JASPS Appeal

Redx

also add that the operative did not mitigate any potential losses by speaking to the driver and advising them of any signage or rules - all they seemingly did was to take pictures and so aided and abetted the driver in any so called breaking of any "rules"

but mainly concentrate on the above replies as its one of those that you will likely win on

reading through your opening post, I hope your popla appeal was a proper JAS oriented popla appeal copy and paste, not just the template letter ?

the template letter goes to the PPC , not popla

the popla appeals are more involved and several JAS examples of popla appeals are already on this forum

tyrrell5953

Hi Redx, Thanks for your comments.

I sent the template letter to PPC however when it came to do the Popla appeal I was a little bit hasty i think and i just copied and pasted my comments from the Letter into the appeals box (making some minor adjustments for context)

Post #7 shows what I put in the Popla appeal.

Do you think thats a problem what I have put?

Redx

frankly, I think its appalling and have no idea if POPLA will accept it

my advice is submit a recent jas type popla appeal asap and also rebut anything in their "evidence pack" , otherwise you could snatch defeat from the jaws of victory

at the moment you will be very lucky if you won on not a gpeol , so get a full appeal in asap

like this previous one

https://forums.moneysavingexpert.com/discussion/5093141

check these too

https://forums.moneysavingexpert.com/discussion/5075727

https://forums.moneysavingexpert.com/discussion/5112138

tyrrell5953

Appreciate the comments.

Considering that is what I have already sent to POPLA they won't let me change it or submit another appeal I am assuming a rebuttal of the evidence pack is the only way to go now.

Redx

send it as additional appeal points and also check the links I gave you for suitable rebuttals

they will decide what they allow , and/or they will send your points back to JAS for further rebuttals by JAS

you definitely used not a gpeol so you can expand that point, plus any other points you made, plus rebuttals too

any other points they introduced are fair game for your rebuttals , even if the info comes from those other appeals I linked

make sure you rebut the redacted copy of the landowners statement and insist on full disclosure as you cannot allow popla to rule on a redacted document about redacted sites , especially as neither JAS nor STAPLES are the landowner based on the above

tyrrell5953

Thanks Redx I will draft something now.

tyrrell5953

Thanks everyone for the comments and links so far. The link to BlackSpangle case was excellent and so I managed to use a lot of the wording they kindly posted and amend it where required for my case...

Thoughts on the below would be appreciated before I send to POPLA.



Dear POPLA Adjudicator,

Re: JAS Parking Solutions PCN, reference code xxxx
POPLA Code: xxxxxxx
VRN: xxxxxxx

I am the registered keeper of vehicle reg xxxxxxx and I contend that I am not liable for the alleged parking charge. Following receipt of JAS Parking solutions evidence I wish to make the following additional points in response.

JAS State;

"The male driver with his passengers was seen leaving the car park after they had visited the store, this is a breach of the car parks terms and conditions."

I would point out that;

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 POPLA appeal evidence of the registered keeper of the vehicle leaving the car park.

JAS State;

“I have attached a copy of our pre-estimate of loss along with a copy of the sign boards and our contract with the landowners agent; please note that all names and address have been removed as we have been asked to keep this information confidential. I will send a full copy of this contract will be sent to you, POPLA, only”

Dealing with the submission of a two documents intending to show a contract with the Landowners agent I would point out that;

J.A.S do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their rejection letter and POPLA appeal evidence, 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.

With regards to the evidence documents entitled ‘Staples contract to be sent to POPLA.pdf’ and ‘Staples contract to be sent to POPLA 2.pdf’. The contract from Staples is so heavily redacted as to render it without any value as evidence whatsoever. It has no date on it; it has no signature on it; it does not identify that the signatory has the appropriate authority within Staples to enter into such a contract; it does not even list the location of the alleged contravention as one which JAS has authority to patrol (because all locations have been redacted from the submitted evidence).

What is admitted in the evidence is that Staples is not the landowner. There is no copy of the contract from landowner to tenant to illustrate that even Staples has the authority to use JAS to issue tickets.

To summarise: JAS has not even begun to demonstrate that it has standing to issue tickets at the site from where the ticket was issued. This is in clear violation of section 7 of the BPA code of practice. As I submitted in my appeal, a statement like “we would assume that JAS Parking Solutions would seek legal action” does not convey the authority to do so. The BPA requires that “[the Operator has] the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary”. This transfer of authority is entirely missing from the contract, even if were not so redacted as to be useless as evidence.
It should be noted that this redacted contract has been the factor upon which other POPLA appeals have gone against this particular Operator, most recently from Assessor Karunairetnam.

Dealing with the submission of a per estimate of loss I would point out that;

JAS has still not managed to come up with a valid set of calculations of demonstrable losses: merely attempted to claim a set of fixed business costs as losses. Numerous POPLA decisions have cited this false accounting as reason enough to grant an appeal, and it does not seem that this Operator has taken any action to improve the presentation of their true estimate of losses.

DVLA and Processing Costs: The DVLA KADOE system charges £2.50 per query. JAS initially state their loss as being £15, but I would also state that since I appealed this case without waiting for the Notice to Keeper, it cannot be a cost realised in this ticket issuance.

Parking Attendants Salaries: This is a fixed business cost. I cannot be made to believe that writing parking tickets is not somehow an expected duty of a parking attendant.

Appeals Staff Salaries: Again, a fixed business cost. BPA membership requires an Operator to have an appeals process. As such, it cannot be a loss generated by any parking contravention. Again, is JAS really maintaining that appeals staff are significantly diverted from their normal duties by processing appeals? What, then, are their normal duties, if not appeal handling?

Office Management: Again, a fixed cost of doing business. These people would be employed anyway to perform the jobs of collation and data preparation. Moreover, since only around 2% (at best) of cases go to POPLA, the inclusion of the POPLA costs would need to be divided by 50 to count as an estimated loss. In any case, a contravention would not divert them from their normal duties, and is thus not an estimated loss.

IT System Management: Is JAS really making the case that they need to reinstall and maintain their IT systems per ticket issued? That is a plainly ludicrous claim, and obviously designed to make a fixed business cost masquerade as a loss emanating from the alleged breach of contract.

At best I can see losses of around £7.00 (DVLA fees and Stationery/Postage) from these figures submitted by JAS . Thus the £94 claimed becomes a penalty charge, which is unenforceable.


JAS State;

“Our terms and conditions are clearly written on our bright yellow sign boards that we have displayed throughout the car park, within the car park in question we have 5 of these sign boards including one at the entrance. As stated before as an approved operator of the BPA we are audited yearly, this includes the size of our sign boards, font size, colour and the information printed, We pass our audit every year, Our Sign board sizes are 768mm by 650mm, BPA require the signs to be 450mm by 450mm. During an audit the auditor visits our sites to check the positioning of our sign boards, again we pass this every year.

Our sign boards clearly state

Notice to Driver:
When parking in this area/and or car park you are agreeing to the above terms and entering into a contract for parking. J.A.S Parking Solutions is authorised by the land owner for parking enforcement and will issue parking charge notices to vehicles or by post in the event of a breach of the above terms and conditions.”

I would point out that;

The JAS evidence states and highlights 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 Basildon Town Centre, a large council car park, Basildon Police Station and no signs are visible until you are far enough inside the Staples/Carphone Warehouse car park, with no room to maneuver the car around to exit the car park that as a driver you are left with no choice but to enter the 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.'

I would also like to deal with the submission of the photographic evidence and reproduction of the PCN;

I see a set of pictures of the car which is registered to me, in a car park with spaces to the left and right of it as well as behind it. All this would demonstrate is that the car was in the car park and that there was still parking availability, meaning the retailer (and thus its agent) could not possibly suffer loss by denial of parking resources.

The reproduction of the PCN, which is unsigned contains no descriptions other than “male” for the driver of the vehicle. It is true that one of the numerous drivers insured for this vehicle is male. While that eliminates around 50% of the population of this planet, it is entirely unclear that it meets any standard of proof for showing that there was a contravention. There is no named witness or continuous video feed to act as any sort of corroboration for the allegation of breach of terms and conditions.

To reiterate: the evidence as submitted by the Operator does not show the breach of the contract they claim was violated.

Given the above I ask that these rebuttals are included in the assessors deliberation and respectfully request that my appeal is upheld and the charge is dismissed.

Redx

looks excellent to me, but wait for other comments before submission to popla

tyrrell5953

Thanks Redx. Its 99% BlackSpangle text so I owe all the credit to them and to all of you kind folk for pointing me in the right direction and to the best threads.

Redx

no problem

all I did was put JAS STAPLES POPLA into the search box and loads came up, try it and see

what I find funny is this rebuttal is longer and better than your original popla appeal , lol

hopefully you will now have read one that is what yours should have looked like in the very beginning ?

I have my fingers crossed for a successful outcome once your final rebuttal goes in