Parking Ticket appeals gone?

Jellybabie

MY letter from POPLA:

POPLA can only register and consider appeals against parkingcharge notices issued by a member of the Approved Operation Scheme administeredby BPA

The Operator who issued your parking charge notice is nolonger a member of the BPA and therefore your appeal cannot be resisted atPOPLA.

Umkomaas

POPLA haveinformed me that ParkingEye are no longer a member of the BPA

I'm totally confused by this. When did you get that?

bod1467

ParkingEye are very much BPA AOS members.

http://www.britishparking.co.uk/approved-operators

Note that they are listed as ParkingEye and not Parking Eye.

enfield_freddy

are they bringing claims in incorrectly ,not a member of a recognised ATA? , there paperwork says Parking Eye?

Half_way

I lost....................

any more details? will there be any appeal?

If I was presented with that sort of situation i would head right on down to the car park, and armed with a High-vis jacket, some traffic cones and a few leaflets and make sure that those entering the car park were made well aware of the predatory parking company and encouraged to shop elsewhere

ampersand

Redx wrote: »

its court, today , not popla

ie:- she is due in court at 1230 today , to defend herself against parking eye on a private B&M car park which is presumably watched over by PE (and not JAS)

#
#
Only just seen - apologies, had too many tabs open and was upended by POPLA talk and 2 seemingly contradictory sentences at first:
'The claiment will not be attending at the hearing in order to minimise the costs but his advocate from LPC Law is going.'[their i.e parkinglie's?]
BUT then
'Im going alone'.
#
Definite confusion now with further popla talk.
#
op - immaterial now, but your defence looked very underwritten and ill-researched. Have you now downloaded parking prankster's guide?
It's worth having to hand.
#
As others say, of course parkinglie are still members of BPA.
This is all peculiar, comnpounded by lack of dates.

Jellybabie

That wasnt my defence.... They were notes for me along with my Defence.

My defence was much the same as ParkingEye -v- Beavis.

This was mine....

ClaimNumber: claim number

BETWEEN:

ParkingEyeLtd (Claimant)

and

Enter your name

Defence

1) Iam name and address, and I am the defendant inthis matter. At the relevant time I was the registered keeper of a vehicle withthe registration mark of car reg no



2) Noformal admissions are made as to the identity of the driver.

The claimant has no locus standi



3) The case is based on apurported, but denied contract between the driver and claimant, the contractbeing brought by way of the signage on site. Nowhere on this signage is ParkingEyeLtd held out as the contracting party and consequently there is no contractwith the Claimant.



4) Thesignage around this site contains the following wording: “Parking Eye Ltd (Company No 5134454) is authorised by the landowner tooperate this car park for and on its behalf. We are not responsible for the carpark surface, damage or loss to or from motor vehicles, or general site safety.Parking is at the absolute discretion ofthe landowner”.(my emphasis)



5) Clearlyand unequivocally Parking Eye are acting as an agent of the landowner andconsequently any purported contract would be between the landowner and driver.The landowner has been disclosed andidentified as the Principal by Parking Eye, who themselves deny anyliability. The Claimant therefore, as agent, has no right to enforce thecontract and litigate in their own name. The claim should be brought by thelandowner, and this claim by the Claimant is bound to fail.



6) Itis believed that the Claimant may seek to rely on the cases of Vehicle ControlServices v HMRC (2013) and Parking Eye Ltd v Beavis and Wardley (CambridgeCounty Court, 2014) in a desperate attempt to justify their right to litigatein their own name. It is important to realise that these two cases differsignificantly in that the parking companies concerned were either considered tobe Principal or an agent of an undisclosed Principal in the parking contract,neither of which are the case here. In fact careful analysis of these two caseswould clearly confirm the Claimant’s lack of locus standi in this case.



7) Inthe unlikely event that the Claimant somehow attempts to claim they are thePrincipal in this case I would refer the court to the fiduciary duty thatParking Eye is believed to have to the Landowner. It is believed that theconsideration in any parking contract (the parking tariff) is collected byParking Eye for the Landowner by whom it is retained and it is the Landownerwho is consequently the Principal in the purported contract. Additionally, Parking Eye treat the chargesthey retain from drivers as consideration from the landowner for their servicesfor the purposes of VAT. The landowner is then presented with an invoice forthe VAT payable on these charges. Thecase of Vehicle Control Services v HMRC (2013) actually makes crystal clearthat if Parking Eye were the Principal then no VAT would be payable on theirretained charges and that Vehicle Control Services were considered Principalbecause they had no fiduciary duty to the landowner.



8) Additionally,in the oft-misquoted case of Parking Eye v Beavis and Wardley the Claimant wasconsidered to be the Principal because they paid the landowner to operate thecar park, were not paid by the landowner and did not account to the landownerfor any money collected. This is in stark contrast to the present case. Additionally,this matter is now before the appeal court in any case, and should be consideredto be no more than persuasive as a county court small claim judgment.



9) Parking Eye clearly state on the signage atthis location that they are acting as an agent of a disclosed and identifiablePrincipal (the landowner). They cannot now shift position and claim to beprincipal, despite their signage, and consequently cannot sue.



10) Thisclaim is therefore made by the wrong claimant, and ought to be struck out.



No Loss Suffered by Claimant.

11) Theclaim is based on damages for alleged breach of contract.



12) Itis a fundamental principle of English Law that a party who suffers damagesthrough breach of contract can only seek through court action to be put back inthe same position as they would have been if the breach had not occurred. Inorder to do so, they must demonstrate their actual, or genuine, pre-estimate ofloss.



13) Isubmit that no loss has been suffered by the Claimant as a result of anyalleged breaches of contract on my part or the part of the driver. Any lossesare due to the landholder, not the Claimant. I further submit that as theLandowner offers free parking, the loss to the landholder is zero or negligible.



14) Itherefore do not admit any loss by the Claimant and put it to strict proof ofthe loss it (and not its principal) have suffered.



No contract with the claimant.

15) Anycontract must have offer, acceptance and consideration both ways. There is no considerationfrom ParkingEye to motorist; the gift of parking is the landowner’s, notParkingEye’s. There is no consideration from motorist to ParkingEye; this is aFree car park, and there is no method or contemplation of payment of anyparking charges whilst on site. As such, the essential parts of the contractthat the claimant purports to exist are missing ab initio.




Failure to comply with Statute.

16) Inote that the claimant is seeking payment of an £amountparking charge. This relates to a claim, by them, that my vehicle wasparked in the car park at enter location here, fora period exceeding the free parking time.



17) Thebasis on which the claim is made is that, regardless of who was driving thevehicle at the time, I was the keeper, and as such the claimant is relying uponthe Keeper Liability provisions of the Protection of Freedoms Act 2012 (POFA).



18) Isubmit that the Claimant has not complied with the requirements of the Act, andas such is not entitled to rely on the statutory right to Keeper Liability as amatter of law.



19) Inorder to hold me, as registered keeper, liable for a parking charge the strictrequirements of Schedule 4 of POFA must be met.



20) Paragraph9.2 (h) of Schedule 4 states that the Notice to Keeper must :“identify the creditor and specify how andto whom payment or notification to the creditor may be made “



21) Inthis situation the creditor is clearly the Landowner, and not Parking Eye asindicated on the Notice to Keeper sent to me. The Claimant consequently cannotseek to rely on the provisions of POFA.



22) Additionally,there can be no creditor if parking is free.



23) Furthermore, POFA clearly envisages, and only legislates for, therecovery of the original parking tariff, not the Claimant’s inflated amount.Given that parking at this site is free, this means that on the day before theClaimant’s penalty notice was issued there was no outstanding sum to issueagainst, as payment of £100 had not been requested by that stage.



24) Paragraph 9(1) states: “A notice which is to be relied on as a notice to keeper for thepurposes of paragraph6(1)(b) isgiven in accordance with this paragraph if the following requirements are met.

(2)Thenotice must—

(d)specify the total amount of those parkingcharges that are unpaid, as at a time which is—

(i)specified in the notice; and

(ii)no later than the end of the day beforethe day on which the notice is sent bypost.”.



25) TheDepartment for Transport guidance on the Act also reinforces this point:



(5.3) “ It does not create any new form ofliability for parking charges or provide a route to claim parking charges whichwere not lawfully due in the first place”

and

(16.1)“Charges for breaking a parking contractmust be reasonable and a genuine pre estimate of loss. This means charges mustcompensate the landholder only for the loss they are likely to suffer becausethe parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associatedwith issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recoverbusiness losses and the intention should not be to penalise the driver.



26) As the £amount charge demand made by the Claimant was only made onthe day of the Notice to Keeper (NTK) being issued, and the NTK only statesthat this £amount is due, the NTK is defective, because the Claimant has not stated theamount actually owing for parking according to the tariff published on the siteor given the keeper (nor indeed the driver) any opportunity to pay any sum torectify the alleged breach of parking conditions.



27) The reason for this is clear - Theonly sum that is actually due to either the Landowner or the Claimant is theactual parking charge. As the parking is free, there can be no charge made, andconsequently there can be no case to pursue for repayment. A charge of £amount can neverbe a pre-estimate of loss to any claimant merely for a parking event in a freecar park, as if they did not pursue the driver/keeper, they would incur nolosses. This is not then pre-estimated loss as a result of the parking event,but as a result of pursuing the driver/keeper for the pre-estimated lossincurred in pursuing the driver/keeper. This is a circular argument, andclearly breaches the DfT Guidelines above in both the spirit and the letter.This cannot be the mischief that POFA intended to prevent.



28) Additionally,as the NTK fails to specify the time at which the free parking was not paidfor, which is itself a legal fiction, it also fails in this respect. In fact,the NTK fails in every respect to comply with the statutory requirements, andas such Keeper Liability cannot engage. The only party who can be pursued forany sum, if there is indeed any sum actually due to the claimant, is thedriver.



29) Itis averred, therefore, that this claim is not only by the wrong claimant, butis also against the wrong defendant, and as such, has no prospect whatsoever ofsuccess.



Purportedcontract in breach of the ConsumerContracts (Information, Cancellation and Additional Payments) Regulations 2013(the CCR)

30) Thecontract purported to exist between the driver and the claimant is a DistanceContract within the meaning of the CCR.As a result, for any contract to be valid, the claimant must comply with therequirements under the regulations.



31) Asno service was ever expressly requested, nor any charge expressly agreedbetween the parties, the Claimant cannot have complied with the regulations.Additionally, as none of the required information was provided in a durableform which the driver could keep before the purported contract was formed, thedriver is entitled to cancel such a contract.



32) Additionally,neither the driver nor I as keepergave 'prior express consent' or any consent at all for the allegedcontract and it is not for me to reimburse the claimant for foisting anunexpected and non-negotiated contract upon any driver of my vehicle.



33) As a result, there can be no contract between thedriver and the Claimant, and as such, there can be no charge owing either atthe point of NTK, or the point of claim.



34) This claim, therefore, fails ab initio on thisground as well as the failures by the claimant detailed elsewhere in thisdefence.



Inflated court costs

35) Finally, the claim includes a sum of £50, described asSolicitor’s costs. The claimant is known to be a serial litigant, issuing up to1,000 similar claims on a weekly basis, using the bulk processing service.Since these are fully automated, no intervention is required by a solicitor,and the Claimant is put to strict proof to show how this cost has beenincurred. The Claimant cannot rely on Nossen’s Patent Letter (1969) to justifythe charge, as this is part of their everyday routine, and no expert servicesare involved.

Asa result of the above, I deny the claim in full and intend to fully defend it,and submit that it ought to be struck out as having no reasonable prospect ofsuccess due to the Claimant’s failure to comply with the statutory requirementsfor Keeper Liability, or the CCR, and that it is clear this claim must fail atevery stage of the process. I therefore also reserve the right to apply for mycosts on dismissal under CPR 27.14(g) due to the unreasonable and vexatiousnature of this claim, when any reasonable person would know that this claim hasno foundation and no prospect of success

Notwithstandingthat the claim ought to be dismissed, I am willing to enter into AlternativeDispute Resolution, or Small Claims Mediation to resolve this matter withoutusing valuable court time and resources. I would suggest that the appropriateform of ADR would be a referral to the Parking on Private Land Appeals body(POPLA), as this is the specialist ADR provider for the Parking Industry.

Asa result, I invite the court to direct that the Claimant supply a POPLAVerification Code to me to appeal this matter to POPLA, and that the claim bestayed for 3 months to allow POPLA to rule on the matter, and as court orderedADR, I agree to be bound by the decision of POPLA. There is a 100% chance ofthis matter being settled by POPLA, and thus such an order would save expenseto both parties and valuable court time.






Ibelieve the contents of this defence to be true to the best of my knowledge.

Name Date:

Defendant

The letter from POPLA was dated 13/10/14 and clearly states POPLA can only register and consider appeals against a parking charge noticed issued by a member of the Approved Operator Scheme administered by BPA.

The operator who issued your PArking Charge notice is no longer a member of the BPA and therefore your appeal connot be registered at POPLA.

Jellybabie

Half_way wrote: »

any more details? will there be any appeal?

If I was presented with that sort of situation i would head right on down to the car park, and armed with a High-vis jacket, some traffic cones and a few leaflets and make sure that those entering the car park were made well aware of the predatory Id also parking company and encouraged to shop elsewhere

No appeal.... made to pay in 21 days and yes I'll be doing just that the fact B&M the land owner cant even reply. ..... Ive written to B&M and told them how discussed I am with the lack of compassion and lack of responce. My mate said I should rob the shop of the ammount Ive had to pay LOL

enfield_freddy

no , don,t rob them , just tell all your friends etc , by tweeting and emails , that B+M have failed to help you , and boycott shopping there .

Jellybabie

pmsl I wont Rob them but I will make the Carpark a war Zone and bombard B&M with countless emails and letters. Ive got my yellow Jacket at the ready and I will be printing some flyers