NtK dated 71 days after parking incident

Redx

ok , that seems a lot better to me although I feel you could expand the legal points more, PLUS I would add a short bullet point menu just before all of the appeal points, so the assessor can easily see the points you are making before delving into them

like these ones from the newbies thread

https://forums.moneysavingexpert.com/discussion/comment/65951653#Comment_65951653

https://forums.moneysavingexpert.com/discussion/comment/66452330#Comment_66452330

notice how the points have more in them and one has a bullet point menu too

catsandhens

Great, I'm feeling much happier that I understand what this is about now. I hope attempt 3 is strong enough. I'm keen to get this submitted to POPLA tomorrow at the latest!



Dear Sirs

As registered keeper of vehicle registration number xxxxx I wish to appeal against the parking charge notice on the following grounds.

1) The Notice to Keeper was not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012.
2) The charge is not a genuine pre-estimate of loss
3) Lack of standing/authority from landowner
4) Unclear entrance signage - no contract with driver

Explained below:

1) The Notice to Keeper was not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012.

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing keeper liability for a parking charge. Where a Notice to Keeper is to be relied upon to establish liability it must, as with any statutory provision, comply with the Protection of Freedoms Act 2012 schedule 4.

a) The Notice to Keeper was sent outside the allotted 56 day time frame as specified in the Protection of Freedoms Act 2012 schedule 4 paragraph 8, sub-paragraphs (4) and (5).

Alleged contravention date: 3rd November 2014.
Notice to Keeper issued: 13th January 2015.

b) The Notice to Keeper does not specify the 'period of parking' as required in the Protection of Freedoms Act 2012 schedule 4 paragraph 8, sub-paragraph (2).

UK Parking Solutions has not met the keeper liability requirements and therefore keeper liability does not apply. The parking company can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As UK Parking Solutions have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.

2) The charge of £100 is a penalty and not a genuine pre-estimate of loss and is therefore not enforceable.
UK Parking Solutions state in their letter of rejection of my initial appeal that their charge represents a genuine pre-estimate of loss. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require UK Parking Solutions to submit a full breakdown of how these losses are calculated in this particular area and for this particular "contravention". UK Parking Solutions cannot lawfully include its operational day-to-day running costs (e.g. provision of signs and parking enforcement) in any "loss" claimed. Not only are those costs tax-deductible, but were no breaches to occur in that area, the cost of parking "enforcement" such as it is would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. My research reveals that the charge for parking in xxxxx car park for a short period was 75p in November 2014, therefore, this sum of 75p represents the only actual loss to UK Parking Solutions or the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

Furthermore, in the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated: "Genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If UK Parking Solutions presents what it describes as a genuine pre-estimate of loss statement I require them to show documentary evidence regarding exactly when this "pre-estimate of loss" was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put UK Parking Solutions to strict proof that they ever had such a meeting.

If there was no meeting to discuss the charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94: "I do not believe the evidence…that there was ever an attempt at a genuine pre-estimate of loss.

"I have found that there was no meeting in 2007…it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance…
"Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate…shows to my mind that in so far as the claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other.
"In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty."

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as UK Parking Solutions made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might "tolerate".

I contend that UK Parking Solutions's figure of £100 (or a reduced rate of £60) is a penalty clause in terrorem to deter breach and cannot be commercially justified.

POPLA assessor Chris Adamson stated in June 2014: "'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 Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of 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."


3) Lack of standing/authority from landowner
I do not believe that UK Parking Solutions has demonstrated a proprietary interest in the land of the car park, because they have no legal possession which would give UK Parking Solutions any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, UK Parking Solutions’ lack of title in this land means they have no legal standing to allege trespass or loss, if that is the basis of their charge.
I believe that there is no contract with the landowner/occupier that entitles them to levy these charges and therefore UK Parking Solutions has no authority to issue parking charge notices (PCNs). This being the case, the burden of proof shifts to UK Parking Solutions.
In POPLA case Ref 1771073004, POPLA ruled that a witness statement was "not valid evidence". This witness statement concerned evidence that could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

I put UK Parking Solutions to strict proof to provide POPLA with a copy of the unredacted, contemporaneous contract between UK Parking Solutions and the landowner as I contend the UK Parking Solutions's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between UK Parking Solutions and its client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19 December 2013.

In that case the judge found that, as the operator did not own any title in the car park: "The decision to determine whether it is damages for breach…or a penalty…is really not for these claimants but…for the owners. We have a rather bizarre situation where the claimants make no money apparently from those who comply with the terms…and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that…the Claimants are the wrong claimants. They have not satisfied this court that they have suffered any loss…if anything, they make a profit from the breach."

I challenge UK Parking Solutions to rebut my assertion that its business model is the same "nonsense" and is unenforceable. UK Parking Solutions cannot build its whole business model around profiting from those it considers to be in breach of a sign, on land where it has no locus standi, and then try to paint that profit as a perpetual loss.

4) Unclear entrance signage - no contract with driver
I believe that the signage of xxxxx car park was not compliant with the BPA Code of Practice on November 3rd 2014, the alleged contravention date, and could not be seen before parking, so no valid contract could have been formed.
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It cannot be formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) I believe that this car park had no entrance signage with information about terms and conditions which could be readable at eye level from within a moving vehicle on arrival in darkness. I put UK Parking Solutions to strict proof to provide POPLA with evidence that such signage was in existence on November 3rd 2014 in the form of a site map and dated photos of any entrance sign(s) taken in darkness without a camera flash.

There could not have been an agreement to pay. No consideration/acceptance could have 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 UK Parking Solutions and not expecting to read a contract when they arrive at night and see no clear signs. 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' and so there was no contract established.

In summary, aside from there being no keeper liability whatsoever, UK Parking Solutions are attempting to enforce a punitive charge for an alleged contravention of a contract which could not have been made. I respectfully request therefore, that my appeal is upheld and the charge is dismissed.

Yours faithfully

Redx

ok, that looks a lot better to me

catsandhens

Great, thank you very much for all your help & suggestions. I'll submit this to POPLA now and post here what happens next....

catsandhens

I've been sent the evidence bundle which UKPS have sent to POPLA. I'm in the process of rebutting and I'd just like to check whether the agreement between UKPS and the car park's owner is a valid contract or not:

httx://tinypic.com/r/24m6r2w/8

They have also included a witness statement.

Many thanks in advance for any help. :-)

Coupon-mad

Who is Reginald Brian Payne? Landowner? Do you know for sure?

Just as importantly, what did their 'GPEOL calculation' look like about loss?

catsandhens

Thank you Coupon-mad for getting involved!

Coupon-mad wrote: »

Who is Reginald Brian Payne? Landowner? Do you know for sure?

Ah, good point!
I have no idea who he is.
So how do I word a rebuttal of their agreement?

Coupon-mad wrote: »

Just as importantly, what did their 'GPEOL calculation' look like about loss?

The rest of the evidence pack is a load of rubbish:

There is no GPEOL calculation. This is as close as they get:
"If the vehicles using our car parks extended their stay by just 10 minutes without paying the associated tariff we would lose revenue in access (sic) of £100,000 pa which would not be sustainable to us as a company or an acceptable loss to our clients.
Therefore contrary to the assumption of many motorists financial losses to the company are directly incurred as soon as a contravention to the terms of parking as advertised is made and a PCN is issued. With regards to justifying the amount of the PCN the considerable costs of dealing with an individual appeal demonstrate that there is a large cost (and therefore loss) to us as a company and we are therefore justified in the amount of PCNs to cover these not inconsiderable costs."

They have supplied photos of the entrance to the car park which clearly show that there is no entrance signage, very helpfully backing up my appeal point to that effect.

They claim that I have admitted to being the driver. I was not and have never supplied the driver's name.
They say that "no DVLA application was made" but that is how they discovered that I am the keeper of the vehicle.

The have supplied photos of my vehicle which could have been taken anywhere and at any time.

That's about it. I just wanted to check on the agreement with the said Reginald Brian Payne in case that constituted their one piece of valid evidence. :-)