UKPC Parking Charge - My Fault?

Redx

BlueWolf62126 wrote: »

Yes, I suppose I am of that mindset - which I know I shouldn't be.

I will definitely go down the no GPEOL route after waiting for the NTK to arrive in 28 days or so. Out of interest, I suppose the average success rate for getting charges dropped by the PPC due to no GPEOL is quite low, and therefore will most likely require POPLA anyway?

I am very motivated to fight this extortionate charge, not least because of discovering numerous examples of despicable UKPC tactics online over the last day. The worrying thing is that they're obviously not the only ones trying to screw with people.

correct, and agreed

although its more likely to be 40 to 56 days later, as it starts from day 29 and ends on day 56

after that , they can only pursue the driver (for up to 6 years)

ideally you get it killed off at popla, if they offer popla as members of the BPA, if not , they wont

sometimes these companies fold when they see the template letter

BlueWolf62126

So if they miss the 56 day deadline they're out of luck?

Here's to hoping they do fold when I send them the appeals template letter in a few week's time. Is e-mail or paper letter best?

Redx

BlueWolf62126 wrote: »

So if they miss the 56 day deadline they're out of luck?

Here's to hoping they do fold when I send them the appeals template letter in a few week's time. Is e-mail or paper letter best?

not out of luck, just they cannot use POFA 2012 against the RK, but can still pursue the driver so the RK can obstruct them and force them to lose (hopefully)

all depands on the PPC, sometimes both is best, with proof of postage

you will have to study their NTK and website closely to see which is accepted, or best

if in doubt , snail mail with free proof of posting at the PO and keep the receipt safe

these people will try all sorts to extort money from you , so dont assume its all black and white, research and learn and you should win, but there are no guarantees

Coupon-mad

BlueWolf62126 wrote: »

So if they miss the 56 day deadline they're out of luck?

Here's to hoping they do fold when I send them the appeals template letter in a few week's time. Is e-mail or paper letter best?

They will fold, they still do even without offering POPLA, look:

https://forums.moneysavingexpert.com/discussion/comment/64869779#Comment_64869779

Your thread will be added there in January!

BlueWolf62126

Unfortunately, UKPC didn't fold and rejected my NTK appeal that used the template in the NEWBIES thread. Interestingly, it seems that their response was a template of their own because some aspects of their response to my appeal referenced things I didn't say or had slightly modified (and which they evidently ignored)!

I've done a bit of research from (fairly recent) POPLA appeals, and have put together the following (oh, sorry it's a bit long):

Re: UKPC PCN No. XYZ
POPLA Reference: XYZ


As the registered Keeper of the vehicle registered XYZ, I received an "invoice" from UK Parking Control Ltd (UKPC) requiring payment of a charge for the alleged contravention of parking without displaying a valid ticket/permit.

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

1. The charge is a penalty and not a genuine pre-estimate of loss.
2. No standing/authority to form contracts with motorists & No authority or standing to pursue these charges in their own name as creditor in the Courts.
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
4. Unclear and non-compliant signage forming no contract with the driver.

*************************

1. The charge is a penalty and not a genuine pre-estimate of loss.
£100 is a sum "plucked out of the air" by the Operator and it bears no relation to any loss. My proposition is that the £100 figure was chosen because - coincidentally - it happens to be the maximum figure the BPA feel is a "tolerable" amount to impose on motorists, when compared to PCNs issued by Councils on the street. There is no valid comparison with a private firm alleging "breach" in order to maximise their own profits vs. a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of their figure of £100.

UKPC's demand for me to pay this figure is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner. The BPA Code of Practice states:
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer."

UKPC asserts that the "charge" is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, UKPC have also refused to present me with a breakdown of these losses, and their reply to my request was vague and extremely unhelpful. These losses necessarily being a "pre-estimate" must by nature be already known to UKPC. If this figure is a genuine pre-estimate of loss as claimed, there can be no genuine reason, commercial or otherwise, for UKPC to withhold or refuse to provide these on request to me or anyone else. Yet as they are essentially refusing to provide a breakdown of their genuine pre-estimate of loss, I must contend that the PCN figure cannot be a genuine pre-estimate of loss.

Furthermore, the Operator's onus is to charge the maximum £100 regardless of the situation or circumstances: motorists can overstay by 10 minutes, overstay by 2 hours, not pay at all, or park incorrectly/inappropriately and they will be faced with the same £100 charge by UKPC. This is clearly not a genuine pre-estimate of any loss at all; if it was, the Operator could not charge this punitive figure in advance (as shown on their signage that I have personally viewed since receiving their Notice To Keeper letter), or indeed the same figure for every scenario. This is because a genuine pre-estimate of their losses should surely differ depending on the circumstances. For instance, overstaying by 2 hours would inevitably cause a greater loss than 10 minutes' overstay, yet UKPC go straight to charging the maximum amount anyway. Especially when it costs approximately £2 - £4 for a couple hours' parking, I simply fail to see how, for example, not paying the initial parking fee at the machine, can constitute a loss to the Operator that totals £100. If that is the case, then every time a customer pays £2 - £4 to park their car in a UKPC-managed car park, the Operator would make a loss of £96 - £98 each time! Their reasoning (or rather a lack of) for charging £100 as a genuine pre-estimate is clearly quite the oppose: it is completely commercially unjustified, and it is merely a tactic to profiteer and exploit as many motorists that the Operator can get away with. By definition, their drastic exaggeration of their "losses" here constitute a disguised penalty.

I require UKPC to explain their calculations behind this charge. My position is that, any version cannot be accepted as a genuine PRE-estimate. In fact it is a "post-estimate" of (arguable) "actual costs" after the event; figures totted up to match the charge, including fully-counted man-hours for "POPLA appeal work" when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an AVERAGE breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they "might" reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.

In the 2014 POPLA 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."

If UKPC present what they describe as a genuine pre-estimate of loss statement, I also require them to show documentary evidence regarding exactly when this "pre-estimate of loss" was discussed with the Landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put UKPC to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence... that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007... it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance... Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate... shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an 'in terrorem' sum to deter breach and as such is a penalty.''

I contend that the figure of £100 is a penalty clause in terrorem to deter breach; nor can it be commercially justified. On a similar case, POPLA Assessor Chris Adamson stated in June 2014 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 Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of 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.''


2. No standing/authority to form contracts with motorists & No authority or standing to pursue these charges in their own name as creditor in the Courts.
This Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non-compliant) signs and to post out "tickets" as a deterrent. Authority to merely "issue tickets" is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement "on behalf of" the principal, UKPC has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

A parking management company will need to have the proper legal authorisation to contract with the consumer on the Landowner's behalf. I believe there is no contract which entitles UKPC to pursue these charges in their own name as creditor in the Courts and therefore I contend that UKPC has no authority.

I put UKPC to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that UKPC can make contracts with drivers themselves and that they have full authority to pursue charges in the Courts in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows UKPC to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that UKPC can put up signs and "issue parking charges" would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.


3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA).
In order to pursue Keeper Liability under the POFA, UKPC must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the "Notice To Keeper" (NTK) as per paragraph 9, section 4 of the Act, which reads in part:

"(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must—
(b) inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i) the amount of the unpaid parking charges specified under paragraph (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;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so "given" for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose "working day" means any day other than a Saturday, Sunday or a public holiday in England and Wales."

The NTK fails due to the following reasons. The following points (A)-(E) may be observed as flaws in the Operator's NTK, making this non-compliant under the POFA 2012:

(A) The "period of parking" is not specified, only the time the car was seen by the parking attendant.
(B) It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
(C) It fails to describe any alleged unpaid parking charges "for the specified period of parking" (a period which was not specified). POFA requires that a NTK describes any "outstanding unpaid" charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as "unpaid by the driver" prior to the day the NTK was issued, because it only arises and could be described as "unpaid", if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for "breach" should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a "parking charge". The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper.
(D) It does not identify the creditor, who could be the Landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not "identify" them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never "the creditor". This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be properly identified with words to the effect that "the creditor is...".
(E) The NTK fails to show the arrangements for complaints and the geographical address of the client/Landowner, since this Operator is an agent. This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints.

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA 2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no keeper liability.

In this case the driver has not been identified so the charge has no legal basis to be enforced against me.


4. Unclear and non-compliant signage forming no contract with the driver.
This is a non-negotiated and totally unexpected third party "charge" foisted upon legitimate motorists who are not UKPC's customers and are not parties of equal bargaining power, nor are they even aware that any "contract" is possible or has been made. Therefore all terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. In this case, the driver maintains that no signs were seen in the immediate area. This is coupled with the fact that the Operator issued their PCN at 8:53pm on a December evening - clearly when it was dark and visibility understandably reduced.

Accordingly, I contend that any signs must have been unclear to the point that any core parking terms UKPC are relying on were not sufficiently prominent for the driver to discern before parking. Their signage also fails to comply with the BPA Code of Practice requirements. I put UKPC to strict proof of clear signs at the entrance and all around this car park and that such signage can be clearly seen from a reasonable distance, as well as read and understood in poor light, as in my case. Any photographic evidence must be taken at a similar time of day/light level, as in my case. I include copies of my own photographic evidence of the poor signage of this car park at a similar time of night; as you can see, the lighting across the car park is actually non-existent, so how can the driver be expected to see such signs - or consent - at all? Again, this is just a tactic for the Operator to unfortunately "catch out" drivers and claiming that the signs are there even though UKPC fail to light them up properly. UKPC's response to my first appeal to them - in which I enclosed the same photographic evidence I do here - was merely that their car park has "sufficient and clear signage. On the balance of probabilities, the signage ... was clearly seen and understood". I find this to be of blatant disregard to the obvious fact that the singage is in fact woefully inadequate and unclear; not to mention that "on the balance of probabilities" is a generic retort from UKPC in the hope that whatever they say is final.

Ergo, I contend that the signs in the car park in question (wording, position and clarity) do not comply and failed to properly warn/inform the driver of the terms and any consequences for "breach", as in the case of Excel Parking Services Ltd v Martin Cutts [2011]. Terms are only imported into a contract if they are clear and so prominent that the party "must" have known of it and agreed.

No reasonable person would have accepted such onerous parking terms and 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). Lord Denning continued: "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."


I therefore respectfully request the POPLA Assessor to consider my points and photographic evidence and that my appeal is upheld and the charge dismissed.

Yours faithfully,

...

Please can I get some feedback on this before I submit it?

Speaking of which - is it best to appeal to POPLA online, by post, or both?

Many thanks once again.