Car park partnership fine

ManxRed

Just remove any references in your POPLA draft to holding the RK liable, and focus on the legal standing, the signage and the 'not a genuine pre-estimate of loss' aspects.

You'll still win.

TryingHard1

Thanks again.

Can someone suggest to me an appropriate template?

I was going to go with this one but if someone has a better one, particularly which is closer to my situation:

forums.moneysavingexpert.com/showthread.php?p=62180281&posted=1

Also I have photos of the signs if it would help people help?

Regards

TryingHard1

Hi

Please could I get some advice on my first appeal point as below. I have pretty much lifted it from the post mentioned above, and modified the language so it's more to the point:

Any help or suggestions would be greatly appreciated:

"1) No genuine pre-estimate of loss
This car park is Pay and Display (P&D) and the cost of 2 hours parking would have cost £5 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £5 at the most. Car Parking Partnership have not told me these details, despite it being a prerequisite of Schedule 4 (see point #2).

The Operator cannot reasonably claim a cost of £75 as a loss based on the fact the car park was half empty at the time of the incident. This effectively represents Car Park Partnership charging me to help them run their business. Furthermore Car Parking Partnership claim to represent the landowner however I suggest there was never any advance meeting held with the landowner/client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

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 the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have not mentioned to the Keeper) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator 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.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

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

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation.

This charge cannot be 'commercially justified' either, as it makes no sense for the operator to pursue me for the value of £5 by incurring costs of greater than £5 in correspondence or in POPLA fees. POPLA Assessor Chris Adamson has stated in June 2014 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.''

With the above in mind the only compensatory amount due to Car Parking Partnership would be the value of £5 for a stay of 2 hours."

Coupon-mad

Yep that looks fine for the first POPLA appeal point. You will also need 'unclear signage' and 'no landowner contract' and you could also have 'The Operator's machine was out of order so they have frustrated any possible contract and made it impossible for me to comply'.

| see you have mentioned Schedule 4 but that's not open to you as an appeal point, because you gave away who was driving. The POFA only protects registered keepers and you cannot use Schedule 4.

When you have submitted your POPLA appeal, look out for CPP's evidence pack (PPC emails sometimes go straight to spam so watch out!) and post it up here as you may have to rebut what they say to be sure of a POPLA win. They have 2 points in their favour, the fact you have admitted you were driving so they don't have to prove Schedule 4 compliance now, and the fact that it was a P&D car park so they will argue there is an initial loss (which sometimes causes POPLA to just swallow any further 'costs/loss' calculation). So a timely rebuttal of their evidence will be important.

TryingHard1

Thank you coupon-mad. I reviewed my first point today, and changed one of the following paragraphs as follows:

"This charge cannot be 'commercially justified' either, as it makes no sense for the operator to pursue me for the value of £5 by incurring costs of greater than this amount in correspondence or in POPLA fees. Therefore based on this alone their claim of £75 is clearly in contravention of all the regulations regarding pre-estimate loss, as they are inflating their apparent loss and then spending money in the form of correspondence as a way of claiming this higher amount. This demonstrates that the original ticket was simply a way of triggering a cascade of events, which would allow them to profit beyond what is reasonable. "

What do you think?

TryingHard1

I've changed the final paragraph to the following:

"With the above in mind the only compensatory amount due to Car Parking Partnership would be the value of £5 for a stay of 2 hours. If Car Parking Partnership are claiming damages due to this incident then they must clearly demonstrate a genuine pre-estimate of loss. If they are claiming there was a contract between the driver and themselves (which there clearly was not, see point 2), then they must demonstrate that the charge of £75 compared to the actual cost of parking is not punitive."


All help and input is greatly appreciated.

TryingHard1

Here is my second appeal point regarding ' no contract was formed':

"2) No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, Car Parking Partnership must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level.

A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put Car Parking Partnership to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between Car Parking Partnership and the landowner. Furthermore the contract must not be with another agent, retailer or other non-landholder, because it will not be clear that the landowner has authorised the necessary rights to Car Parking Partnership.

Car Parking Partnership and it’s affiliates must clearly demonstrate to all concerned that they are authorised to pursue this inflated charge of £75, and are not simply handing out speculative charges to members of the public, where no contract exists and cannot be demonstrated in a court of law. This method of speculation has no basis in any legal framework."

Coupon-mad

Looking good so far, but you need the rest as well.

TryingHard1

Hi, here are my final two appeal points:

"3) Inadequate and insufficient signage therefore no valid contract formed between the contesting parties

The signs are completely inadequate as they do not communicate the full contractual terms and conditions. The signs do not cover basic directions on what to do in various situations. For instance there is no information regarding who to speak to and what to do if the pay and display (P&D) machines are out of order. It is not reasonable to allow members of the public to park and then prevent them from paying and displaying, by not having working machines, thus failing to live up to the basic requirements of a P&D car park.

It should specifically state as part of the full terms and conditions of use that if the machine is out of order then you are not entitled to park. However the landowner would certainly require P&D machines to be working at all times, and would not allow Car Parking Partnership (CPP) to invoice car park users for extortionate amounts (£75) simply because CPP have failed to maintain their P&D machines.

Firstly there is no contract in place due to inadequate signs. However more seriously if CPP are aware that their machines aren’t working, but decide to invoice members of the public arbitrary amounts which are not stated anywhere and are not agreed upfront, then this can only be classified as fraud or extortion. For example if you were attracted by an advert in a shop for a product, and you decided you wanted to buy. Upon getting to the checkout a random monetary figure was not proposed but demanded, then certainly you would walk out of the shop. Similarly if it clearly states it costs £5 for 2hours parking then that is all that should be demanded by CPP, regardless of whether a formal contract has been agreed or not. Without a formal contract, CPP have demanded £75, therefore I propose that this is extortion.

If CPP state that their machines are fully operational while the car park is in operation, then this is a blatant lie, as there is ample evidence to the contrary.

The BPA Code of Practice states that on entrance signs must be clearly readable without a driver having to turn away from the road ahead. In this instance the signs are hidden to one side of the car park, and it would be impossible to read the signs upon entering the car park without looking away from the road. Also as there are no barriers or humps to slow cars down upon entering the car park, a car will almost certainly be travelling at a speed which would not allow them turn to their left to read the entire sign, digest the information and then think about whether it is appropriate for them to accept.

Furthermore it states in the cord of practice that the Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms beforehand. Clearly given the sign was unreadable upon entering the car park and do not provide basic contractual information, and the P&D machines were not working then it is completely impossible to form any kind of formal contract.

3)Punitive Charges

The charge of £75 compared with the actual cost of parking (£5 for 2 hours), would be considered as punitive, when considering the Unfair Terms Consumer Contracts Regulation 1999. Despite the fact that no contract was formed due to my previous points in section 3, even CPP argue that a contract has been formed then they must request charges in line with legislation (fair and not disproportionate). It is not appropriate to claim a contract exists and to make up a figure, which they deem appropriate for themselves. This demonstrates a clear and calculating callousness on the part of CPP, and shows they are not adhering to basic consumer regulations."

It would be great if I could get some feedback on these two points and also the earlier ones, so I can finalise my appeal and send of to POPLA.

Thanks in advance

Fruitcake

You have two appeal points numbered 3).