Virgin Active - MET parking 1st appeal Rejected and received POPLA code

TGL

As above, I have had my initial appeal to MET rejected and would be grateful for assistance in drafting the appeal to POPLA


I have read the posts here forums.moneysavingexpert.com/showthread.php?p=62180281&posted=1 and the specific drafts for MET appeals. However, I had already appealed to the PCN before noticing this website and have possible shot myself in the foot with the initial appeal.


In the initial appeal I have advised that I was the driver of the vehicle and that the Parking Permit was displayed on the rear parcel shelf of the vehicle. See picture attached for wording on signage


s230807631.!!!!!!!!!!!!!!!!!!! / Virgin_Active_Met.jpg


The reason for my appeal is that I am a member of the gym and do have a valid parking permit, plus there was only one other car in that section of the car park at the time. I realise from the Newbie posts, that the reasons for the appeal are nor relevant but have added in to explain why I feel disgruntled.


If you could assist with the tailored wording for the appeal, I would be very grateful


I am looking to adapt this but remove the ANPR details as this doesn't seem relevant? the photographic evidence was via hand held camera. Incidentally this shows a parking notice on the vehicle but none was present on the vehicle when I returned - it was only a month later when I received a PCN that I realised I had received a ticket


forums.moneysavingexpert.com/showthread.php?t=4865624

TGL

As a newbie I cannot post the image of the Parking Notice - please advise if you need this typed out

Coupon-mad

No need, I have tweaked this one from a previous winning POPLA appeal, for you to use:




RE: POPLA CODE- XXXXXXXXXX

Parking Charge Number (PCN): XXXXXXXX
Vehicle Reg: XXXXXXXXX
Operator: MET Parking

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

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

1. Not a genuine contractual fee nor genuine pre-estimate of loss
The demand is a punitive amount that was not a contractually agreed parking tariff and bore no relationship to any loss. The Operator would have been in the same position had the parking charge notice not been issued, because the car had a permit very obviously on display on the rear parcel shelf; no doubt the employee saw it and carefully avoided taking a photograph of it. Also, no 'PCN' was present on the vehicle at all - it was only a month later when I received a postal Notice that I realised the car had apparently had a notorious 'fake PCN' from MET. A photo from MET shows a yellow envelope on the windscreen but this was presumably then removed by the employee to avoid confrontation, because it wasn't there when the driver returned.

In any case, the Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. I require the Operator to provide a detailed breakdown of their loss and on what basis this can be their loss at all, when the car was parked with a valid permit. The Office of Fair Trading has stated to the BPA Ltd that ''a parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists''.

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

Judge Charles Harris QC in 'A Retailer v Ms B' stated:

"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The 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’’

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

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

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

''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''


2. No contract assigning rights to the Operator to enforce charges in the courts contracts or form their own contracts with drivers
The parking notice states that it has been served on behalf of the landowner. I assert that the Operator does not have the legal status nor assigned right to pursue parking charge notices in the courts nor to make contracts with drivers. I therefore require the Operator to supply:

• A copy of the current contract with the landowner (and if their contract is merely with another agent, or indeed merely the Gym, who do not own the land, then I put MET to strict proof of their rights to form contracts having been authorised from the landowner).
• A copy of the wording of the current permit scheme and a document where Gym members were advised which is the 'right way' or 'right place' to display these permits (because members were not advised of this!).

Furthermore, I require that the Operator demonstrate that they have the right to pursue parking charge notices in the courts and to specifically make contracts with drivers in their own right, rather than this remaining the gift of this landowner. I am not merely asking for proof that this Operator can 'issue PCNs' of course. Anyone can issue a PCN on a windscreen - a caretaker or cleaner could do that but it would not automatically confer them any locus standi to demand sums of money for alleged breach. Hence I need to see the contract itself, not a witness statement, not a site agreement sheet.


3. No contract formed by the signage
I submit that this signage failed to comply with the BPA Code of Practice section 18 and Appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. 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, as this is too late. There is a lack of entrance signage and the car park generally is not fully covered by signage at all bays and at no point was I aware of the risk of a punitive charge.

Neither do the signs state in clear terms how to display a permit. There was no breach since the permit was visible clearly through the rear window of the car as it was displayed on the parcelshelf.

With all this in mind, I require POPLA to inform the Operator to cancel the PCN.

Yours faithfully,


XXXXXXXXXXX

TGL

That's excellent - many thanks


Will appeal and update of the results


Thanks again

TGL

Have received a reply from POPLA stating that my appeal would be heard on or soon after 4th Feb 2015 - seems a long way off but perhaps that's the norm?

beniboi1986

Hi - I am in he same boat as TGL. Unfortunately, I did things the wrong way round and kept appealing to MET instead of POPLA.
After reading through this, I've appealed to POPLA but it was received outside of their 28day period and its been rejected.
Is there anything else I can do or am I stuck with paying the fine?

Jim_AFCB

beniboi1986 wrote: »

Hi - I am in he same boat as TGL. Unfortunately, I did things the wrong way round and kept appealing to MET instead of POPLA.
After reading through this, I've appealed to POPLA but it was received outside of their 28day period and its been rejected.
Is there anything else I can do or am I stuck with paying the fine?

Best to start your own thread on this, saves confusing advice being given.

One case, one thread.

Coupon-mad

It's not a fine!

Don't be daft - you don't PAY it!

What do you think we all did before POPLA existed as an option?! For nearly a decade we ignored debt collector letter for a few months and it fizzled out, same with you.

Please read post #4 of the NEWBIES thread near the top of the forum, use the forum jump to get there. You won't even need a new thread...please.

Umkomaas

The POPLA boat in your case has sailed and won't be returning to port.

If this was an ANPR ticket, first received via post - no windscreen ticket, you could as the keeper provide the name and address of the driver. But it is dependent on the fact that this wasn't a windscreen ticket and you haven't indicated in your appeals to the PPC that you were the driver (like saying stuff such as 'I didn't see the signs').

Other than that 2 options.

1. Complain to the landowner/retailer
2. Ignore everything from now, including debt collector letters, unless you receive a formal County Court claim - which must NOT be ignored!

All the above information is available for reading in the NEWBIES FAQ sticky one page back from here.

If you want to ask any questions after reading the sticky, please do so via a new thread of your own.

TGL

A big thanks to Coupon-Mad (and this website). Just heard that my appeal has been successful. Excellent advice!!


Here is the text of the decision


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.

ampersand

Excellent - a good start to the w/e:-)

Would you kindly post details and assessor's name over on the POPLA Decisions Thread?
https://forums.moneysavingexpert.com/discussion/4488337

Well done!