Ticket from ANPR Ltd

bod1467

Post your proposed appeal in a reply here - redact any personal/identifiable info (including the POPLA reference). We can then review it and offer suggestions.

bucko77

Hi - The proposed appeal is above further up the post - Thanks

bucko77

Just altered a few things below after comments. Any other comments would be great and I will send


Thanks again




Dear Sir / Madam

Re: Popla Code


As the registered keeper, I appeal on the following grounds:

1. The charge is not a genuine pre-estimate of loss.
2. No standing/authority to form contracts with motorists
3. Proprietary Interest
4. Inadequate signage
5. Failure to inform of POPLA appeal process (BPA Code of Practice)




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1. The charge is not a genuine pre-estimate of loss.
£100 is a sum 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require ANPR Ltd to explain their new calculations behind this charge. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.

In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If ANPR Ltd present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put ANPR Ltd to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the factthat the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other.In short, the sum stipulated for was not a genuine pre-estimateof loss but an “in terrorem” sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as ANPR Ltd made any calculation as to amount, that calculation related to the balance between deterring breach and enforcementon the one hand and deterring customers, on the other.£100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.

Icontend that the figure of £100 is a penalty clause in terrorem to deter breach, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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 Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of 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. No standing/authority to form contracts with motorists
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. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the a principal, ANPR Ltd has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

I put ANPR Ltd to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that ANPR Ltd can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows ANPR Ltd to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that ANPR Ltd can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.

3. Proprietary Interest
The driver does not believe that ANPR Ltd has demonstrated a proprietary interest in the land, because they have no legal possession which would give ANPR Ltd any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, ANPR Ltd in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge
The driver believes there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to Northampton Parking Management. The driver expects ANPR Ltdt to prove that they are not in breach of section 7.1 of the BPA code.

4. 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 the land and parking, breaches this code. There are no signs in the relevant location on the development therefore it is not clear what land the sign relates to. 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

5. 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.

Redx

on a quick skim read it seems ok to me , but in case I missed it , check you have a section which clearly states that a landowner witness statement should be rejected by popla and that only sight of a clear and unredacted contract with the landowner should be allowed as evidence to popla from ANPR

I am sure you will find suitable wording if you have not done so already