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Please kindly have a look at my POPLA appeal
Fleritta
Posts: 33 Forumite
Dear experts,
First of all, thank you very much for your help and support! I am incredibly grateful for time you devote to helping people in need like myself.
Please kindly have a look at my Popla appeal. I have spend nights and nights researching the forum on hope of producing something decent. Hopefully I succeeded...
My initial case was discussed here:
https://forums.moneysavingexpert.com/discussion/5143008
Please also find here other documents:
Parking Sign: http://i57.tinypic.com/349bgoy.jpg
Photo taken by PPC: http://i61.tinypic.com/2a3z1h.jpg
And here it is my POPLA Appeal. I am very sorry it is a bit long...
Thank you very much for your time!
Dear POPLA Assessor,
I am the keeper of XXXXXXXXX. On 29th December 2014 I received an invoice of £100 for a “parking charge” at the XXXXXXX underground parking from Parking Ticketing Limited (PTL) stating that the vehicle was parked on private property in contravention of the site parking restrictions as displayed on signage or permit.
First of all, I am a lawful resident of the XXXXXX Building for over two years now with a VALID parking permit that, in my opinion, was clearly displayed in the windscreen of the vehicle. Therefore I wish to appeal the abovementioned Parking Charge Notice from PTL on the following grounds:
1) Charge not a genuine pre-estimate of loss
2) This charge is not a contractually agreed sum
3) Notice fails to identify the exact location and Creditor liability
4) Lack of standing/authority from landowner to issue tickets
1) Charge not a genuine pre-estimate of loss
First and foremost, in this particular case no loss could be identified as the keeper of the vehicle is a lawful resident of the above-mentioned residential property and holds a VALID parking permit that was displayed in the windscreen of the vehicle.
If P.T.L. insists that £100 is sought as damages for breach of contract then under established contract law the parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable.
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 penalize the driver."
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. A genuine pre-estimate of loss calculation must be a sum which might reasonably flow directly as a result of a parking event. P.T.L. cannot reasonably include in the calculation, '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. In fact, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.
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’’
Therefore, the demand for £100 is punitive, unreasonable, exceeds an appropriate amount and has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty.
Furthermore, the sum exceeds the BPA’s own Code of Practice. The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.
It seems that the ‘fixed charge’ of £100 applies whatever the alleged contravention. This suggests to me that no calculation of loss has been made in advance for the various listed contraventions. I contend that P.T.L. has chosen £100 because it is the maximum amount set as ‘tolerable’ by the BPA.
The appellant requires P.T.L. to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.
Also P.T.L. charge cannot be recognized as 'commercially justified'. 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:
''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, recognizing 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.'
'
I therefore respectfully request that my appeal is upheld and the
charge dismissed.
2) This charge is not a contractually agreed sum
In response to my appeal P.T.L. claims the signage in underground parking states is a Contractual Notice and by parking at the location you agree to the terms and conditions.
If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. Failure to provide VAT invoice raises doubts whether the business operation on this car park has been registered for business rates.
I require Parking Ticketing Ltd to provide a VAT invoice, details of the daily rates of parking and proof that this chargeable regime at this location is registered for business rates.
3) Notice fails to identify the exact location and Creditor liability
Firstly, the Notice received is lacking to identify the exact location of the parking except “The Oxygen Building”. In Paragraph 8 (2)(a) of Schedule 4, it states Notices must ‘specify the...land on which it was parked and the period of parking to which the notice relates’.
Moreover, the Notice fails to identify the Creditor. Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to P.T.L., there is no specific identification of the Creditor who may, in law, be P.T.L. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
4. Lack of standing/authority from landowner to issue tickets
As a parking management company parking P.T.L will need to have the proper legal authorization to contract with the consumer on the landowner/landholder’s behalf. I believe there is no contract which entitles P.T.L. to pursue these charges and to form contracts with drivers (being allowed to 'issue PCNs' is not the same thing as forming contracts with drivers).
In my original appeal I asked for proof of P.T.L.’s standing but none was forthcoming so I have seen no evidence that P.T.L. have a legal status to enforce £100 charge or assignment of rights to pursue PCNs in the courts in their own name and standing to form contracts with drivers themselves.
Parking Ticketing Ltd is a member of the British Parking Association, and the BPA Code of Practice states, in Section 7.1, that the operator must have written authority from the landowner to recover parking charges, including pursuing through court action in their own name. Therefore, I require P.T.L. to provide a full copy of the contemporaneous, signed & dated (unedited) contract with the landowner at the location to pursue this charges in their own name as creditor. In the event that witness statements are submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance.
This is an additional reason that supports my respectful request that my appeal is upheld and the charge dismissed.
Yours faithfully,
First of all, thank you very much for your help and support! I am incredibly grateful for time you devote to helping people in need like myself.
Please kindly have a look at my Popla appeal. I have spend nights and nights researching the forum on hope of producing something decent. Hopefully I succeeded...
My initial case was discussed here:
https://forums.moneysavingexpert.com/discussion/5143008
Please also find here other documents:
Parking Sign: http://i57.tinypic.com/349bgoy.jpg
Photo taken by PPC: http://i61.tinypic.com/2a3z1h.jpg
And here it is my POPLA Appeal. I am very sorry it is a bit long...
Thank you very much for your time!
Dear POPLA Assessor,
I am the keeper of XXXXXXXXX. On 29th December 2014 I received an invoice of £100 for a “parking charge” at the XXXXXXX underground parking from Parking Ticketing Limited (PTL) stating that the vehicle was parked on private property in contravention of the site parking restrictions as displayed on signage or permit.
First of all, I am a lawful resident of the XXXXXX Building for over two years now with a VALID parking permit that, in my opinion, was clearly displayed in the windscreen of the vehicle. Therefore I wish to appeal the abovementioned Parking Charge Notice from PTL on the following grounds:
1) Charge not a genuine pre-estimate of loss
2) This charge is not a contractually agreed sum
3) Notice fails to identify the exact location and Creditor liability
4) Lack of standing/authority from landowner to issue tickets
1) Charge not a genuine pre-estimate of loss
First and foremost, in this particular case no loss could be identified as the keeper of the vehicle is a lawful resident of the above-mentioned residential property and holds a VALID parking permit that was displayed in the windscreen of the vehicle.
If P.T.L. insists that £100 is sought as damages for breach of contract then under established contract law the parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable.
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 penalize the driver."
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. A genuine pre-estimate of loss calculation must be a sum which might reasonably flow directly as a result of a parking event. P.T.L. cannot reasonably include in the calculation, '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. In fact, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.
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’’
Therefore, the demand for £100 is punitive, unreasonable, exceeds an appropriate amount and has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty.
Furthermore, the sum exceeds the BPA’s own Code of Practice. The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.
It seems that the ‘fixed charge’ of £100 applies whatever the alleged contravention. This suggests to me that no calculation of loss has been made in advance for the various listed contraventions. I contend that P.T.L. has chosen £100 because it is the maximum amount set as ‘tolerable’ by the BPA.
The appellant requires P.T.L. to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.
Also P.T.L. charge cannot be recognized as 'commercially justified'. 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:
''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, recognizing 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.'
'
I therefore respectfully request that my appeal is upheld and the
charge dismissed.
2) This charge is not a contractually agreed sum
In response to my appeal P.T.L. claims the signage in underground parking states is a Contractual Notice and by parking at the location you agree to the terms and conditions.
If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. Failure to provide VAT invoice raises doubts whether the business operation on this car park has been registered for business rates.
I require Parking Ticketing Ltd to provide a VAT invoice, details of the daily rates of parking and proof that this chargeable regime at this location is registered for business rates.
3) Notice fails to identify the exact location and Creditor liability
Firstly, the Notice received is lacking to identify the exact location of the parking except “The Oxygen Building”. In Paragraph 8 (2)(a) of Schedule 4, it states Notices must ‘specify the...land on which it was parked and the period of parking to which the notice relates’.
Moreover, the Notice fails to identify the Creditor. Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to P.T.L., there is no specific identification of the Creditor who may, in law, be P.T.L. or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
4. Lack of standing/authority from landowner to issue tickets
As a parking management company parking P.T.L will need to have the proper legal authorization to contract with the consumer on the landowner/landholder’s behalf. I believe there is no contract which entitles P.T.L. to pursue these charges and to form contracts with drivers (being allowed to 'issue PCNs' is not the same thing as forming contracts with drivers).
In my original appeal I asked for proof of P.T.L.’s standing but none was forthcoming so I have seen no evidence that P.T.L. have a legal status to enforce £100 charge or assignment of rights to pursue PCNs in the courts in their own name and standing to form contracts with drivers themselves.
Parking Ticketing Ltd is a member of the British Parking Association, and the BPA Code of Practice states, in Section 7.1, that the operator must have written authority from the landowner to recover parking charges, including pursuing through court action in their own name. Therefore, I require P.T.L. to provide a full copy of the contemporaneous, signed & dated (unedited) contract with the landowner at the location to pursue this charges in their own name as creditor. In the event that witness statements are submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance.
This is an additional reason that supports my respectful request that my appeal is upheld and the charge dismissed.
Yours faithfully,
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