J.A.S Parking Ticket Help

Redx

they didnt say their duty is that their operative should mitigate the loss by informing the driver that leaving the car park contravenes the rules

in any case, they should have issued a popla code , so have they ?

if they have, have you checked the expiry date is valid and this year ? (2015)

posts 10 , 11 , 12 and 13 told you what would happen, and the next steps

chewy21

Redx wrote: »

they didnt say their duty is that their operative should mitigate the loss by informing the driver that leaving the car park contravenes the rules

in any case, they should have issued a popla code , so have they ?

if they have, have you checked the expiry date is valid and this year ? (2015)

posts 10 , 11 , 12 and 13 told you what would happen, and the next steps

Yes i got the code and did the code checker and the deadline is Mon Feb 23 2015.
I will take the next step now

Redx

ok, best find a recent JAS appeal and adapt it , the more recent the better, but deffo from 2014 onwards , a few of them are about on here

the newbies sticky thread also has links to popla appeal examples too

chewy21

I was going to send this from another thread, but i have highlight some parts which JAS seem to have covered so it is untrue. what you think? should i just remove them.



Re: JAS Parking Solutions PCN, reference code

27/01/2015

POPLA Code:

VRN:

Appeal Summary

I am the registered keeper of vehicle reg ............and I contend that I am not liable for the alleged parking charge. I wish to appeal against the notice on the following grounds:

The charge is not a genuine pre-estimate of loss
The inadequate signage makes no valid contract with a driver
JAS has no standing to claim on behalf of the landowner
JAS made no attempt to mitigate its loss
The terms of the (disputed) contract and unfair and unreasonable.

I detail each of those points below, but must first note that the rejection letter gives next to no detail which could lead to better understanding as to how JAS arrive at their claim. As a result, JAS seem to be attempting to “game” the independent appeals process by a display of bad faith.

Appeal Details

1) The charge is not a genuine pre-estimate of loss

The car park is provided “free” to all genuine customers. The car was parked in such a way as to cause absolutely no damage or obstruction and therefore no loss arose from this incident.

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.

JAS, when rejecting my appeal, has refused to provide any breakdown of cost issuing from the alleged breach, instead stating that “[JAS is] not under any legal obligation to answer the points raised in this format”. Thus, by refusing to substantively provide a breakdown of costs, JAS is improperly limiting my ability to examine the legitimacy of these claimed losses, and thus this appeal should be allowed on that basis alone.

In the past, JAS have submitted general business costs to POPLA and presented them as attendant losses. These are not losses at all. Staff whose wages are paid in any case do not count as losses stemming from breach. To establish those as losses, JAS would need to show that the staff were “significantly diverted from their usual activities” or that there was “significant disruption to their business” [HHJ Charles Harris in A Retailer vs Ms B (9th May 2012)]. Since the staff in this case are engaged in their usual activities, it follows that such costs can not constitute loss. IT systems (unless they are reinstalled after every breach - which would be ridiculous) do not count as losses. Professional advice sought from the BPA or external legal sources, unless that advice was specific to a particular case, do not count as part of a genuine pre-estimate of loss. I specifically call the Assessor to note that merely adding the boilerplate text “in this case” to a general business cost does not magically transform it into a loss derived from any alleged breach.

I furthermore stress that the costs of the POPLA appeal cannot be included in any pre-estimation of loss (if such a claim is made - again, absent of any responsive text from JAS, I am at significant disadvantage in knowing how its statement of loss is constituted). Patrick Troy of the BPA states specifically:

“What you cannot do though is add the per appeal fee to your Parking Charge Notice amount calculations - only 1.1% of tickets issued go to POPLA and as such could not form part of a Genuine Pre-estimate of Loss"

Similarly, inflating costs by adding in layers of management wages to check the validity of normal ticket processing staff are artificial, and should be rejected out of hand as pre-estimations of loss. The idea that any company would hire staff who were so incompetent as to require (for instance) two or three additional levels of supervisory checks to perform their basic duties is so egregious as to beggar belief.

Some Operators have taken to using the term “commercially justified” to describe its charges instead of a genuine pre-estimate of loss. This would be attempting to rely on Parking Eye vs Beavis and Wardley. That would be a pointless activity, since that case is scheduled for review by the Court of Appeal, as HHJ Moloney knew it would be, given that the case was covered by many caveats, and not backed by significant case law. In addition to this, POPLA assessor Chris Adamson specifically remarked (when Operator VCS attempted this assertion):

''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.’'

In this particular case, the JAS model is entirely different from Parking Eye’s in the Beavis case, since the revenue model for JAS is entirely at odds with Parking Eye’s, and JAS do not claim to be the principal in this matter, being mere agents for sign erection and ticket issuance.

The signs displayed at the car park also cast doubt upon the veracity of any losses. An example would be the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention; I put it to JAS that the signs present do not correlate to this. The signs state that the restrictions apply 24/7 including weekends and bank holidays, however the store is not open 24/7 so how can there be a potential loss during the full duration of the restrictions? This makes the terms stated confusing and not transparent. I would also request that JAS demonstrate how they reimburse the retailer for this potential loss from the revenue which they collect from ‘ticketing’ vehicles including the exact share of the sums received.

The charge that was imposed is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. This is clearly evident in the breach of Terms and Conditions listed as the parking notice states additional charges accrue after 28 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. Surely, if the initial charge of £94 can be reduced to £56.40 by early payment the charge is unreasonable to begin with.

2) Lack of adequate signage - no contract with driver

The JAS appeal refusal states that the claim in question is based in contract law (allegedly violating the terms of the contract by “[the driver having] left the premises and went out which is not authorised” and “you contractually agreed to abide by the terms and conditions”).

As the Registered Keeper of the vehicle I have visited the site since the Parking Notice was issued. This car park is entered via a busy road serving a large Tesco’s, a large council car park and no signs are visible until you are inside the B&M/ Dreams car park. Due to the barely legible size of the small print, I believe that the signs and any core parking terms the operator are relying upon were too small for any driver to see, read or understand. On this visit I also noted that the signs do not have a date on them so I do not believe they can form a contract.

A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third party 'charge' foisted upon legitimate motorists who are not 'customers' of JAS and not expecting to read a contract when they park. It would be necessary for any signs in the car park to be so prominent that the terms must have been seen/accepted by the driver.

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 sign makes reference to transfer and acceptance of tickets: No tickets are issued at all in this car park, leading to more confusion on a driver’s part. Since some of these undated conditions are void in this car park, how is a driver to know which conditions are to be adhered to, and which to be ignored?

The sign also says that JAS Parking will request DVLA keeper information, but in this case, an application was made by its debt recovery arm, Parking Debt Collectors, trading as Dara Debt Recovery, resulting in considerable confusion as to the proper appeal path. Again, I contend that by engaging in such confusing displays, JAS forfeits its right to any contract with any motorist.

3) Lack of standing/authority from landowner

J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, JAS have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question. Therefore JAS have 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 JAS to strict proof of the contract terms with the actual landowner (not a lessee or agent). JAS 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 JAS are entitled to pursue these charges in their own right.

I require JAS 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.

Statements like “we would assume that [an Operator] would issue legal proceedings” absolutely do not constitute transfer of authority.

4) No attempt to mitigate loss

JAS state that the driver was “seen leaving the car park” - omitting to say who saw this and when. I assume that they are referring to a parking attendant in their employ. Why did the parking attendant not approach the driver and bring the parking conditions to their attention? If JAS genuinely wanted to prevent loss to the retailer, due to the loss of a customer to a store if a parking bay wasn’t available to use due to the parking contravention, then this loss could be mitigated rather than waiting for the driver to leave the site and then placing a ticket on the car.

I state the above suggestions for mitigation while noting that JAS have provided no evidence whatsoever in their rejection letter that the vehicle was left in the car park while the driver went elsewhere. They have also not stated how long this alleged absence was (10 seconds? 1 hour? 5 days?). In general, this goes to the general non-responsiveness of the rejection letter. If the Operator wishes to pursue a claim for monies, recourse to unsupported and vague accusations scarcely create the impression of someone seeking redress in good faith.


5) Unreasonable/Unfair 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 on UTCCR 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 as to what must be paid and in what circumstances.

A small print sign which cannot be read until you leave your vehicle is far from 'transparent'.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of 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 fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

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

I contend it is wholly unreasonable to rely on signs with such small print and unclear conditions in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

I therefore respectfully request that my appeal is upheld and the charge is dismissed.

chewy21

can anyone help?

Coupon-mad

Covered here today and on all other JAS threads:

https://forums.moneysavingexpert.com/discussion/5163827

No need to bust a gut over it, submit it! You will win.

chewy21

his case seems a bit different, as i was not in the shop. i was just wonderinf if i shouls remove the red bits in my draft and sent it?

Thanks

Redx

remove anything that isnt true, then send it

Coupon-mad

Doesn't really matter - you will win as JAS can't show landowner authority in a way that POPLA accept.

BlackSpangle

Since you appear to be using my POPLA appeal template, make sure you alter the bit about the site being next to a Tesco's (although Tesco is so common across the UK, it's probably true).

The point I was stressing here is that asking a driver to take careful note of what's on a sign as he's driving by a car park entry point, while on a busy road is ridiculous. No-one could conceivably do that. The only way you could do so is to park your car inside the car park; according to PPC logic, you've automatically entered a contract at that point, but without knowing what the terms of that contract would be. Hence bad signage == no effective contract with driver.

Now, as for their letter stating that they waited for 10 minutes to decide that you really had left the car park: make them prove it. You don't say "I deny this happened", you simply say "I put JAS to strict proof that this happened". If - and I'll bet this is the case - all they have is some photos of a car parked in a car park, you reply in the rebuttal: "This does not show the contravention being alleged here".

And as pointed out above, these clowns usually supply "contracts" which are so redacted as to be useless - they are unsigned, undated and have all useful information removed. Now, the PPC doesn't get to send one contract to POPLA and another to you. So, you're basically saying that JAS cannot prove they have the authority to issue any tickets in the first place.

And lastly, I guarantee that their GPEOL calculations will be the same as they've issued for every other case - a steaming pile of fixed business costs which they would have incurred even if no ticket was ever issued (e.g. salaries). POPLA see this all the time, and if the appeal mentions it, most of the assessors will go for this line item in allowing the appeal.

But take heart - you're nearly at the end of this silly dance. Annoying, but that's the world in which we live.