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CPM - POPLA appeal letter
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Spear
Posts: 7 Forumite
Hi all,
Thanks for the wealth of info on this board – much appreciated!
New here & not sure whether I have successfully managed to get this thread in the car parking location:cool:
Parking company – UK CPM
Alleged Incident – Failure to display a valid permit. This took place in a residential private car park with designated parking spaces for each flat. Authorisation to park in the bay assigned to the residential flat was given by the owner of the flat
I am now at Stage 3 – submitting a tweaked template letter to POPLA after the soft appeal to CPM was rejected. I would be ever so grateful if someone could cast an eye over the letter, in particular the wording in RED BOLD which is an addition the template. If letter is satisfactory I will submit. Thank you
Thank you in advance
Letter drafted thus far –
INSERT USUAL HEADING
1. No genuine pre estimate cost
a) The Charge is not a contractual fee – it is a disguised breach
On both the ‘’parking charge notice’’ (as described by the Operator) and the appeal rejection letter the Operator states the charge is levied ‘due to the breach of the stated conditions’ of parking.
I highlight a similar appeal against CPM where POPLA assessor Marina Kapour found -
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".
I contend the same applies to my case, and POPLA must show consistency where similar arguments are raised by appellants. The £100 demanded is punitive and unreasonable, is not a contractual fee. It is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit”. Consequently I contend and the BPA code of practise states, a charge for breach must be based on the genuine pre estimate of loss.
The Office of Fair Trading stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated a stipulation -
"will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is a penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
Christopher Adamson stated in a POPLA appeal against VCS Ltd stated:
"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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".
This case involves a private parking area for residents with allocated spaces and full authorisation for the vehicle to be parked in the allocated space, there is no loss to anyone.
As the charge in this case is the same lump sum charged for any alleged contravention or ‘breach’ (e.g. irrespective of whether the vehicle is parked for 10 minutes or 24 hours, has received permission from the individual entitled to authorise parking in this designated parking bay etc) it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine
pre estimate of loss in this case.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner. I would also refer them to the Unfair Terms in Consumer Contract Regulations, which states parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
I require the Operator to submit a full breakdown (including full amounts) of their genuine pre estimate of loss stated to illustrate how their loss was calculated in this particular parking area and for this particular alleged breach.
The Operator has stated the following costs were incurred at the time of issuing the Penalty Charge Notice in this case –
• Staff wages and salaries including Employers national insurance
• Supervisory staff and vehicles, training, uniforms
• Fuel expenses
• Erection and maintenance of the site signage
• Cost of appeal adjudicator staff
• POPLA Appeals Fee
Judge Charles Harris QC in A Retailer v Ms B stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The 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’’
In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said "the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".
The operator has stated loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach.
Consequently the Operator has produced a list of costs where a substantial proportion of costs are general operational costs, and not losses consequential to the alleged breach. The operator would be in the same position whether or not any alleged breaches occur
POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and is not commercially justified or proved to be a genuine pre estimate of loss. I respectfully request my appeal is upheld and the charge dismissed.
2. Contract with Landowner
The Operator does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Should a basic contract be produced mentioning parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3. Inadequate Signage
The BPA code of practice October 2014 clearly states "Specific parking terms signage tells drivers what [the] terms and conditions are, including parking charges. [The Operator] 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".
I assert that being unable to read the detail on the sign visible on entry and parking, breaches this code. There are no signs in the relevant location on the development. I therefore require the Operator submit evidence of the signage in the form of site maps and photographs, clearly indicating the location and height of said signage at the time of the alleged breach.
I have photographic evidence for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4. The alleged contravention did not occur
The vehicle was parked in the designated bay with full permission and authority from the designated owner of the parking bay, at the time of the alleged contravention/breach. This verbal contract is relied on and supersedes any terms and conditions on the signage.
5. Non compliant Formal Demand Letter - no keeper liability established under POFA 2012
The ‘Formal Demand Letter’ (as described by the Operator) does not constitute a Notice to Keeper under Schedule 4 of the Protection Of Freedoms Act 2012 (POFA) and as such no keeper liability has been established. In particular the Operator has-
• Failed to repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f). [Para 8(2)(c)]
• Failed to specify whether the parking charges specified in notice to driver as required by paragraph 7(2)(c) has been paid in part and specify the amount that remains unpaid in the notice to keeper [Para 8 (2)(d)]
• Failed to inform me as keeper of any discount offered for prompt payment [Para 8(2)(g)]
• Failed to inform me as keeper of any arrangements for the resolution of disputes or complaints that are available under independent adjudication or arbitration [Para 8 (8)(b)]
• Failed to identify the creditor [Para 8(2) (h)]
The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a NTK is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory NTK wording will result in no 'keeper liability'.
As such the Operator has not provided a valid Notice to Keeper within the 28 day period as specified by Schedule 4 of POFA 2012
6. Failure to provide inform of POPLA appeal process (BPA Code of Practice)
By virtue of s.22 BPA guidelines October 2014, the Operator is required to inform of ’the arrangements for independent appeal’ and ’at what stage an independent appeal to POPLA becomes available’. The Formal Demand omits this information. In addition s.22.12 states ’If you [the Operator] reject an appeal you must tell the motorist how to make an appeal to POPLA’. The Operator has failed to inform me how I may make an appeal to POPLA in the appeal rejection letter.
Should CPM decides to rebut my challenge I put them to strict proof of the contrary of this assertion, to which I am entitled to reply.
Kind Regards
XXXXX
Thanks for the wealth of info on this board – much appreciated!
New here & not sure whether I have successfully managed to get this thread in the car parking location:cool:
Parking company – UK CPM
Alleged Incident – Failure to display a valid permit. This took place in a residential private car park with designated parking spaces for each flat. Authorisation to park in the bay assigned to the residential flat was given by the owner of the flat
I am now at Stage 3 – submitting a tweaked template letter to POPLA after the soft appeal to CPM was rejected. I would be ever so grateful if someone could cast an eye over the letter, in particular the wording in RED BOLD which is an addition the template. If letter is satisfactory I will submit. Thank you
Thank you in advance
Letter drafted thus far –
INSERT USUAL HEADING
1. No genuine pre estimate cost
a) The Charge is not a contractual fee – it is a disguised breach
On both the ‘’parking charge notice’’ (as described by the Operator) and the appeal rejection letter the Operator states the charge is levied ‘due to the breach of the stated conditions’ of parking.
I highlight a similar appeal against CPM where POPLA assessor Marina Kapour found -
"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".
I contend the same applies to my case, and POPLA must show consistency where similar arguments are raised by appellants. The £100 demanded is punitive and unreasonable, is not a contractual fee. It is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100 is being sought for an alleged breach of the parking terms namely “parking without displaying a valid permit”. Consequently I contend and the BPA code of practise states, a charge for breach must be based on the genuine pre estimate of loss.
The Office of Fair Trading stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated a stipulation -
"will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is a penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".
Christopher Adamson stated in a POPLA appeal against VCS Ltd stated:
"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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".
This case involves a private parking area for residents with allocated spaces and full authorisation for the vehicle to be parked in the allocated space, there is no loss to anyone.
As the charge in this case is the same lump sum charged for any alleged contravention or ‘breach’ (e.g. irrespective of whether the vehicle is parked for 10 minutes or 24 hours, has received permission from the individual entitled to authorise parking in this designated parking bay etc) it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine
pre estimate of loss in this case.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner. I would also refer them to the Unfair Terms in Consumer Contract Regulations, which states parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.
I require the Operator to submit a full breakdown (including full amounts) of their genuine pre estimate of loss stated to illustrate how their loss was calculated in this particular parking area and for this particular alleged breach.
The Operator has stated the following costs were incurred at the time of issuing the Penalty Charge Notice in this case –
• Staff wages and salaries including Employers national insurance
• Supervisory staff and vehicles, training, uniforms
• Fuel expenses
• Erection and maintenance of the site signage
• Cost of appeal adjudicator staff
• POPLA Appeals Fee
Judge Charles Harris QC in A Retailer v Ms B stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The 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’’
In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said "the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".
The operator has stated loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach.
Consequently the Operator has produced a list of costs where a substantial proportion of costs are general operational costs, and not losses consequential to the alleged breach. The operator would be in the same position whether or not any alleged breaches occur
POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and is not commercially justified or proved to be a genuine pre estimate of loss. I respectfully request my appeal is upheld and the charge dismissed.
2. Contract with Landowner
The Operator does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Should a basic contract be produced mentioning parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3. Inadequate Signage
The BPA code of practice October 2014 clearly states "Specific parking terms signage tells drivers what [the] terms and conditions are, including parking charges. [The Operator] 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".
I assert that being unable to read the detail on the sign visible on entry and parking, breaches this code. There are no signs in the relevant location on the development. I therefore require the Operator submit evidence of the signage in the form of site maps and photographs, clearly indicating the location and height of said signage at the time of the alleged breach.
I have photographic evidence for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4. The alleged contravention did not occur
The vehicle was parked in the designated bay with full permission and authority from the designated owner of the parking bay, at the time of the alleged contravention/breach. This verbal contract is relied on and supersedes any terms and conditions on the signage.
5. Non compliant Formal Demand Letter - no keeper liability established under POFA 2012
The ‘Formal Demand Letter’ (as described by the Operator) does not constitute a Notice to Keeper under Schedule 4 of the Protection Of Freedoms Act 2012 (POFA) and as such no keeper liability has been established. In particular the Operator has-
• Failed to repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f). [Para 8(2)(c)]
• Failed to specify whether the parking charges specified in notice to driver as required by paragraph 7(2)(c) has been paid in part and specify the amount that remains unpaid in the notice to keeper [Para 8 (2)(d)]
• Failed to inform me as keeper of any discount offered for prompt payment [Para 8(2)(g)]
• Failed to inform me as keeper of any arrangements for the resolution of disputes or complaints that are available under independent adjudication or arbitration [Para 8 (8)(b)]
• Failed to identify the creditor [Para 8(2) (h)]
The requirements of Schedule 4 of POFA 2012 and the mandatory detail and wording to ensure a NTK is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory NTK wording will result in no 'keeper liability'.
As such the Operator has not provided a valid Notice to Keeper within the 28 day period as specified by Schedule 4 of POFA 2012
6. Failure to provide inform of POPLA appeal process (BPA Code of Practice)
By virtue of s.22 BPA guidelines October 2014, the Operator is required to inform of ’the arrangements for independent appeal’ and ’at what stage an independent appeal to POPLA becomes available’. The Formal Demand omits this information. In addition s.22.12 states ’If you [the Operator] reject an appeal you must tell the motorist how to make an appeal to POPLA’. The Operator has failed to inform me how I may make an appeal to POPLA in the appeal rejection letter.
Should CPM decides to rebut my challenge I put them to strict proof of the contrary of this assertion, to which I am entitled to reply.
Kind Regards
XXXXX
0
Comments
-
I have only skim read it read it, but am sure that win or lose, the end result will be the same, you will pay nothing.
I would suggest that you remove reference to cases which do not involve residential parking, Dunlop is irrelevant, and google "Own space" + "parking" to see what case law exists.You never know how far you can go until you go too far.0 -
I reckon that will win and is such a good example POPLA appeal I will add it to the links in 'How to win at POPLA' in the Newbies thread.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
I have only skim read it read it, but am sure that win or lose, the end result will be the same, you will pay nothing.
I would suggest that you remove reference to cases which do not involve residential parking, Dunlop is irrelevant, and google "Own space" + "parking" to see what case law exists.
Thanks for the response The Deep. I have searched quite a bit for residential parking case law since Sunday and cannot find anything.
I've done a google search, used BAILLI, tried the parking & traffic appeals service and flipped through the POPLA Appeals thread on the board - AND NO LUCK!
Any tips?
Will the cases mentioned in my appeal letter be detrimental to winning the case ?0 -
Have you got your POPLA appeal away yet? Whatever you do, don't miss their deadline. Coupon-mad (one of the country's foremost private parking experts) has already 'signed it off', send it.
Don't miss the deadline by chasing shadows, or attempting to gild the lily.Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
umkomass Im still within the deadline, however you are correct I will be submitting this asap.
Here is my REVISED DRAFT with main amendments in blue - Once Okd here I will be firing this off! Thank you to you all. (Glad it has made the sticky thread, hopefully it can help others too!)
1. No genuine pre estimate cost
a) The Charge is for damages disguised as a contractual sum
The nature of this charge is discernible based on the following –
(i)The Operator has repeatedly stated on the Penalty Charge Notice (PCN), Formal Demand Letter and Appeal Rejection letter that the PCN has been issued due to a ‘breach of the Terms and Conditions of parking’ which is ‘not displaying a valid permit’. This clearly evidences the claim is for a breach of contract and not a contractually agreed amount.
(ii) If the charge sought were for an agreed contractual sum, the Operator would have issued an invoice and not a penalty charge notice
(iii) By virtue of HMRC a Contractual sum is liable for VAT. It is a legal requirement to state the percentage and the amount of VAT due on any transaction for an amount over £50. Conversely damages are not liable for VAT. The Operator has not alluded to nor provided any VAT information in the PCN, Formal Demand Letter or Appeal Rejection letter nor have they provided a parking VAT invoice.
(iv)The Operator provides no provision to pay the sum of £100 at the location, therefore it is not a genuine offer to pay that amount and therefore not recoverable
(v)The terms stipulated on the signage state ‘Terms of parking without permission...£100 per day.’ An alleged contractual sum cannot be demanded where permission by the owner of the designated bay (which is protected by security coded gates) has been granted, irrespective of whether this permission has been granted verbally or in writing. Therefore no contractual sum can be sought by a third party.
(vi) In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty), CEL v McCafferty, the judge ruled the sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.
In light of the above I strongly contend the sum sought is that of damages and not a contractual sum.
b) The Charge is Not a Genuine Pre Estimate of Loss
The charge of £100, being sought for an alleged breach of the parking terms namely ‘parking without displaying a valid CPM permit’, is disproportionately high. Consequently I contend and the BPA code of practise states, a charge for breach must be based on the genuine pre estimate of loss. The Office of Fair Trading has stated to the BPA that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
Christopher Adamson stated in a POPLA appeal against VCS Ltd stated:
‘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... that a charge for damages must be compensatory in nature rather than punitive’
The case at hand involves a private parking area for residents with allocated spaces. The vehicle was parked in the allocated bay with full authorisation. Therefore is no loss to anyone.
As the charge in this case is the same lump sum charged for any alleged ‘breach’ (e.g. irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this designated parking bay etc) it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre estimate of loss in this case.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner. I would also refer them to the Unfair Terms in Consumer Contract Regulations, which states parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there. I remind them that the amount in this case is nothing.
The Operator has stated in their Appeal Rejection letter, the costs they deem to be a genuine pre-estimate of loss incurred at the time of issuing the Penalty Charge Notice in this case. This has included -
• Staff wages and salaries including Employers national insurance
• 24 hours availability customer service and telephone expenses
• Supervisory staff and vehicles, training, uniforms, ad hoc mobile patrols
• Parking payment and enforcement equipment to include hand held devices, cameras etc
• Fuel expenses
• Erection and maintenance of the site signage
• Cost of appeal adjudicator staff
• POPLA Appeals Fee
• Public insurance liability
• Data protection costs
This submission is to be relied on. A substantial proportion of the costs stated by the Operator are business costs and not obviously a loss arising. As stated in POPLA key case by adjudicator Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013) -
‘A genuine pre-estimate of loss is just what it says. The sum should represent a loss, not a profit. It is not the business overheads of the operator.’
In relation to staffing costs etc Judge Charles Harris QC in A Retailer v Ms B stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The 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’’
In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said "the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".
The operator has stated loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.
Additionally Henry Michael Greenslade in SBV v KMJ (POPLA Nov 2013) states -
‘On the face of it, fees incurred by an operator in an appeal to POPLA might be a recoverable loss but the whole ethos of the appeals system is that there is no charge to the motorist’. I therefore contend there is to be no charge to the Motorist for this and cannot be included as a loss. It is also not a reasonable cost to be incurred at the time the PCN was issued.
This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the alleged breach.
Consequently the Operator has produced a list of costs where a substantial proportion of costs are general operational costs, and not losses consequential to the alleged breach. The operator would be in the same position whether or not any alleged breach had occurred.
POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and is not commercially justified or proved to be a genuine pre estimate of loss. I respectfully request my appeal is upheld and the charge dismissed.
2. Contract with Landowner
The Operator does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;
a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Should a basic contract be produced mentioning parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.
I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.
3. Inadequate Signage
The BPA code of practice October 2014 clearly states "Specific parking terms signage tells drivers what [the] terms and conditions are, including parking charges. [The Operator] 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".
I assert that being unable to read the detail on the sign visible on entry and parking, breaches this code. There are no signs in the relevant location on the development. I therefore require the Operator to submit evidence of the signage in the form of site maps and photographs, clearly indicating the location and height of said signage at the time of the alleged breach.
I have photographic evidence for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.
4. The alleged contravention did not occur
The vehicle was parked in the designated bay with full permission and authority from the designated owner of the parking bay, at the time of the alleged breach. This verbal contract is relied on and supersedes any terms and conditions on the signage.
5. Non compliant Formal Demand Letter - no keeper liability established under POFA 2012
The ‘Formal Demand Letter’ (as described by the Operator) does not constitute a Notice to Keeper under Schedule 4 of the Protection Of Freedoms Act 2012 (POFA) and as such no keeper liability has been established. In particular the Operator has-
• Failed to repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f). [Para 8(2)(c)]
• Failed to specify whether the parking charges specified in the notice to driver as required by paragraph 7(2)(c) has been paid in part and specify the amount that remains unpaid in the notice to keeper [Para 8 (2)(d)]
• Failed to inform me as keeper of any discount offered for prompt payment [Para 8(2)(g)]
• Failed to inform me as keeper of any arrangements for the resolution of disputes or complaints that are available under independent adjudication or arbitration [Para 8 (8)(b)]
• Failed to identify the creditor [Para 8(2) (h)]
The requirements of Schedule 4 of POFA2012 and the mandatory detail and wording to ensure a NTK is compliant are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out the mandatory NTK wording will result in no 'keeper liability'.
As such the Operator has not provided a valid Notice to Keeper within the 28 day period as specified by Schedule 4 of POFA 2012
6. Failure to inform of POPLA appeal process (BPA Code of Practice)
By virtue of s.22 BPA guidelines October 2014, the Operator is required to inform of ’the arrangements for independent appeal’ and ’at what stage an independent appeal to POPLA becomes available’. The Formal Demand Letter
omits this information. In addition s.22.12 states ’If you [the Operator] reject an appeal you must tell the motorist how to make an appeal to POPLA’. The Operator has failed to inform me how I may make an appeal to POPLA in the appeal rejection letter.
Should CPM decides to rebut my challenge I put them to strict proof of the contrary of this assertion, to which I am entitled to reply.
In consideration of the above I contend the parking charge sought is a sum by way of damages and the damages sought on this particular occasion do not substantially amount to a genuine pre-estimate of loss or fall within commercial justification.
0 -
Coupon-mad wrote: »I reckon that will win and is such a good example POPLA appeal I will add it to the links in 'How to win at POPLA' in the Newbies thread.
Thanks Coupon Mad. I have made some adjustments, namely -
- strengthened the damages or contractual sum argument
- removed Dunlop
- Mentioned POPLA key case in relation to genuine pre-estimate of loss
Any final words on this?
Many thanks0 -
sent. will be sure to provide an update
thank you0 -
Looks like a similar appeal to the one I'll be making as per my original thread https://forums.moneysavingexpert.com/discussion/5111049
How did you get on? I've not seen any more recent posts and didn't spot anything in the POPLA appeals thread.0 -
Hello,
I've followed this thread as I had an appeal in with popla regarding UK CPM. It took them 4 months to initially refuse my appeal before this final one which I'm pleased to say I won. The reason stated is that the operator hasn't provided any evidence. On the initial rejection it was 4 pages of bluff and bluster and ended with how they would vigorously pursue me.
They've already passed it over to a debt collector before the appeal so I'm not sure what I'll do next with them but thanks to all who contribute on here as it really does work.0 -
Hello,
I've followed this thread as I had an appeal in with popla regarding UK CPM. It took them 4 months to initially refuse my appeal before this final one which I'm pleased to say I won. The reason stated is that the operator hasn't provided any evidence. On the initial rejection it was 4 pages of bluff and bluster and ended with how they would vigorously pursue me.
They've already passed it over to a debt collector before the appeal so I'm not sure what I'll do next with them but thanks to all who contribute on here as it really does work.
Even after you won at POPLA ?
Whos the 'debt company' with UKCPM out of interest?Mike172 vs. UKCPM
Won:20
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