CP Plus and appealing to POPLA

Aaron_Aadvark

albert_tatlock wrote: »

Just received an email from POPLA with CP Plus's evidence it states that part of its pre-estimate of loss is the cost of my appeal to POPLA how could they include this in a Pre-estimate even before they knew I was going to appeal it?

They cannot.

This just shows what a fabrication their "Genuine" Pre-Estimate Of Loss is. THE BPA Ltd say that POPLA should be free to the motorist but do not stop the parking companies trying to charge for it whether the motorist appeals or not.

albert_tatlock

here's a summary of CP Plus's evidence.




Case Summary – ************
We received correspondence from Mr ******* who appealed his PCN on the basis that he believes that the Charge is not a genuine pre-estimate of loss and that the Notice is not compliant with POFA.
Poplar 2000 has 2 hours free parking, after which charges apply. We have not received payment for the additional 17 minutes that this vehicle remained on site, therefore our initial loss is the £12 that should have been paid by Mr******* had they complied with the Terms and Conditions outlined on the prominent signage displayed throughout the site (as shown by the site signage plan and images in Section F).
Enforcement and the issue of PCNs is recognised as asset protection and as the principal or lease holder of the site it is incumbent on us and part of our contractual responsibility to manage the facility to the best of our ability in order to either generate the maximum amount of revenue possible for the land owner or lease holder or to keep our clients allocated parking clear of fly parkers and for the actual use of those who are entitled to park, be it an office allocated
parking area, a retail park or a persons individual parking space or drive way. There are a number of costs incurred in the continuous enforcement process that are a necessity in making sure drivers adhere to the parking T&Cs advertised and the chasing up of any outstanding and unpaid PCNs.
That said, the table below outlines and details the costs that we estimate, at the time of issuing the PCN, would be incurred should a breach arise.
As you can see above, our genuine pre-estimate of loss totals £109.34. The amount outstanding on this PCN is £100; therefore Mr ******* claim that the Charge is not a genuine pre-estimate of loss is refuted. We also note that Mr ******* has not offered any evidence as to why he believes the Charge to have exceeded the appropriate amount; he simply states that in his opinion it does. We contend that that the burden of proof lies with the motorist to lay out their reasons with supporting evidence as to why the charge is not appropriate. In Parking Eye v Beavis and Wardley, HHJ Moloney states “if breach without compensation became widespread the business would plainly suffer, both because [the Operator] would have no income and because its ‘suppliers’ the landowners would not achieve their commercial objectives. In such circumstances it would be permissible to specify a proportionate (not extravagant) sum as compensation for each individual breach even though it bore no direct relationship to the loss caused by that one breach.”
As such, as outlined above, we believe that the Charge reflects a proportionate amount that we should be compensated.
Determining Costs
There are two methods lawfully available to CP Plus Limited by which such costs can be determined. Firstly, it would be open to CP Plus Limited to leave damages ‘at large’, and therefore determine the quantum of damage on a case by case basis. This method would mean the cost of recovering the losses may, in some cases, be less than the cost of the PROCESS NOTES Estimate
Initial Loss =Unpaid Parking Fee Cost of a parking permit for Poplar 2000 for a car for 2-24 hours £16
DVLA CHARGE DVLA cost for requesting the Owner/Keeper details £2.50
ANPR Image Verification For ANPR cases only - we are required by the BPA to check the data to confirm it's correct £0.75
Document Print Documents are all printed externally by a supplier for which a cost per document is applied £0.60
Postage Charge Postal cost per Notice or appeal response sent plus envelopes £3.68


Responding to Appeal Cost of Appeals Executive including Employer’s NI to respond to appeal £11.83
Responding to POPLA Appeal
Cost of Compliance Co-ordinator including Employer’s NI to administer the POPLA Appeal, collate required
information and build, print sign off and send POPLA evidence pack. £73.98
£109.34
PCN, while some undoubtedly would be considerably more. It would be highly impractical to employ this method, due to the administrative burden of keeping track of what resources had from time to time been employed to any particular point in time and any particular car park. The second lawful method of determining the quantum of damages is through the mechanism of liquidated and ascertained damages – this is the mechanism which CP Plus Ltd has elected to adopt. Should there be any doubt as to the legitimacy or enforceability of a liquidated and ascertained damages clause; Appendix 1 contains the relevant paragraph from Chitty on Contracts, 31st Edition, paragraph 26-
171: “Where the parties to a contract agree that, in the event of a breach, the contract-breaker shall pay to the other a specified sum of money, the sum fixed may be classified by the courts either as a penalty (which is irrecoverable) or as liquidated damages (which are recoverable). The clause is enforceable if it does not exceed a genuine attempt to estimate in advance the loss which the claimant would be likely to suffer from a breach of the obligation in question.
Recent decisions suggest that a clause which provides for an additional payment to be made by a party who is in breach of the contract may also be enforceable, even if it was not strictly speaking a pre-estimate of the likely loss, if it was “commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. If the clause is not void as a penalty, it is enforceable irrespective of the loss actually suffered. The purpose of the parties in fixing a sum is to facilitate recovery of damages without the difficulty and expense of proving actual damage.”
Business Model/Background
A parking management business comprises of a number of elements and the element that requires the most resource is enforcement of the parking terms and conditions of a car park. Our business model does not rely on the imposition of Parking Charge Notices but rather on the management of parking facilities and, where charges for parking apply, protection of income.
This sum, and the calculations which have been made in setting it, has been approved and agreed by the landowner and/or his agent of the site.
We would contend that it is too late now for the appellant to indicate their unhappiness with the parking charge – this should have been done as soon as they saw the clear and ample signs that stated the parking terms and conditions and charges at the location - if the appellant was not prepared to pay such charges and was unhappy with the contract terms, they should not have remained at the location.
Signage
We confirm the signage is displayed in accordance with all relevant laws and regulations including those pertaining to their visibility outside of daylight hours. All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non prescribed signs. Advice and working drawings may be obtained from traffic.signs@dft.gsi.gov
We therefore contend that all of the signs on site comply with the requirement to be a display of charges and furthermore note that there are no regulations within the DfT manuals for traffic signs that relate to off street or motorway service area parking signs other than the requirement to utilise the ‘P’ for parking symbol (see below) that our main entrance signs comply with.
The signage on site is located either directly below or close to lampposts. We confirm the signage conforms to lux levels that allow drivers to clearly see signage within the car park. BS Lux levels are as follows:
TABLE B. Recommended levels of lighting for outdoor car parks and multi-storey roof level – BS 5489 part 9
Area.........................................E(average)/ lux.............E(minimum)/ lux
Rural, Zones E1 and E2..............15...............................5
Urban, Zones E3 and E4.............30...............................10
Multi-storey roof level*...............30................................10 We have provided clear evidence that by staying at the location, the motorist has accepted all of the prevailing terms & conditions of the parking contract including the charges for breach of that contract. There are a large number of signs at the parking location, both at the entrance and throughout the site which offers the parking contract to the motorist, and sets out the terms and conditions of the parking area upon which the operator will rely, and upon which, by remaining at the location, the motorist has agreed to be bound by – these terms and conditions clearly show the amount which will become payable if the terms and conditions are breached. We can confirm that we have the authority to act on behalf of the landowner as outlined in the signed witness statement in Section G. POFA is not binding on parking companies. We have not stated on this PCN that we are issuing this Charge under POFA and therefore Mr ******* claim that the Notice is non-compliant with POFA has no relevance to this case. We highlight that the Notice to Keeper was sent to Ted Utilities Water PLC so the fact Mr******* appealed from a personal address and personal email, shows to us that he was the driver at the time and therefore keeper liability does not need to be established. We maintain that we have received no genuine mitigating circumstances or evidence for which we should cancel the PCN and our position remains that Mr******* entered into a valid contract and should pay the valid charges as per the signage on the site.

albert_tatlock

bod1467 wrote: »

Been covered loads of times here - they can't, so that's why you send a rebuttal of their evidence.

How do I go about a "rebuttal of their evidence?


Many thanks for taking the time to reply.

bod1467

Search this forum for Rebuttal.

albert_tatlock

My appeal was due to be considered on the 25th Feb 2015 but I have heard nothing from POPLA since 17th Feb I couldn't even access my details on their website. I then received this e-mail from POPLA today.
To say I’m disappointed and confused is an understatement, just what is going on?
Dear Mr Tatlock,
Before your appeal was determined, it was adjourned pending a decision of
the Court of Appeal in the case of ParkingEye Limited v Beavis
(B2/2014/2010).
As you will be aware, the decision of the Court of Appeal has now been
handed down. A copy of the judgment is available on the POPLA website.
As previously stated would happen, the Lead Adjudicator has directed that
the case will be adjourned for a further 21 days. The case will therefore not be
listed before 21 days in order to allow both parties to make any
representations in light of the Court of Appeal decision. It does remain the
position that it is for the party seeking to rely on any authority from a case in
the higher courts, to explain how they submit it relates to the appeal in
question and in particular the matter to be determined.
Since a larger than usual number of appeals will therefore now fall to be
considered on or after the same day, there may inevitably be some delay
before your case is decided.
Yours sincerely
R Reeve
POPLA Administrative Team

I Have replied to POPLA- Dear POPLA, I do not understand what the attached file means could you please explain it to me in layman's terms, also my appeal was due to be considered on the 25th February 2015 I have since not received any correspondence to say that it had been adjourned for any reason whatsoever we are now almost 9 weeks on and you have informed me that it will be at least another 3 weeks before my case is considered. Why have I not had any notification that there was an adjournment? I have tried several times to access my case on your website but there appears to be no record of this and I just get an error message.

Regards

albert_tatlock

prjohnsonnn10

Hi - any news on how the POPLA appeal went chaps?


thanks