POPLA Appeal now written (please see my last post in this thread - advice appreciated

beardywierdy

hi
I have now received my NTK. I parked on a free retail park but was in the Nando's 'staff only area' . Here is a link to my photos. - sorry not allowed to post a link

You can see the signs; one is near the bins and the other is on a wall, impossible to see at night. Below is my appeal. I would appreciate some feedback. Is it OK to appeal online or best by post. Should I leave in Para 3 about the breach of contract, as in effect I was trespassing.. Thanks in advance


I challenge this 'PCN' as keeperof the car, on these main grounds:

a). You are claiming for damages on the basis that I parked in an areadesignated for staff only. Therefore, there was no offer for me to park therefore there can be no contract. Iwas in effect trespassing and this merelyamounts to a civil trespass.This is denied. The ticket (or sign) does not mention trespass nor breach, sothere is no charge applicable. However, for the avoidance of doubt, the keeperwould be potentially only be liable for damages owed to the owner/occupier whomay have suffered a loss. Since no ‘damage’ occurred in the car park and alsogiven the fact that the car park was not completely full in short time the carwas on site, there was in fact no loss at all and this charge is purely aprofiteering penalty, out of all proportion. The sum does not represent a genuine pre-estimate ofloss, nor is it a core price term. It is a disguised penalty and notcommercially justified.
b). As keeper I believe that the signs were not seen; the wording is ambiguousand the predominant purpose of your business model is intended to be adeterrent. As you will note from the attached photographs, at least one of thesigns is obscured by dustbins. Both signs are hard to discern at night, nothaving any lighting. You will also note that the ‘staff’ signs are almostidentical to the general parking signs, which in my opinion are designed toconfuse. The positioning of the signs is confusing; it is impossible todetermine where ‘staff’ parking and parking for those utilising the generalparking spaces, begins and ends.
c). There is no evidence that you have any proprietary interest in the land.
d). Your 'Notice' fails to comply with the POFA 2012 and breaches variousconsumer contract/unfair terms Regulations.
e). There was no consideration nor acceptance flowing from both parties and anycontract with myself, or the driver, is denied.
f). This is not a 'parking ticket' - it is an unsolicited invoice.



The purpose of this communication is:

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can bedrawn. As such, you must either rely on the POFA 2012 or cancel the charge. Isuggest you uphold this challenge now or alternatively, send a rejection letter- subject to accepting my claim for costs as clearly stated below, since youhave no case.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may haveincurred nominal postage costs. Equally, I have incurred costs to date, forresearching the law and responding to your junk mail dressed up to impersonatea parking ticket. It is clear that my costs and yours, at this point, do notexceed £15. Therefore, this is a formal “drop hands” offer. I remind youof the duty to mitigate any loss, so withdraw the spurious charge within 35days without further expense and I will not pursue you for my costs. Ifyou persist then I will charge in full for my time at £18 per hour plus myout-of-pocket expenses and damages for harassment.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged 'contract' which was neverproperly offered by you and certainly was not expressly agreed. This 'contract'is hereby cancelled and any obligations now end. If you offer - and if I decideto use - IAS or POPLA, then the contract ends immediately on the date of theirdecision (whatever the outcome) so my notice of cancellation still applies. TheConsumer Contracts (Information, Cancellation & Additional Payments)Regulations apply now to every consumer contract, save for a few exemptions,which parking contracts are not. It is the will of Parliament following the EUConsumer Rights Directive, that express consent is obtained for consumercontracts now - not implied consent - and that information is provided in adurable medium in advance.

You have failed to meet these requirements. The foisting of unexpectedcontracts like this on consumers, by stealth, is a thing of the past.

By replying to the challenge you are acknowledging receipt and acceptance ofpoints 2 and 3 above. If you decide to persist with this unwarranted threat, Iwill be put to unnecessary expense and hours of time in appealing or defendingthis matter. As such, you will be liable for my costs and a pre-estimate of myloss - and in contrast with yours, mine is genuine - is that this sum will belikely to exceed £100.

I have kept proof of submission of this challenge. I look forward to yourconsidered reply within 35 days.

Yours faithfully,

beardywierdy

Any advice appreciated
Thanks

Redx

beardywierdy wrote: »

Any advice appreciated
Thanks

firstly, there is a PPC appeal in the newbies sticky thread that covers all bases

unfortunately, people tend to want to add to it and explain things, inadvertently giving away the driver - YOU have done this in your opening statements

to much of the "me , myself and I" going on

a). You are claiming for damages on the basis that I parked in an area designated for staff only. Therefore, there was no offer for me to park therefore there can be no contract. I was in effect trespassing and this merely amounts to a civil trespass.This is denied.

either remove it and just send the template letter , making them prove all facts and accepting your keeper appeal and cancelling , or denying your appeal and moving you onto an IAS appeal by the correct IAS firm

you dont have to explain yourself , so dont , or at least change it to "the driver"

if appealing as keeper, forget all this I business , stop making it easier for them and harder for you , too many people post on here as say they appealed as keeper, then we find they have admitted they were the driver like you have above, or they do it too early

so if you have an NTK , appeal as RK , if you are the RK , and word it on the assumption that it was me that was the driver and you were not involved at all

beardywierdy

Thanks for advice, I will amend.
Is it ok to appeal online or best by post?
Thanks

Redx

beardywierdy wrote: »

Thanks for advice, I will amend.
Is it ok to appeal online or best by post?
Thanks

your NTK should tell you that info

if you post, get a free certificate of posting from the PO

Coupon-mad

Hope you edited it all out. You didn't need to add ANYTHING to the template and to throw away the fact you are appealing as KEEPER, by adding in needless words saying who was driving, is plain daft! Sorry but please, you can see it's is written 'I am the keeper' for a reason and the NEWBIES thread explains why.

beardywierdy

There is no genuine pre estimate ofloss

The car park mentioned in the NtK isa FREE car park and at the time of the alleged parking contravention was notfull and as such there would be no loss of income flow to UKPC nor can it beevidenced any potential future loss of income from a FREE car park from thisalleged parking contravention.

I believe that UKPC would not beable to demonstrate any initial quantifiable loss and to be potentially enforceable theoperator would have to show that the parking charge must be shown to be anestimate of a likely loss flowing from the alleged parking contravention at thetime of the alleged incident only.

An example being from loss of revenue from failure to pay a tariff would be apotential loss of revenue; however as already highlighted this is a free carpark and so there would be NO loss to either UKPC or their client.

It is important to note that an initial loss is fundamental to a parking chargeand, without it, costs subsequently incurred by issuing the parking chargenotice cannot be said to have been caused by the driver's allegedparking contravention. Though not an exhaustive list, examples of subsequentbusiness costs would include normal operational costs and any tax-deductibleback office functions, debt collection, etc.

Furthermore,the allegation is that the driver parked without displaying a relevant permiti.e. that parking is restricted to ‘Staff Only’.

Therefore, there was no offer to the driver to park and therefore no contract andno breach of contract; at most the allegation can only amount to a civiltrespass. This is denied. If UKPC now try to allege that this is the nature ofthis 'charge' then the driver would be potentially only be liable for damagesowed to the owner/occupier who may have suffered a loss. Since no ‘damage’occurred in the car park and also given the fact that the car park was notcompletely full in short time the car was on site, there was in fact no loss atall and this charge is purely a profiteering penalty, out of all proportion.



Lack of clear, readable signage - nocontract with driver


On receipt of the NtK, location was visited and a number of photographs were obtained and as keeper Ibelieve that the signs were not seen; the wording is ambiguous and thepredominant purpose of your business model is intended to be a deterrent. Asyou will note from the attached photographs, at least one of the signs isobscured by dustbins. Both signs are hard to discern at night, not having anylighting. You will also note that the ‘staff’ signs are almost identical to thegeneral parking signs, which in my opinion are designed to confuse. Thepositioning of the signs is confusing; it is impossible to determine where ‘staff’parking and parking for those utilising the general parking spaces, begins andends.

For a contract to exist in such circumstances there is more than the generalbelief that signage and all terms are required to be so prominent and the riskof a charge so transparent that the information in its entirety must be clearlyseen/accepted by the driver. As has been evidenced by my outline of thesignage, including positioning, lack of lighting by any means and backed up bysupporting photographic evidence I would strongly argue that the signage is notsufficiently prominent for the driver to discern before entering the ‘staffarea’ or subsequently parking up and as a result knowingly enter into acontract, be aware of the terms and conditions or possible subsequentconsequences for breaching such conditions so could not possibly enter intosuch a contract

I put it to UKPC to prove beyond all reasonable doubt that the legibility ofthe signs throughout the car park were sufficient on the date and time of thealleged offence, paying particular attention to this being an alleged nighttime occurrence.

I would argue that on a number of points that the signage fails to comply witha number points of BPA’s code of practice for which Care Parking are a memberand draw the assessor’s attention to the following passage taken from BPA’s ownCoP 2014

“Signs should be readable and understandable at all times,
Including during the hours of darkness or at dusk if and when parkingenforcement activity takes place at those times. This
can be achieved in a variety of ways such as by direct lighting or
by using the lighting for the parking area. If the sign itself is not
directly or indirectly lit, we suggest that it should be made of a
retro-reflective material similar to that used on public roads and
described in the Traffic Signs Manual. Dark-coloured areas do
not need to be reflective.”

Lack of standing/authority fromlandowner

UKPC has no title in this land and no BPA compliant landowner contractassigning 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 thecontract terms with the actual landowner (not a lessee or agent). I stronglybelieve that UKPC have no legal status to enforce this charge because there isno assignment of rights to pursue PCNs in the courts in their own name norstanding to form contracts with drivers themselves. They do not own this carpark 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 suppliedshowing that UKPC are entitled to pursue these charges in their own right inthe courts.

I require UKPC to provide a full, contemporaneous, unredacted copy of thecontract signed & dated with the landowner.

I would suggest that any contract is not compliant with the requirements setout in the BPA CoP and does not allow them to charge and issue proceedings forthis sum for this alleged contravention in this car park.

In order to refute this it will not be sufficient for the Operator merely tosupply a site agreement or witness statement, as these do not show sufficientdetail (such as the restrictions, charges and revenue sharing arrangementsagreed with a landowner) and may well be signed by a non-landholder such asanother agent. In order to comply with paragraph 7 of the BPA CoP, anon-landowner private parking company must have a specifically-worded contractwith the landowner - not merely an 'agreement' with a non-landholder managing agent- otherwise there is no authority.

Failure to provide the full and unredacted contract I would deem as impossiblefor myself to provide a full defence and detrimental to proving my innocenceand would ask that if the full contract is not forthcoming that an adverseinference is drawn from the refusal to provide a copy



Unreasonable/Unfair Contract 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 onUTCCR 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 asto 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) listof 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 failsto fulfil his obligation to pay a disproportionately high sum incompensation." Furthermore, Regulation 5(1) states that: "Acontractual term which has not been individually negotiated shall be regardedas unfair if, contrary to the requirement of good faith, it causes asignificant imbalance in the parties' rights and obligations arising under thecontract, to the detriment of the consumer".

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

I contend it is wholly unreasonable to rely on unlit signs in an attempt toprofit by charging a disproportionate sum where no loss has been caused by acar in a free car park where the bays are not full. I put this Operator tostrict proof to justify that their charge does not cause a significantimbalance to my detriment and to justify that the charge does not breach theUTCCRs and UCT Act.


In summary, UKPC are attempting to enforce a punitive charge for an allegedinfringement, thinly disguised as a contractual charge, which breaches theUnfair Terms in Consumer Contracts Regulations, which they have no authority toissue in the first instance and which they have no reliable means of provingever took place at all at the times stated.

In view of the above I respectfully request that after careful andconsideration of each point that this PCN is invalid and should be cancelledwithout prejudice

beardywierdy

Anyone please?

beardywierdy

Anyone got any advice?

Umkomaas

It's very difficult to read with many words melding into each other (formatting issue of copying and pasting direct from Word). As such I've not been through it word for word - I no longer proof read lengthy drafts - but you've got the main appeal points covered.

But you need to sort out the formatting of the melding words, and, more importantly the layout. Look at other examples for layout - you need a numbered bullet point list of appeal paragraph headers obviously linking to the appropriate numbered paragraph header.

The general formatting of the paragraphs also need sorting out, because at the moment it looks like it's a case of finding suitable appeal paras from different appeals, copy, paste and hope it all looks OK - more work to do on that. You also need your reference details at the opening of the appeal.