehicles around you.


This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “ drawn to his attention in the most explicit way. 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 wording contained within the signage was also unreadable due to its size and format, and even if they could have been seen and read the terms are misleading, with words which attempt to dress up the charge as a 'contractual' fee. It is not; see point 4 above.

5) No standing or authority to pursue charges nor form contracts with drivers - No Keeper Liability
UKPC do not own the land mentioned in their Notice to Keeper and have not provided any evidence that they are lawfully entitled to demand money from a driver or keeper. Even if a contract is shown to POPLA, I assert that there are persuasive recent court decisions against UKPC which establish that a mere parking agent has no legal standing nor authority which could impact on visiting drivers. The charge from UKPC as a third party business agent is an unenforceable penalty. They have failed to provide proof of any agreement in place between themselves and the landlord of the property who also owns the parking space they claim to manage.


Due to the above points, I therefore respectfully request that my appeal is upheld and the charge is dismissed.

CityInTheSticks

Ok, 3rd try. Fingers crossed....

Dear POPLA,
I am the driver of XXXXXX reg vehicle & this is my appeal concerning a ticket received on xx/xx/xx at Crystal Peaks Shopping Centre Car park in Sheffield:

1) The Charge is not a genuine pre-estimate of loss

The demand for a payment of £100 (£60 minimum at prompt payment )is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is a free car park. There is therefore no loss flowing from this parking event because there can be no loss of potential income when a car is parked over a line in a car park that is not full.

I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. UKPC parking charge notice refers to 'breach of terms and conditions' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

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. 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 by a driver who was fully authorised to be parked at that site at no cost.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

Nor is the charge 'commercially justified'. If UKPC cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLAAssessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2) Lack of standing/authority from landowner
UKPC 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 putUKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC 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 UKPC are entitled to pursue these charges in their own right.

I require UKPC 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 pursue charges in their own right.

The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend UKPC only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'

3) Unreasonable/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. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.


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".

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.”

I contend it is wholly unreasonable to rely on signs placed on random external walls and lamps posts in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where by the alleged parking infringement, no loss had occurred. I put this Operator to strict proof to justify that their charge is reasonable.


4). Unclear and non-compliant signage, forming no contract with drivers.

As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The car park entrance is on a roundabout where traffic is coming from three different sides, entering and exiting the car park. The driver’s attention is therefore focused on the traffic, not to a parking sign amongst other signs on the side of the entrance where you are least likely to look due to the position of the other moving vehicles around you.


This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “ drawn to his attention in the most explicit way. 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 wording contained within the signage was also unreadable due to its size and format, and even if they could have been seen and read the terms are misleading, with words which attempt to dress up the charge as a 'contractual' fee. It is not; see point 4 above.

5. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Under the terms of the Protection of Freedoms Act, specifically Schedule 4, paragraphs 8 and 9, UKPC must identify the creditor who is legally entitled to recover parking charges on their Notice to Keeper. They have failed to do so, and so they have no right under the PoFA to reclaim parking charges from the keeper of the vehicle. In a previous ruling,POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 or 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued. UK Parking Control Ltd has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be UK Parking Control Ltd or its client, its debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...”.
The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, UK Parking Control Ltd has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under POFA2012 and so it is a nullity.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


Due to the above points, I therefore respectfully request that my appeal is upheld and the charge is dismissed.


Apart from the wording omissions mentioned in point 5 having read paragraph 8 and my letter i do not think any other other wording omissions were made.

Do i also need to provide a supporting image of the roundabout/car park entrance?

CityInTheSticks

Ok great and I'm ready to go. My POPLA deadline is tomorrow so will doing an on-line appeal today.

Thanks so much for the help, it is much appreciated.

And my final letter for anyone appealing to POPLA for receiving a UKPC ticket is:
Dear POPLA,
I am the driver of XXXXXX reg vehicle & this is my appeal concerning a ticket received on xx/xx/xx at Crystal Peaks Shopping Centre Car park in Sheffield:

1) The Charge is not a genuine pre-estimate of loss

The demand for a payment of £100 (£60 minimum at prompt payment )is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is a free car park. There is therefore no loss flowing from this parking event because there can be no loss of potential income when a car is parked over a line in a car park that is not full.

I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. UKPC parking charge notice refers to 'breach of terms and conditions' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

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. 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 by a driver who was fully authorised to be parked at that site at no cost.

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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed.

Nor is the charge 'commercially justified'. If UKPC cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLAAssessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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.''

My case is the same and UKPC contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, UKPC are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #2.

2) Lack of standing/authority from landowner
UKPC 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 putUKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC 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 UKPC are entitled to pursue these charges in their own right.

I require UKPC 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 pursue charges in their own right.

The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend UKPC only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'

3) Unreasonable/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. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.


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".

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.”

I contend it is wholly unreasonable to rely on signs placed on random external walls and lamps posts in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where by the alleged parking infringement, no loss had occurred. I put this Operator to strict proof to justify that their charge is reasonable.


4). Unclear and non-compliant signage, forming no contract with drivers.

As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.”

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The car park entrance is on a roundabout where traffic is coming from three different sides, entering and exiting the car park. The driver’s attention is therefore focused on the traffic, not to a parking sign amongst other signs on the side of the entrance where you are least likely to look due to the position of the other moving vehicles around you.


This concept of clarity is also stated in case law. When giving judgment in Thornton vs Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeals, Lord Denning stated that this was not “ drawn to his attention in the most explicit way. 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 wording contained within the signage was also unreadable due to its size and format, and even if they could have been seen and read the terms are misleading, with words which attempt to dress up the charge as a 'contractual' fee. It is not; see point 4 above.

5. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Under the terms of the Protection of Freedoms Act, specifically Schedule 4, paragraphs 8 and 9, UKPC must identify the creditor who is legally entitled to recover parking charges on their Notice to Keeper. They have failed to do so, and so they have no right under the PoFA to reclaim parking charges from the keeper of the vehicle. In a previous ruling,POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 8 or 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued. UK Parking Control Ltd has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be UK Parking Control Ltd or its client, its debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...”.
The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, UK Parking Control Ltd has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under POFA2012 and so it is a nullity.
I therefore respectfully request that my appeal is upheld and the charge dismissed.


Due to the above points, I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Gunscrossed

Well, how did it go?

Umkomaas

Gunscrossed wrote: »

Well, how did it go?

The poster hasn't looked in on the forum since February, so is unlikely to spot your post now. Send him/her a PM - they should get an email notification that you are attempting to make contact.