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Can anyone review my POPLA appeal? Thanks
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chipfan7
Posts: 7 Forumite
Please see below my draft POPLA appeal which is almost ready to send. The majority of the letter has been lifted from a previous successful appeal letter that someone previously very kindly shared however I have added in point 5 myself regarding the NTK not being compliant which I think is right.
Any advice/criticism welcomed before I send it - I have to say this has all been quite scary......
POPLA Reference Number: XXXXXXX
Vehicle Reg: XXXXXXXXX
Keeper: XXXXXXX
PPC: Care Parking (a trading name of Anchor Security Services Ltd)
PCN Ref: XXXXXXXXXXX
Alleged Contravention Date & Time: XXXXXXXXXX
<DATE>
Dear POPLA Assessor,
I am the registered keeper of XXXXXXX. I have been invoiced by Care Parking for a “parking charge” of £100 for allegedly contravening their terms and conditions at Brooklands Metrolink Car Park at the time and date specified.
I have always understood that this car park is free of charge 24/7 because I have never been made aware that the car park was managed or that terms and conditions applied.
I've now established that the PCN's alleged breach of “Abused Patron Parking” refers to “parking outside of tram hours”.
I wish to appeal this Care Parking PCN on the following grounds:
1. Lack of clear, readable signage - no contract with driver
2. Lack of standing/authority from landowner
3. The Charge is not a genuine pre-estimate of loss
4. Notice to Keeper does not comply with Schedule 4 POFA 2012
5. Summary
1. Lack of clear, readable signage - no contract with driver.
* There was no readable entrance sign available to a driver on entry explaining the car park was managed and terms and conditions applied.
* There was no signage within the vicinity or viewable from the bay where my car was parked.
* What signage did exist was obstructed by parked vehicles up until 300 feet into the car park when the first visible sign appeared 8 feet up a lamp post.
* There was no signage visible/presented to a pedestrian exiting on foot within the vicinity
None of the signage at Brooklands Metrolink Car Park allowed a driver to establish a clear and mutual contract with the Operator and I put Care Parking to strict proof otherwise; as well as a site map they must show photos showing the location and position of signage in place at the time of the alleged breach.
Having returned to the car park after the Notice to Keeper was received it was noted that new Signage had been posted all around the car park which was not in place at the time and date above. I can only assume that the reason this has been put in place is because Care Parking acknowledge that previous signage was in fact inadequate. I put it to Care Parking to proof that there was the required signage in place at the time and date of the alleged offence.
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.'
The signs are certainly not 'startling'. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of any hefty 'charge'. Terms on a notice - even if they were “numerous” and at “regular intervals” whatever those phrases are supposed to mean - are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety.
Having returned to the car park after the Notice to Keeper was received it was noted that new Signage had been posted all around the car park which was not in place at the time and date above. I can only assume that the reason this has been put in place is because Care Parking acknowledge that previous signage was in fact inadequate. I put it to Care Parking to proof that there was the required signage in place at the time and date of the alleged offence.
2. Lack of standing/authority from landowner to issue tickets
Care Parking 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 Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. 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 Care Parking are entitled to pursue these charges in their own right.
I require Care Parking 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 requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. 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. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
3. The Charge is not a genuine pre-estimate of loss.
Care Parking signs (irrespective of conflicting charges) state the charge is for 'contravening parking restrictions” so they must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park barely has any vehicles present at the time and date of the alleged breach. The car park is free to Metrolink users, which I was, so there was no loss of potential income in a free car park.
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. 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 vehicles breached any terms at all. Therefore, the sum they are seeking is not representative of the loss incurred by either the landowner, nor Care Parking (division of Anchor Security Services) flowing from any breach of the terms and conditions.
The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." The charge is Punitive, unfair and unreasonable.
Nor is the charge 'commercially justified'. If Care Parking cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - 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 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.''
My case is the same and Care Parking contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Care Parking are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #3.
4. Notice to Keeper does not comply with Schedule 4 of POFA 2012
A Notice to Driver was not issued by Care parking in relation to charge as specified in Schedule 4 paragraph 7 of the POFA 2012. The photographic evidence provided by Care Parking does not show any evidence of a Notice to Keeper on the car. As such the Notice to keeper should comply with paragraph 9 Schedule 4 of POFA 2012. Where no Notice to Driver has been served the Notice to Keeper should be issued with 14 days of the day after the parking date. As the Notice to Keeper I received was dated ……… then this did not fall within the specified time period and was therefore not compliant.
The Notice to keeper also does not state the period of parking to which the charge relates as per paragraph 9(2)(a) of Schedule 4 of the POFA 2012; again making this non-compliant.
5. Summary
On the basis of all the points I have raised, this “charge” fails to meet the signage and contract standards set out in sections 18 and 19 and Appendix B of the BPA Code of Practice and also fails to comply with basic contract law. I also believe that Care Parking have failed to comply with the POFA 2012 in terms of the Notice to Keeper. This is therefore an unenforceable penalty and I respectfully request that my appeal is upheld and the charge dismissed
Yours faithfully
Any advice/criticism welcomed before I send it - I have to say this has all been quite scary......
POPLA Reference Number: XXXXXXX
Vehicle Reg: XXXXXXXXX
Keeper: XXXXXXX
PPC: Care Parking (a trading name of Anchor Security Services Ltd)
PCN Ref: XXXXXXXXXXX
Alleged Contravention Date & Time: XXXXXXXXXX
<DATE>
Dear POPLA Assessor,
I am the registered keeper of XXXXXXX. I have been invoiced by Care Parking for a “parking charge” of £100 for allegedly contravening their terms and conditions at Brooklands Metrolink Car Park at the time and date specified.
I have always understood that this car park is free of charge 24/7 because I have never been made aware that the car park was managed or that terms and conditions applied.
I've now established that the PCN's alleged breach of “Abused Patron Parking” refers to “parking outside of tram hours”.
I wish to appeal this Care Parking PCN on the following grounds:
1. Lack of clear, readable signage - no contract with driver
2. Lack of standing/authority from landowner
3. The Charge is not a genuine pre-estimate of loss
4. Notice to Keeper does not comply with Schedule 4 POFA 2012
5. Summary
1. Lack of clear, readable signage - no contract with driver.
* There was no readable entrance sign available to a driver on entry explaining the car park was managed and terms and conditions applied.
* There was no signage within the vicinity or viewable from the bay where my car was parked.
* What signage did exist was obstructed by parked vehicles up until 300 feet into the car park when the first visible sign appeared 8 feet up a lamp post.
* There was no signage visible/presented to a pedestrian exiting on foot within the vicinity
None of the signage at Brooklands Metrolink Car Park allowed a driver to establish a clear and mutual contract with the Operator and I put Care Parking to strict proof otherwise; as well as a site map they must show photos showing the location and position of signage in place at the time of the alleged breach.
Having returned to the car park after the Notice to Keeper was received it was noted that new Signage had been posted all around the car park which was not in place at the time and date above. I can only assume that the reason this has been put in place is because Care Parking acknowledge that previous signage was in fact inadequate. I put it to Care Parking to proof that there was the required signage in place at the time and date of the alleged offence.
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.'
The signs are certainly not 'startling'. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of any hefty 'charge'. Terms on a notice - even if they were “numerous” and at “regular intervals” whatever those phrases are supposed to mean - are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety.
Having returned to the car park after the Notice to Keeper was received it was noted that new Signage had been posted all around the car park which was not in place at the time and date above. I can only assume that the reason this has been put in place is because Care Parking acknowledge that previous signage was in fact inadequate. I put it to Care Parking to proof that there was the required signage in place at the time and date of the alleged offence.
2. Lack of standing/authority from landowner to issue tickets
Care Parking 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 Care Parking to strict proof of the contract terms with the actual landowner (not a lessee or agent). Care Parking have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. 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 Care Parking are entitled to pursue these charges in their own right.
I require Care Parking 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 requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. 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. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
3. The Charge is not a genuine pre-estimate of loss.
Care Parking signs (irrespective of conflicting charges) state the charge is for 'contravening parking restrictions” so they must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park barely has any vehicles present at the time and date of the alleged breach. The car park is free to Metrolink users, which I was, so there was no loss of potential income in a free car park.
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. 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 vehicles breached any terms at all. Therefore, the sum they are seeking is not representative of the loss incurred by either the landowner, nor Care Parking (division of Anchor Security Services) flowing from any breach of the terms and conditions.
The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:
"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver." The charge is Punitive, unfair and unreasonable.
Nor is the charge 'commercially justified'. If Care Parking cite 'ParkingEye v Beavis & Wardley' it's irrelevant since Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014 upon seeing VCS' latest effort at a loss statement - their latest attempt to get around POPLA and likely to be broadly similar to any effort made by their sister firm, Excel - 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 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.''
My case is the same and Care Parking contracts are nothing like ParkingEye's contract in the Beavis case anyway, where Parking Eye paid £1000 per week for what was in effect a 'fishing licence' to catch victims and where the Operator made out they were the principal. In my case, Care Parking are merely agents at best, with a bare contractor's licence to put up signage and 'issue tickets' and they are known to be paid by their client so they have no standing nor loss to claim in their own right anyway. Of course money changing hands will affect any calculations of so-called 'loss' and is one of several reasons why I will require the landowner contract in full (unredacted) as per point #3.
4. Notice to Keeper does not comply with Schedule 4 of POFA 2012
A Notice to Driver was not issued by Care parking in relation to charge as specified in Schedule 4 paragraph 7 of the POFA 2012. The photographic evidence provided by Care Parking does not show any evidence of a Notice to Keeper on the car. As such the Notice to keeper should comply with paragraph 9 Schedule 4 of POFA 2012. Where no Notice to Driver has been served the Notice to Keeper should be issued with 14 days of the day after the parking date. As the Notice to Keeper I received was dated ……… then this did not fall within the specified time period and was therefore not compliant.
The Notice to keeper also does not state the period of parking to which the charge relates as per paragraph 9(2)(a) of Schedule 4 of the POFA 2012; again making this non-compliant.
5. Summary
On the basis of all the points I have raised, this “charge” fails to meet the signage and contract standards set out in sections 18 and 19 and Appendix B of the BPA Code of Practice and also fails to comply with basic contract law. I also believe that Care Parking have failed to comply with the POFA 2012 in terms of the Notice to Keeper. This is therefore an unenforceable penalty and I respectfully request that my appeal is upheld and the charge dismissed
Yours faithfully
0
Comments
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Hi, any advice please - I know others have been given valuable advice on here0
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I have skim read and say it looks good - just a thought about the fact Metrolink has byelaws that apply I think, from other threads. So you could add to your point about the NTK being non-compliant, that in any case the land is covered by byelaws so falls 'under statutory control' as defined in the POFA 2012 Schedule 4, and as such there can be no keeper liability in any case even if they had jumped through the hoops of the second condition for keeper liability.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
You repeated a paragraph, but otherwise it looks good. Are you able to post up a pic of the signs before and after (or just after)?
If so, it would help in case there are other appeal points due to signageDedicated to driving up standards in parking0 -
Under your No3 The car park is free to Metrolink users, which I was,
Change to driver.
0 -
Thanks ever so much everyone. I've made changes as noted and will check out the bit about the byelaws .
Thanks again0
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