UKPC Cheltenham - first appeal rejected

akmo

Hi,
I have already been through the first stage of appeal with usual mitigating circumstances; and yes I have acknowledge being the driver. As with most people's experience, rejected with a standard letter. Then I discover this wonderful forum!


My circumstance is as follow:
Parked in ex-council own car park thinking it's still the case.(free after 8pm, I'm not local so didn't know car park already sold to developer).
Arrived 45min before free period so purchased tick to cover charge period.
Did not read sign properly as it was not particularly well lit and high up.
Came back after 10pm with parking charge notice on windscreen.


So now I need help to prepare a POPLA appeal; here my first attempt:

---

The Independent Appeals Service
POPLA
PO Box 70748
London
EC1P 1SN



PCN – POPLA reference Number - XXXXXXXXXX



Dear POPLA,



I am the driver of the above vehicle and on DD-11-2014 my vehicle REG NUM was issued with a Penalty Charge
Notice (yyyyyyyyyyyyy) which I am appealing. I wish to appeal on the grounds outlined below:



1. The Charge not a genuine pre-estimate of loss



The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no
relationship to any loss that could have been suffered by the Landowner. I put Civil Enforcement to strict
proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.
The driver has a UKPC parking sticker which is visible on the screen in the photo taken at 20:41:07 on the dashboard therefore this Operator cannot demonstrate any initial quantifiable loss. The
parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially
enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the
conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is
fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be
said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and
tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of
this parking event by a driver who was fully authorised to be parked at that site.
The Operator would have been in the same position had the parking charge notice not been issued, and would
have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking
is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this
alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to
the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being
wrongly ticketed.
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-
excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr
Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be
commercially justified where the dominant purpose of the charge is to deter the other party from breach. This
is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at
paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ
1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the
circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to
deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the
aim is to put the parties in the position they would have been in had the contract been performed. It also
seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding
nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation
of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an
accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be
compensatory in nature rather than punitive.''



2. Unclear Signage – No contract with driver



I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words
are unreadable. I put UKCPS to strict proof otherwise; as well as a site map they must show photos in darkness
taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent,
not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless
brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see
any sign; there was no consideration/acceptance and no contract agreed between the parties.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a
driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during
the hours of darkness...when parking enforcement activity takes place at those times. This can be
achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not
directly or indirectly lit...should be made of a retro-reflective material similar to that used on public
roads''.



3. Lack of standing/authority from landowner



BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the
contract terms with the actual landowner (not another agent as they are not the landholder). UKPC has no legal
status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in
its own name nor standing to form contracts with drivers itself. They do not own this car park and appear (at
best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No
evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.
I require UKPC to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the
landowner. I say that any contract is not compliant with the BPA Code of Practice and does not allow UKPC
(specifically) to issue proceedings for this sum for this alleged contravention in this car park. UKPC have
previously failed in several attempted small claims in 2014 when it was exposed that only their principal had
the right to start court proceedings. I say this is likely to be typical of UKPC contracts. In my case with
this car park site, if UKPC cannot show the landowner has authorised them to pursue PCNs in the court in their
own name alone, they will fail to show they have standing and authority. In order to refute this it will not
be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show
sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner)
and may well be signed by a non-landholder such as another agent. A redacted contract will not refute my
assertion either because the redaction could be the relevant wording about who can start court proceedings.



4. Unreasonable/Unfair Terms



The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in
Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial
burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what
circumstances.
An unlit sign of terms placed too high to read, is far from 'transparent'.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded
as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer
who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore,
Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded
as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties'
rights and obligations arising under the contract, to the detriment of the consumer".
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair
Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to
indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred
by the other for negligence or breach of contract, except in so far as the contract term satisfies the
requirement of reasonableness.”

I contend it is wholly unreasonable to rely on 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.



I therefore respectfully request that my appeal is upheld and for POPLA to inform UKPC that the charge is dismissed.

Coupon-mad

You need to proof read it and change the name to UKPC throughout! I saw 'Civil Enforcement' and 'UKCPS' in there for starters!

akmo

Thank you Coupon-mad for your response. Here is version 2 taken into account of your comment, so hopefully this is good enough for submission. Thanks

---

The Independent Appeals Service
POPLA
PO Box 70748
London
EC1P 1SN

PCN – POPLA reference Number - XXXXXXXXXX

Dear POPLA,

I am the driver of the above vehicle and on DD-11-2014 my vehicle REG NUM was issued with a Penalty Charge Notice (yyyyyyyyyyyyy) which I am appealing. I wish to appeal on the grounds outlined below:

1. The Charge not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.

The driver has a UKPC parking ticket which is visible on the screen in the photo taken at 20:41:07 on the dashboard therefore this Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event by a driver who was fully authorised to be parked at that site. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed. Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ1669 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. Unclear Signage – No contract with driver

I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKPC to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties. The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public
roads''.

3. Lack of standing/authority from landowner

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). UKPC has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right. I require UKPC to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the BPA Code of Practice and does not allow UKPC (specifically) to issue proceedings for this sum for this alleged contravention in this car park.
UKPC have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of UKPC contracts. In my case with this car park site, if UKPC cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.


4. Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
An unlit sign of terms placed too high to read, is far from 'transparent'.
Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on 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.


I therefore respectfully request that my appeal is upheld and for POPLA to inform UKPC that the charge is dismissed.

akmo

Hi All,


My POPLA appeal deadline is early next week, so any help would be very much appreciated.


Thanks

Umkomaas

and the operator should make the terms of proving the car is 'exempt', much clearer to the onsite staff and to drivers in order to mitigate their alleged losses and to avoid genuine customers being wrongly ticketed

Is this relevant - nothing you've said by way of background to your case suggests this is appropriate?

UKPC have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings.

Where have you got this statement from? I find exactly that form of words in an appeal relating to APCOA (a different PPC)? Have you done a 'find and replace' changing a different PPC's name to read UKPC?

UKPC hasn't commenced any court proceedings in the past couple of years, so this statement looks decidedly concerning - especially as UKPC will have sight of this and I'd expect them to vigorously challenge any statement that is patently untrue. Check their court 'record' here:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/322893/british-parking-association.doc

In other respects your appeal covers the main points, but it could do with better formatting - too many 'walls of text' that would benefit from some paragraph breaks.

Coupon-mad

That's copied from an APCOA version which is quite newly-written but well spotted, Umkomaas! akmo you do need to proof read and prune any template, you can't copy stuff that's obviously specific to another case/PPC.

halibut2209

As an aside, is this the car park behind the Brewery? Just off Portland Street?

akmo

Thank you Umkomaas and Coupon-mad for your comments. Admittedly I did copy and paste the text from 2 recent cases (one UKPC; forgot who the other one was related to) without proof reading, hence the PPC name errors.


I have removed the offending text as per Umkomaas' comment, so hopefully this latest version is be good enough.


halibut2209 - the one I parked have entrance from both North Place and Portland Street. I read afterwards that UKPC started managing it from summer 2014. The one on the other side of North Place was still council run until a couple of weeks ago apparently.

---

The Independent Appeals Service
POPLA
PO Box 70748
London
EC1P 1SN

PCN – POPLA reference Number - XXXXXXXXXX

Dear POPLA,

I am the driver of the above vehicle and on DD-11-2014 my vehicle REG NUM was issued with a Penalty Charge Notice (yyyyyyyyyyyyy) which I am appealing. I wish to appeal on the grounds outlined below:

1. The Charge not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.

The driver has a UKPC parking ticket which is visible on the screen in the photo taken at 20:41:07 on the dashboard therefore this Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event by a driver who was fully authorised to be parked at that site. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event. Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ1669 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. Unclear Signage – No contract with driver

I see that the sign is placed high up and is unlit, so that in darkness no signs are visible and the words are unreadable. I put UKPC to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. There is no entrance sign, no lighting on site and the sign is not prominent, not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties.
The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public
roads''.



3. Lack of standing/authority from landowner

UKPC has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not a lessee or agent). UKPC have no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.

I require UKPC to provide a full copy of the contemporaneous, signed & dated (un-redacted) contract with the landowner. I say that any contract is not compliant with the BPA Code of Practice and does not allow UKPC (specifically) to issue proceedings for this sum for this alleged contravention in this car park. In my case with this car park site, if UKPC cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.


4. Unreasonable/Unfair Terms

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.


An unlit sign of terms placed too high to read, is far from 'transparent'.


Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

I contend it is wholly unreasonable to rely on unlit 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.


I therefore respectfully request that my appeal is upheld and for POPLA to inform UKPC that the charge is dismissed.

halibut2209

That's the one. That car park has caused a lot of problems for people. Used to be free in the evenings and it's right next to a big restaurant and cinema outlet. I know a lot of people who were caught out and now won't go there anymore. It's a ridiculous move by the council. I just go to Gloucester now.

The_Deep

Do not make the mistake of taking UKPC too seriously, if PPCs were cars, they would be a Trabant.

http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

http://forums.pepipoo.com/index.php?showtopic=63597

Coupon-mad

That looks fine although have only skim-read to check it has what's needed for POPLA.