POPLA loss - what now?

darkbarly

Stickies read.

Parked in allocated bay, permit displayed but wrong way up. Appealed to operator then to POPLA But rejected having twice submitted my defence before the appeal date, albeit the first was emotional and weak but the second in line with MSE forum template of the facts. I have 14 days, help please?

POPLA response and submission reproduced here, I have emailed POPLA for justification of rejection without consideration of all the points raised...

Reasons for the Assessor’s Determination
It is the operator’s case that a parking charge notice was correctly issued, giving the reason as: ‘not displaying a valid permit’. The operator submits that a parking charge is now due in accordance with the clearly displayed terms of parking.

The appellant does not dispute that the terms of parking were clearly displayed or that he failed to clearly display a valid permit.

It is the appellant’s case that he does own a valid permit but that on the day of the incident his permit was displayed face-down on his vehicle dashboard. The appellant submits that he parked in his designated bay and he owns a valid permit for that bay and so he should not be liable for a parking charge.

The operator does not dispute that the appellant owns a valid permit; however, the terms of parking are clear that any permit must also be displayed. A requirement that a valid permit be displayed includes a requirement that any information confirming its validity be made visible. This includes any dates, location or expiry time, and also any marks which show the permit is an original.

The operator has provided photographic evidence showing the whole windscreen and dashboard of the appellant’s vehicle. The photographs appear to show that there is a permit face-down on the dashboard and so the necessary information to confirm its validity is not visible.
Although I note that the appellant owns a valid permit, it is also a condition of parking that the permit is displayed at all times. When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorist’s responsibility to ensure that he or she abides by any clearly displayed conditions of parking. In this instance, it was a condition of parking at the site that permits must be clearly displayed.

Having carefully considered all of the evidence before me, I find that, by failing to display a valid permit, the appellant became liable for a parking charge notice, in accordance with the terms and conditions of parking displayed.

***
POPLA appeal number xxx: 26 january 2015 Dear POPLA, I am the registered keeper of this vehicle & this is submitted to substantiate my appeal:

1) The Charge is not a genuine pre-estimate of loss Armtrac security services states the charge is for 'not fully complying with the conditions' so this Operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park was quite empty, so if by parking in the space allocated to the apartment for which I had exclusive use there was no loss of potential income as the apartment vendor already had a client and none of the other allocated spaces were infringed or impeded. Armtrac security services cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

2) Poor signage - no contract with driver I see that the signs are placed unlit and placed away from diffuse lighting. I put Armtrac security services to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. The sign is not not reflective & placed too high to be lit by headlights. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign; there was no consideration/acceptance and no contract agreed between the parties. The only clear requirement for parking to the apartment client was a check in note from the vendor indicating that the apartment parking permit must be placed in the vehicle. Furthermore, Armtrac security services allege they are under strictinstructions to ensure that any authorised vehicle will have a permit displayed clearly. I can confirm that none of the signs at the site, nor the vendor, nor the landowner or Armtrac security services have provided any guidance, signage or otherwise on what constitutes a valid permit. Armtrac security services have not, to date, informed Popla or the vehicle owner what a 'valid' permit actually looks like as the term 'valid' has been offered only by Armtrac security services and is beyond and above the landowners alleged stated instructions. The evidence submitted substantiates the case for a permit being clearly displayed and has been noted by the patrol officer. I would challenge POPLA to prove what a 'valid' permit looks like, right way in, out, down or up.

3) Lack of standing/authority from landowner Armtrac Security services has no title in this land and 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 Armtrac security services to strict proof of the contract terms with the actual landowner (not a lessee or agent). Armtrac security services have not indicated to me clear 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 have referred only to 'instructions' from the landowner to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Armtrac security services are entitled to pursue these charges in their own right. I require Armtrac security services 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 anagreement' with a non-landholder managing agent - otherwise there is no authority.

4) Unreasonable/Unfair Terms The charge levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states: '18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances. An unlit sign of terms placed to high to read, is far from 'transparent'. Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in
compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer". The charge levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.” I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a residents car park where the bays are allocated nor where the physical characteristics of the permit are clearly set out. I put this operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act. I therefore respectfully request that my appeal is upheld and the charge is dismissed.

Jim_AFCB

Wss it separated/formatted in proper paragraphs when you submitted it, rather than as it looks in your post above??

It looks like they have completely ignored the GPEOL argument... if they got the appeal formatted as above then I could understand it as it is difficult to read formatted like that.

If it was properly formatted, then a complaint re: the non-addressing of the points above which have won previous appeals might be in order - one of the more expert posters will b able to advise better than I can.

trubster

They seemed to skip point 1 in your appeal, what was the assessor's name?

ampersand

darkbarly - please space that block of text.
Life is too short to undo it as is.

1st point - 'I have 14 days, help please?' - why is this a question?

What 14 days are you referring to?

Did your permit somehow flip over in your absence?
' permit displayed but wrong way up' - 'upside down' is not the same as 'face side down'.

That's as much as I can make of this atm.

Coupon-mad

They didn't see your recent submission did they? Complain about your evidence not being all considered.

ampersand

'the second in line with MSE forum template of the facts.' - and was this 2nd submission still within POPLA appeal time?

Was it properly acknowledged as received?

darkbarly

Reformatted, sorry! As per the submission.

Amy Riley.

14 days to pay £100, originally £60.

ampersand

#6 answer needed too, please - and 'Did your permit somehow flip over in your absence?
' permit displayed but wrong way up' - 'upside down' is not the same as 'face side down'.'
#
Amy's needed classroom assistance since she started.
Play semantics - Amy says 'The operator has provided photographic evidence showing the whole windscreen and dashboard of the appellant’s vehicle. The photographs appear to show that there is a permit face-down on the dashboard and so the necessary information to confirm its validity is not visible.'

-if this can be determined,[by whom? Amy? or is there something agreeing this in Armtrac's POPLA bumf? Does the reverse of said Armtrac permit make clear that this is precisely what it is?]

I recall this same Amy failing on this form of wording when she had not long begun. Decision later reversed. c-m probably recalls who it was.

Either she accepts/decides on strength of pics that permit is present, or armtrac have conceded this in their own POPLA wording.

darkbarly

Submission acknowledged 26th Jan, appeal date 28th Jan, Refusal dated 29th Jan. I have emailed POPLA for explanation of omissions.

Yes, the permit was upside down. I say permit, it was a handmade blue piece of card with a number on one side, not serialised, which flipped over. Post PCN issue I noted the signs, all unlit, did not state "valid" permit, only 'permit must be displayed'. Armtracs operator noted there was a permit displayed but could not make out the apartment number.

Coupon-mad

You will be fobbed off then you will need to escalate the complaint and point out that your added evidence was acknowledged but Amy Riley can't have seen it as she hasn't covered important issues such as the fact that a lack of permit cannot create any 'initial loss' and there was no GPEOL. Seeing as the Senior Assessor Chris Adamson has previously set out clearly that 'permits are not analogous with pay and display and cause no initial loss' you feel that Ms Riley cannot have seen the 26th January submission which had clear points like ' Armtrac security services cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable.'

Amy has summarised your case thus:

'It is the appellant’s case that he does own a valid permit but that on the day of the incident his permit was displayed face-down on his vehicle dashboard. The appellant submits that he parked in his designated bay and he owns a valid permit for that bay and so he should not be liable for a parking charge.'

So she cannot have seen the 26th January version you submitted in time before the decision and which was acknowledged, because it simply is not true that the above was the sum total of your 'case'.

Ask that the decision is referred to the lead Adjudicator and DON'T give up when you get the standard POPLA fob off - reply and push POPLA to escalate it as an error.

(no-one loses against Armtrac!!).

ampersand

c-m[with apologies for single post hi-jack to darkbarly], asked on another thread if you had a charlie hebdo copy. I bought extras deliberately if you need one.