Southampton Premier Park next stage POPLA appeal

Ryan_Bryan

Who the hell can tell the designated areas to park when the place is covered in leaves that way. However these are probably considered minor details. Although I'd add these photos to your POPLA appeal and state that the car park was in the same condition during the alleged contravention. The main point of appeal has to be the ticket. A ticket was purchased meaning no loss to the landowner.

Coupon-mad

You have redacted the dates, please give us the timeline of these documents and show us the back of the Notice to Keeper 'reminder' or is it blank?

cody2010

the windscreen PCN (&ticket purchased) was 23/9/2014

the first reminder letter - the one I called notice to keeper - is dated 27/10/2014

I posted our soft reply to Premier Park 21/11/2014
their reply was dated 3/12/2014 - I haven't scanned this yet
the back of the first reminder - or notice to keeper is
hxxp://s1378.photobucket.com/user/philbannad/media/PCNreminderNtKpg2_zps61196cf4.jpg.html

Coupon-mad

OK so I can see several issues for the PPC, with a lack of prescribed wording needed from paragraph 8 of Schedule 4 of the POFA. And not just that it 'fails to ID the creditor' (boooorinnnggg!) as some lazy posters just shove in and don't look at the other words from para 8!

Have a look at the windscreen ticket POPLA appeal examples in post #3 of the newbies thread and find one with a typical list of flaws as regards the NTK wording when compared to paragraph 8 (there may be a Premier Park version there already under 'How to win at POPLA'). If not then you can use what you find written for other PPC POPLA appeals, and adapt it to suit.

cody2010

Hi, thanks for the assistance. The handful or so Premier Park cases on the POPLA thread have all been based on the GPEOL statement. From the comments here I have included reference to the poor bay markings and that Premier Park have been known to fail to provide evidence to the appellant. I have left out reference of the PP worker not advising the driver when they were a couple of metres away.


I have made reference to the £4 ticket purchased, but was wondering whether that would hint to PP & they would somehow factor it into the GPEOL statement. Maybe I should edit it to simply say purchased a ticket to park rather than the amount.


Should I mention we have observed other vehicles in the same spot ? We have photos from Tuesday (the day the driver visits the college next door to the car park) 2 & 4 weeks later. As evidence it is not clear this spot is a no parking area.


I am not sure about item (3), will have to check again what the opening signage is like.


After all that, this is what I have as the POPLA appeal. Don't worry about being too harsh if it doesn't add up.




RE: POPLA CODE- XXXXXXXXXX

Parking Charge Number (PCN): XXXXXXXX
Vehicle Reg: XXXXXXXXX
Operator: Premier Park Ltd



Dear POPLA,


I am the registered keeper of the above vehicle. I received a Notice to Keeper (NTK) from Premier Park dated 27/10/2014 for a parking charge of £100 issued on [DATE] at 09:58 for a breach of contractual terms and conditions by the driver of the vehicle.

I denied all liability to Premier Park on 20/11/2014. Following Premier Park’s rejection of my submission on 03/12/2014 I now wish to appeal the above parking charge issued by Premier Park for “Parking in No Parking area”. I wish to appeal on the grounds numbered 1 - 6 as outlined below:

1. No genuine pre-estimate of loss;


2. The signage was inadequate, unclear & non-compliant;


3. The signage was not seen before parking - so there was no valid contract formed between Premier Park and the driver;


4. No standing or authority to pursue charges or form any contract with drivers;


5. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012;


6. Unreasonable/Unfair Terms





I have been made aware of the fact that Premier Park have been known to fail to send a copy of their evidence to the appellant on several occasions. I therefore hope that POPLA will insist that Premier Park to send their evidence to me in good time to rebut their claims. Further detail on the 6 grounds of appeal are now shown below.



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



Premier Park’s charge represents liquidated damages for breach, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable. Premier Park cannot demonstrate any initial loss caused by the parking event, indeed the driver purchased a £4 ticket on the day the PCN was issued. Even if they do try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.

A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, '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.


In fact the charge is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he 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."




2) The signage was inadequate, unclear & non-compliant

The PCN states that the vehicle was for “Parking in a No Parking area”. The occupant(s) of the vehicle at the time of the breach explained that the “No Parking” sign for the space parked in was non-existent. Furthermore, it was right next to the ticket machine, and next to some other parked vehicles, and was in their view an invitation to park there.


Whilst there may at one time have been clearly marked out bays, over time the white markings have worn away and no longer visible. The autumn leaf fall had started making any remaining bay markings even more unclear.





3) The signage was not seen before parking - so there was no valid contract formed between Premier Park and the driver



A lack of signs at the entrance to a car park, and unclear wording, creates no contract. Since receiving the NTK, I sought out and tried to read the sign which has tiny font, so that the words are barely readable. The sign is not prominent and not reflective. I put Premier Park to strict proof otherwise; as well as a site map they must show photos.


A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. Premier Park’s signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance.


Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Premier Park has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.








4) No standing or authority to pursue charges or form any contract with drivers

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf. Premier Park have not provided me with a copy of this contract. Therefore I believe there is no contract which entitles Premier Park to pursue these charges in their own name as creditor in the Courts, and therefore I contend that Premier Park has no authority.

I put Premier Park to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. Even if a basic site agreement sheet is produced and mentions the right to 'issue PCNs' this shows no standing or right to litigate. The lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Premier Park and the landowner/landholder and would contain nothing that Premier Park can lawfully use in their own name as a mere agent, that could impact on a third party customer.


5) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

The following points (A)-(D) may be observed on the Notice to Keeper, making this a non-compliant Notice to Keeper under the POFA 2012, Schedule 4 paragraph 8:



(A) The 'period of parking' is not shown, only the time of issue of an alleged Parking Charge Notice (as required by POFA 12 Schedule 4 paragraphs 8(2)(a) and 8(2)(b));
(B) It specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking (in contravention of POFA 12 Schedule 4 paragraph 8(2)(d));
(C) The Notice is not accompanied by any evidence that a Notice to Driver was served, merely a statement that one was served. There is also no evidence that the vehicle was in a No Parking area (as required by POFA 12 Schedule 4 paragraph 8(7));


(D) The Notice fails to include specific identification as to who “the Creditor” may be. This is misleading and not compliant in regard to Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Premier Park there is no specific identification of the Creditor, who may, in law, be Premier Park or the landowner, a managing agent for the land, a debt collector or indeed some other unidentified party. The POFA requires a Notice to Keeper to have words to the effect that “The Creditor is…” and this Notice does not.

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 Notice to Keeper is compliant. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant Notice to Keeper is prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory Notice to Keeper wording means there is no 'keeper liability'.





6) Unreasonable/Unfair Terms
I would assert that the charge being claimed by APCOA is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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 the 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 barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event.






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

Yours faithfully,

Coupon-mad

Point #6 mentions APCOA, but in fact I would remove the whole #6 paragraph as it won't be the winning POPLA appeal point so isn't needed at all. I would add back in the stuff you have removed from point #1 (GPEOL) because it makes little sense to talk about staff not being 'significantly diverted' unless you explain that point, using the QC's decision in 'A Retailer v Ms B'. You can leave in that they paid £4, that's fine. But I would remove this sentence as there really was no loss: ''Even if they do try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum.''

Then your points 2 and 3 should be amalgamated into one point about signage and lack of lines/nothing to set that car-sized parking area as any different from the others! And you can't relay say signs were not seen which is what the heading says (not quite right for a P&D car park where the driver did read enough to know to pay). And as the driver's main problem was the lack of lines I wouldn't focus as much on the signs, you should be making it very clear to POPLA about the lack of lines at that parking space.

cody2010

Hi, I have updated for all you comments, and added a further paragraph on the bay markings, hope the comments there are ok.


The entrance signs do not seem to meet Appendix B. They certainly do not explicitly say "Managed by" which it says is required. It is a bit of an odd layout so they may have got BPA approval. There is a basic sign at the road entrance, which has the big P, "Pay & Display", "OPEN" & and arrow pointing direction up the driveway. No AOS logo here. 6 or so metres up the driveway is another sign above head height (for me) with "WARNING PRIVATE LAND", another big P, text about parking restrictions & see additional signs, Premier Park & address & phone number, then 5 logos - a camera, AOS, PP, BPA & CCTV. Then at the end of the drive there is the turning to the P&D area. This one I have taken a poor quality photo so can't read the bottom. But the rest says "Welcome to ST MARY'S pay & display car park" then the 2 lines I can't read. Even combining all 3 signs I'm not sure appendix B is met.


Anyway, back to the POPLA appeal. In the grounds to appeal, I tick 3, but not the "vehicle was stolen" one from what I have seen on other threads. After amendments the appeal is now looking like this:




RE: POPLA CODE- XXXXXXXXXX

Parking Charge Number (PCN): XXXXXXXX
Vehicle Reg: XXXXXXXXX
Operator: Premier Park Ltd



Dear POPLA,


I am the registered keeper of the above vehicle. I received a Notice to Keeper (NTK) from Premier Park dated 27/10/2014 for a parking charge of £100 issued on [DATE] at 09:58 for a breach of contractual terms and conditions by the driver of the vehicle.

I denied all liability to Premier Park on 20/11/2014. Following Premier Park’s rejection of my submission on 03/12/2014 I now wish to appeal the above parking charge issued by Premier Park for “Parking in No Parking area”. I wish to appeal on the grounds numbered 1 - 4 as outlined below:

1. No genuine pre-estimate of loss;
2. The signage was inadequate, unclear & non-compliant - so there was no valid contract formed between Premier Park and the driver;
3. No standing or authority to pursue charges or form any contract with drivers;
4. The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012.



I have been made aware of the fact that Premier Park have been known to fail to send a copy of their evidence to the appellant on several occasions. I therefore hope that POPLA will insist that Premier Park do send their evidence to me in good time to rebut their claims. Further detail on the 4 grounds of appeal are now shown below.

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

Premier Park’s charge represents liquidated damages for breach, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable. Premier Park cannot demonstrate any initial loss caused by the parking event, indeed the driver purchased a £4 ticket on the day the PCN was issued. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.

A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, '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.


Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my 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’’

xxx .....farrarsbuilding.co.uk/cms...-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.

Further, if Premier Park claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put Premier Park to strict proof that a GPEOL was ever discussed and decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.


In fact the charge is a 'post-estimate' after the event, of figures designed to match the charge. Indeed, in the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he 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."

2) The signage was inadequate, unclear & non-compliant - so there was no valid contract formed between Premier Park and the driver



The PCN states that the vehicle was for “Parking in a No Parking area”. The occupant(s) of the vehicle at the time of the breach explained that the “No Parking” sign for the space parked in was non-existent. Furthermore, it was right next to the ticket machine, and next to some other parked vehicles, and was in their view an invitation to park there.


Whilst there may at one time have been clearly marked out bays, over time the white markings have worn away and no longer visible. The autumn leaf fall had started making any remaining bay markings even more unclear.


It was the first time the driver had used the car park. They attend the college next door to the car park, but only on a Tuesday. For each of the following 4 Tuesdays after receiving the PCN, they visited the car park on foot and observed a vehicle parked at the same spot they had on each occasion. They did take photographs but only on 2 occasions. These photographs are attached as evidence as I feel that they show the bay markings are not sufficiently clear, and this poor marking is not making it clear the area is a No Parking area and is leading to vehicles parking there regularly.



A lack of signs at the entrance to a car park, and unclear wording, creates no contract. Since receiving the NTK, I sought out and tried to read the sign which has tiny font, so that the words are barely readable. The sign is not prominent and not reflective. I put Premier Park to strict proof otherwise; as well as a site map they must show photos.


A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. Premier Park’s signs in this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance.


Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Premier Park has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.


3) No standing or authority to pursue charges or form any contract with drivers

A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf. Premier Park have not provided me with a copy of this contract. Therefore I believe there is no contract which entitles Premier Park to pursue these charges in their own name as creditor in the Courts, and therefore I contend that Premier Park has no authority.

I put Premier Park to strict proof by showing a copy of the contemporaneous and unredacted contract with the landowner. Even if a basic site agreement sheet is produced and mentions the right to 'issue PCNs' this shows no standing or right to litigate. The lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Premier Park and the landowner/landholder and would contain nothing that Premier Park can lawfully use in their own name as a mere agent, that could impact on a third party customer.


4) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012

The following points (A)-(D) may be observed on the Notice to Keeper, making this a non-compliant Notice to Keeper under the POFA 2012, Schedule 4 paragraph 8:



(A) The 'period of parking' is not shown, only the time of issue of an alleged Parking Charge Notice (as required by POFA 12 Schedule 4 paragraphs 8(2)(a) and 8(2)(b));
(B) It specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking (in contravention of POFA 12 Schedule 4 paragraph 8(2)(d));
(C) The Notice is not accompanied by any evidence that a Notice to Driver was served, merely a statement that one was served. There is also no evidence that the vehicle was in a No Parking area (as required by POFA 12 Schedule 4 paragraph 8(7));


(D) The Notice fails to include specific identification as to who “the Creditor” may be. This is misleading and not compliant in regard to Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Premier Park there is no specific identification of the Creditor, who may, in law, be Premier Park or the landowner, a managing agent for the land, a debt collector or indeed some other unidentified party. The POFA requires a Notice to Keeper to have words to the effect that “The Creditor is…” and this Notice does not.

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 Notice to Keeper is compliant. A Notice to Keeper is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant Notice to Keeper is prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory Notice to Keeper wording means there is no 'keeper liability'.

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

Yours faithfully,




attaching as evidence photos of:
ticket purchased by driver on the day;
the area parked in;
areas next it with unclear markings;
2 photos of cars parked in the same area.




Should I expand on the signage not meeting appendix B after my comments at the start ? Or is the above seems sufficient enough?

Coupon-mad

I wouldn't expand on it further, I think submit that as it is. Keep an eye out for an email from Premier Park, with their POPLA evidence pack, and read it and pick holes in it, then email POPLA your final rebuttal at that stage. If unsure about any of the 'evidence' then show us a copy of any page that you are struggling to rebut. POPLA are on their Xmas break now but submit it online anyway - it will all be sorted out by February!

cody2010

Hi, I heard back from POPLA yesterday, and they have allowed the appeal.
I shall put something on the POPLA decisions shortly.


Ryan Bryan may like to know that Premier indeed did not send me any evidence. However, they also did not send anything to POPLA, and that was the reason for allowing the appeal.


"Reasons for the Assessor’s Determination




[FONT=Century Gothic,Century Gothic][FONT=Century Gothic,Century Gothic]It is the Appellant’s case that the parking charge notice was issued incorrectly.


The Operator has not produced a copy of the parking charge notice, nor any evidence to show a breach of the conditions of parking occurred, nor any evidence that shows what the conditions of parking, in fact, were.


Accordingly I have no option but to allow the appeal. "
[/FONT]

[/FONT]Many thanks for all your advice on this, it is appreciated.

Ryan_Bryan

Just caught up with this one Cody. Excellent news. Well done for not giving in to the scam. Take that Premier.:rotfl: