JASPS Appeal

tyrrell5953

Haha yes i have now seen what I should have put. Only myself to blame and me rushing something rather just to get it off my to-do list rather than taking my time. Lesson well and truly learnt!

One further quick question... Should I copy in JAS to my e-mail response?

Redx

no , popla will do that

tyrrell5953

Cheers. I will give it until midday tomorrow to see if anyone else comments and then i will push the button. I will keep people updated via thread.

ampersand

Little sortings out for clarity/grammar/spelling/punctuation op - [apart from getting rid of a lot of 1st person usage, but that's up to you:-)]

Your semi-colons are now colons.
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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 contend I am not liable for the alleged parking charge. Following receipt of JAS Parking solutions 'evidence' I submit these points in response.

JAS state[little 's'] that the driver was “seen leaving the car park”, omitting to say who saw this and when. If this refers to a parking attendant in the employ of JAS, that employee had a duty to mitigate the alleged 'loss' by approaching the driver and bringing any compliant parking conditions to his attention.

If JAS genuinely wanted to prevent the loss of custom to a store because a parking bay was unavailable, this loss should have been mitigated as described.

What did occur was entrapment: waiting for the driver to leave the site and then placing a ticket on the car.

JAS have provided no admissible evidence whatsoever in their POPLA appeal of the registered keeper of the vehicle leaving the car park.
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[down to ]

JAS submit two cod documents purporting to show their 'contract' with the Landowner's agent.

Kindly note:
J.A.S do not own this car park. In the absence of proof to the contrary, they are assumed merely to be agents for the owner or legal occupier.

In their rejection letter and POPLA appeal evidence, JAS provides no evidence that it is lawfully entitled to demand money from a driver or keeper, since they neither own, nor[always neither/nor; either/or] 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.

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”[so badly written it doesn't make sense]

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 no such contract compliant with the requirements set out in the BPA Code of Practice exists.

This means their so-called evidential paperwork does not allow them to issue proceedings and charge 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 valueless as 'evidence'.
- 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 legal standing to issue tickets at the site in question. 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 alleged '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.[can you date this ref.?]

Dealing with the submission of Pre[not 'per]-estimate of Loss, kindly note that
JAS still fail to produce a valid set of calculations of demonstrable losses.

They even attempt to claim a set of fixed business costs as losses!

Given that numerous POPLA decisions cite this same false accounting as reason enough to grant an Appeal, it seems that this Operator treats such decisions with contempt.

JAS still refuses to take any action to correctly calculate or present any true estimate of losses.

DVLA and Processing Costs:
The DVLA KADOE system charges £2.50 per query. JAS initially state their loss is £15,.
Again their record-keeping is at fault. I appealed this case without waiting for the Notice to Keeper, so there was no such cost in this instance.

Parking Attendants' Salaries:
This is a fixed business cost. Surely writing parking tickets is an expected duty of a parking attendant.

Appeals Staff Salaries:
Again, this is 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?[Nice:-)]

Office Management:
Another fixed cost of doing business.

These people would be employed anyway to perform the jobs of collation and data preparation. Moreover, since a scant 2% of cases go to POPLA, the inclusion of 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. Therefore, it is 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 only 'costs', not 'losses, of around £7.00 maximum (DVLA fees and Stationery/Postage) from 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.'

In fact, the JAS 'evidence' states and highlights that the claim in question is based on[not '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 [STRIKE]a[/STRIKE] Basildon Town Centre, a large council car park and Basildon Police Station.

No signs are visible until a driver has driven far inside the Staples/Carphone Warehouse car park. There is no room to manoeuvre to exit the car park directly, meaning that a driver has no choice but to enter it.

Due to the barely legible size of the small print, the signs and any core parking terms the operator relies upon are non-compliant, simply too small for any driver to see, read or understand.

On this visit I also noted that the signs are undated, so cannot form part of any 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.
They are certainly 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 and accepted by the driver.

No reasonable person would accept 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.'

Let me now 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 demonstrates 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 descriptors 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 does not meet any admissible 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 prove any breach of the alleged contract they claim was violated.

Given the above I ask that these rebuttals are included in the assessor's deliberation and respectfully request that my appeal is upheld and the charge is dismissed.
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Time to put kettle on now - good luck:-)
Nothing has been changed without good reason - several typo corrections.

tyrrell5953

Thank you ampersand for spending your time reviewing my notes and making amendments, its really is appreciated.

After one final detailed review I have now submitted it to POPLA.

Thank you everyone for your input and I will keep you updated.

tyrrell5953

Afternoon Everyone,

Received a response from JAS to my rebuttals...

"I would like to respond to the appellants evidence.

This parking charge notice has been issued under the terms of schedule 4 of the protection of the freedoms act 2012 so if the driver is not provided then the keeper would be legible.

I have attached a witness statement from the car park attendant who was on site at this time.

The car park attendant is there to monitor the car park and not the people that uses and decide to abuse the car park.

A full copy of our contract has been sent to POPLA.

Our charges are not only checked by the BPA they are also displayed on our sign boards.

It is the motorist responsibility to check for and read the sign boards when parking their vehicle.

Please consider all the evidence carefully as it will show there has a clear breach of the car parks terms and conditions."

Your guidance on if I should respond to this or if I now just leave it would be appreciated?

Thanks!

ManxRed

Is that all they've put? They haven't shown how their £100 is made up by listing out all their 'losses'?

Ryan_Bryan

This parking charge notice has been issued under the terms of schedule 4 of the protection of the freedoms act 2012 so if the driver is not provided then the keeper would be legible.

Oh dear oh dear.

tyrrell5953

Hi ManxRed,

They had already done that in their evidence. This is their response to my rebuttals that I responded to their evidence with.

I am unsure if there is value in going back on the points they have made in the above or just to leave it until the assessor makes their decision now?

ManxRed

Maybe a short note acknowledging that JAS admit that the charge is in relation to breach of terms and conditions, however they have failed to establish that the charge is made up of clear losses attributable specifically to the breach in question, therefore the charge must be an unenforceable penalty.