UKPC: Should I appeal?

Swanvesta

I recently got a 'charge' for not displaying a ticket in Portland St public car park, Cheltenham. It was after 8pm and whenever I've used this car park in the past it was free at that time. However, I've since discovered it was taken over by UKPC a few months ago and is now 24 hours. And the charge has gone up from £60/£30 to £100/£60! Clearly, as far as I'm concerned, I did not implicitly agree to anything like this.

I am following advice on the Newbies thread, currently awaiting the NtK, but have seen other advice suggesting it is worth making an initial appeal before that, after around 21 days. Apparently UKPC may then forget to send the NtK, and if they don't do that within 57 days there is a technicality which renders their claim void. Is this a good idea?

Also wondering if I should mention the signage in my appeal, or just keep it generic? It was dark and though the car park is full of street lamps (including one right above the meter) none of them were switched on. I've since been back to take photographs (in the dark!) and the meter and most of the signs were impossible to read. In fact I noticed people using their phones to illuminate the meter.

Thanks in advance for any advice/reassurance on this.

Tom

bod1467

Just use the appeal from the NEWBIES thread.

UKPC are very easy to beat.

The_Deep

Not only are they easy to beat, they are !!!! scared of going to court.

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

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

Coupon-mad

I am following advice on the Newbies thread, currently awaiting the NtK, but have seen other advice suggesting it is worth making an initial appeal before that, after around 21 days. Apparently UKPC may then forget to send the NtK, and if they don't do that within 57 days there is a technicality which renders their claim void. Is this a good idea?

No need for this with UKPC, just wait. They will send a NTK. You will win.

Guys_Dad

Swanvesta wrote: »

I recently got a 'charge' for not displaying a ticket in Portland St public car park, Cheltenham.

Tom

Don't know the area. When you say it is a public car park, please be clear that this is not a council car park.

Swanvesta

Thanks everyone.

bod1467: Are you suggesting I appeal after 21 days or (as Coupon_mad says) wait for the NtK? Part of me just wants to get on with it (itchy fingers.)

Guys Dad: It used to be council run but it's been sold off in the last few months. I say 'public' because it's a standard pay and display, not part of a retail site.

bod1467

Wait for the NTK.

My advice was to use the appeal from the NEWBIES thread. As in - use the text.

Swanvesta

I'm appealing to UKPC with this. Have added point D) to the template I found. Good idea, or not?

Dear Sirs

Re: Parking Charge No. xxx

I have received your parking 'charge' impersonating a parking ticket. I decline your invitation to pay or name the driver, neither of which are required of me as the keeper of the vehicle. This is my appeal and all liability to your company is denied on the following basis:

A) The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss to your company or the landowner.
I believe you are not the landowner and do not have the standing to offer contracts to drivers nor to bring a claim in your own right.
C) Your signage was neither sufficiently prominent, nor clearly worded and consideration did not flow from both parties, so there was no contract formed.
D) This car park was until recently free of charge after 8pm, therefore unlit signage at the pay point is not adequate to advertise the change of terms.
E) This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not your customers and are not parties of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not ‘drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

As you have failed to create any enforceable contract I suggest that you cancel this unjustified 'ticket'. If not, under your Trade Body's current Code of Practice you must issue a rejection letter which, in order to answer my appeal, must include:

1. The legal basis of your charge, which is not clear (i.e. breach, trespass or contractual fee?). As keeper, I cannot be expected to guess the basis of your allegation.
(i) if alleging breach of contract, please supply a breakdown of your alleged 'loss' and state the intention of your enforcement (i.e. deterrent or revenue?).
(ii) if alleging trespass, enclose evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the landholder.
(iii) if alleging 'contractual fee' I request a VAT invoice by return and your explanation of how you can allow drivers to park 'in breach' for a fee when your client originally contracted you in order to disallow and deter - not allow and profit from - unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal).!

2. Proof of your locus standi to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention. If you are not the landowner, I will need to see a copy of your contract, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client and the definition of your status as agents or contractors and your assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge your landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I will require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other party who is not the landowner.!

3. Your explanation of the consideration that you believe flowed from the driver, and from yourselves. Consideration from both sides is required for a contract.

4. A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.

5. The means to make an appeal to POPLA or the IAS. This must not be withheld or delayed, which would be a breach of the Code of Practice.

If you fail to simply cancel the charge or supply the means to independent appeal in your first reply you will also be reported to your applicable ATA and the DVLA. A certificate of posting will be obtained for all written communications for this appeal and complaint and I intend to claim my costs when I prevail.

Yours faithfully,

bod1467

Remove "or the IAS" ... this is UKPC who are BPA members, so POPLA applies.

Swanvesta

This is the reply I sent to UKPC in the end. It's been rejected, I will post a scan of that next:

I have received your parking 'charge' impersonating a parking ticket. I decline your invitation to pay or to name the driver, neither of which are required of me as the keeper of the vehicle. This is my appeal and all liability to your company is denied on the following basis:

A) The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss to your company or the landowner.
I believe you are not the landowner and do not have the standing to offer contracts to drivers nor to bring a claim in your own right.
C) Your signage was neither sufficiently prominent, nor clearly worded and consideration did not flow from both parties, so there was no contract formed. This car park was until recently free of charge after 8pm, therefore signage at the pay point was inadequate to advertise the change of terms. In addition, the signage was unlit, as is confirmed by your own photographs which clearly rely on the camera flash for any detail to be visible.
D) This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not your customers and are not parties of equal bargaining power. Therefore ALL terms are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver. No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not ‘drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'

As you have failed to create any enforceable contract I suggest that you cancel this unjustified 'ticket'. If not, under your Trade Body's current Code of Practice you must issue a rejection letter which, in order to answer my appeal, must include:

1. The legal basis of your charge, which is not clear (i.e. breach, trespass or contractual fee?). As keeper, I cannot be expected to guess the basis of your allegation.
(i) if alleging breach of contract, please supply a breakdown of your alleged 'loss' and state the intention of your enforcement (i.e. deterrent or revenue?).
(ii) if alleging trespass, enclose evidence of the perpetrator, proof of the liquidated damages alleged and the calculation of this sum by the landholder.
(iii) if alleging 'contractual fee' I request a VAT invoice by return and your explanation of how you can allow drivers to park 'in breach' for a fee when your client originally contracted you in order to disallow and deter - not allow and profit from - unauthorised parking. I contend this charge is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014 Appeal).!

2. Proof of your locus standi to offer contracts to drivers at this site and to bring a claim in your own right for this particular contravention. If you are not the landowner, I will need to see a copy of your contract, showing the restrictions, the charges, the dates and terms of business including any payments between yourself and your client and the definition of your status as agents or contractors and your assigned rights (if any). Such detail is necessary for me to make an informed decision. Failure to divulge your landowner contract (or heavily redacting it) will be deemed as withholding pertinent information and, of course, I will require it to be shown at independent appeal stage anyway. A witness statement will not suffice, nor a site agreement with a managing agent or other party who is not the landowner.!

3. Your explanation of the consideration that you believe flowed from the driver, and from yourselves. Consideration from both sides is required for a contract.

4. A copy of the signage site map and close-up pictures of the signs in situ at the time, taken at a comparable time of day in similar light conditions.

5. The means to make an appeal to POPLA. This must not be withheld or delayed, which would be a breach of the Code of Practice.

If you fail to simply cancel the charge or supply the means to independent appeal in your first reply you will also be reported to your applicable ATA and the DVLA. A certificate of posting will be obtained for all written communications for this appeal and complaint and I intend to claim my costs when I prevail.

bod1467

I assume you have a POPLA code? If so, just get on with sorting your POPLA appeal.