Premier Parking Solutions POPLA Appeal

c1223

Hi all,

Need some help with my POPLA appeal against Premier Parking Solutions please.

I've seen various threads including:



I've amended the letter from the first to suit me:

Dear POPLA,

verification code 686xxxxxxx

My appeal as registered keeper of the vehicle, comprises these points:

1. The intention of PPS' charge was not based on any advance regard to genuine pre-estimate of loss; rather they intended it to be a tariff. They have massaged their POPLA evidence now to manufacture a 'loss' statement, which duplicates layers of staff time, includes double counting and is not applicable to 98% of PCNs. It is at best, a crude calculation of the actual loss suffered, made afterwards.

2. The Notice to Keeper is not compliant with the POFA 2012 so there is no keeper liability established.

3. The signage terms are unclear, with small font. There are several different signs and none provide for £100 as a tariff.

These points are explained below:

1. The intention of PPS' charge was not based on any advance regard to genuine pre-estimate of loss, rather they intended it to be a tariff. They have massaged their POPLA evidence now to manufacture a 'loss' statement which duplicates layers of staff time, includes double counting and is not applicable to 98% of PCNs. It is at best, a crude calculation of the actual loss suffered, made afterwards.
To quote Assessor Chris Adamson, from a very similar POPLA decision v PPS which shows their true intentions behind their charges, earlier in 2014:
''... ‘No valid ticket or permit displayed’... The Operator submits that the charge is not a sum sought as damages, rather it is ‘an excess charge not a breach or a sum for damages’.Accordingly the Operator submits that it need not reflect the loss caused by the breach. In this case, I am not minded to accept this submission. The charge must either be one for damages as submitted by the Appellant, or consideration - the price paid for parking. The Operator has submitted in the alternative that the sum, ‘if considered genuine pre-estimation of losses’ is based on a number heading related to direct loss. I do not accept this submission.Whether or not the charge represents a genuine pre-estimate of loss is to be ascertained by an objective assessment of the intentions of the parties at the time the contract was made.Accordingly, the Operator must be able to say what its intentions actually were, and cannot rely on the charge being either a tariff, or a charge for damages, depending on which suits.

...It seems clear from the Operator evidence that, whilst its intentions were actually to charge a tariff, the signage displayed did not indicate this. It has not demonstrated that anything was being offered in return. Instead the wording of the sign indicates damages, although it does not appear that the Operator’s intentions when setting the level of the charge were to compensate for the loss estimated. Accordingly, I must allow the appeal.'' Chris Adamson, Assessor (Feb 2014).

I have found another recent POPLA case v PPS (at the same car park as my charge relates to, same contravention) which gives the game away about PPS' true intentions in advance. This was POPLA decision reference 6860024043 in February 2014, when Assessor Nozir Uddin decided to allow the appeal on the basis that the Operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss. This was because PPS' intentions prior to parking charges being issued at that site were stated to be that the charge was 'a sum in the nature of a contractual fee rather than a sum for the breach of it'. And yet the signage and rejection letter gave away the fact it was really a matter of breach of contract, which required a genuine pre-estimate of loss. In that case, PPS tried to argue both scenarios - which cannot be allowed, they cannot say it was either one or the other depending upon which suits. So in order to show what PPS' real intentions were for their charges, prior to my vehicle being parked at this site, here are some excerpts from PPS' statement regarding POPLA case 6860024043:
''The amount sought as a PCN is a term of the contract rather than a sum for the breach of it. This contractual agreement is clearly worded on our warning signage.''
''With regards to the claim that there has been no loss suffered by the company, we consider the amount on the PCN as a reasonable charge and as part of a contractual agreement. ''

So PPS' stated intentions earlier this year were that the charges making up PCNs of £100 issued at Didcot Station car park, were designed to be a contractual fee; a sum in the nature of a parking charge. The blue sign lists certain fees under the heading 'tariff' and £100 is not one of them. However, I have no idea from the Notice to Keeper how much of the tariff remained unpaid (if at all). This small sum, or a percentage of it, would be the only 'contractual sum' in the alleged contract which can represent consideration. A PCN for £100 is not recoverable in this instance, however PPS try to slant the calculations.

The point I am making is that the suggestion that their charges are based on any loss is untrue because this was not their stated intention in advance. But recently PPS have decided to try their luck by pretending that their intention all along was to charge for loss. Even worse, this approach fooled POPLA on at least two occasions until robust appeals exposing the truth achieved a more measured view, as in POPLA code 6861754004 (PPS again) where Assessor Ricky Powell noticed the heavily duplicated and frankly ridiculous staffing costs:

''I am not satisfied that the pre-estimate of loss supplied by the Operator reflects the charge issued. I find that the ‘appeal writing’ loss asserted is duplicated in two heads of loss. The ‘Appeals staff’ appeals writing costs are included in the sum for £9.51. However, there are further appeal writing costs included in the ‘Management’ costs, which total £71.65. It has not been explained how the individual heads of loss included under the heading ‘Management’ are calculated. It is also impossible to determine what contribution the appeal writing costs contribute to the total of £71.65. Therefore, I cannot find that the total costs for ‘Management’ are substantiated and so must disregard them from the total genuine pre-estimate of loss. The total pre-estimate after subtracting the above £71.65 is £31.18. I find that this does not substantially amount to the issued £100 charge and that it does not constitute a genuine pre-estimate of the Operator’s loss caused by the Appellant’s breach. Therefore, I find that the parking charge is not enforceable in this case. '' (Ricky Powell, Assessor, August 2014).

It seems to me that PPS have tried to mislead POPLA to gain pecuniary advantage against motorists who have all paid the tariff and can prove it. This is unsupportable and unprofessional, as is the massaged 'loss statement' that they now suddenly use to try to magically meet the sum of the PCN. In simple terms:

- PPS must think I was born yesterday if they think I believe that they 'thought there was an initial loss' when yet another of PPS' extra-flimsy tickets slipped.
- It beggars belief that managers and directors would spend hours on each POPLA case. There are too many layers of repeated checks by highly paid staff to be credible.
- PPS use a template POPLA 'genuine pre-estimate of loss' summary & response so it is not individually written nor even applicable to my own case at all.
- staff/NI are all tax-deductible costs of running a business and do not directly flow from one alleged breach in a car park where there was no initial loss.
- PPS staff do not just handle appeals, their work includes dealing with clients/permits, and Directors have supervisory/staffing/new business and Management duties so I am not liable to pay their wages nor to line the pockets of PPS owner with yet more profits.
- POPLA related 'work' cannot apply to each PCN as a 'genuine pre-estimate', because only 1% or 2% of cases ever get to POPLA stage.
- Since the vast majority will never to go to appeal, let alone as far as POPLA, this is comparable to cases where Operators add 'debt collection' costs. In those cases, POPLA routinely dismiss those heads on the basis that 'cases may never get to debt collection stage so this is not applicable'. The same applies to 'POPLA costs'.
- If I had not appealed at all, instead paying between day 14 and day 28 then the full cost of the PCN would have applied. Why? How does PPS' genuine pre-estimate of loss explain that?
- The other 'business costs' (including a DVLA fee that in fact costs £2.50 and stationery/postage) cannot be added since this does not flow from all PCNs.

Where an Operator has submitted a breakdown of the losses incurred as a result of the breach and a large percentage of the amount comes from staff costs, they must be able to justify those heads as relating to every typical PCN (whether appealed or not). In the case of PPS they include several layers of checks on the work of other staff members - I would contend this is an unnecessary amount of checks and that the Operator has not shown that the items referred to are substantially linked to the loss incurred by every breach.

Indeed, in the 2014 Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, 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."

As PPS have since changed their GPEOL calculations from the version presented to POPLA Assessors just a few months ago, then I contend that the calculation (even if it were a more credible effort than this one) must fail as it is not a genuine PRE-estimate. In fact is a 'post-estimate' after the event, of figures designed to match the charge. As such, the latest effort by PPS is disingenuous and is merely an over-inflated and duplicated new 'calculation of alleged actual loss, made afterwards'. It is not enforceable according to the words of Mr Greenslade.

2. The Notice to Keeper is not compliant with the POFA 2012 so there is no keeper liability established.
The document which purports to be a Notice to Keeper is not properly given under the POFA 2012. The NTK does not tell me as keeper what the contravention was and how much of the tariff allegedly remains unpaid for what length of parking period. In this car park there are multiple possibilities and the NTK fails to confirm me of the position (which cannot be 'either/or').

Further non-compliance with the POFA is the omission of the following wording as found in paragraph 8 of schedule 4:

'‘(f) warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver...the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;’
(g) inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available''

In addition, the Notice contains misleading wording which not only states a level of authority and deadlines that do not exist but also breaches the BPA Code of Practice paragraph 14:'Misrepresentation of authority':

14.1 You must give clear information to the public about what parking activities are allowed and what is unauthorised. You must not misrepresent to the public that your parking control and enforcement work is carried out under the statutory powers of the police or any other public authority.'

In bold at the top of the Notice is the underlined word 'Important' and therein follows this misleading imaginary deadline and threat:

'Failure to pay the parking charge within 28 days of receiving it could lead to legal proceedings being issued.'

This impersonates Police wording and is patently not true. There is no 28 day deadline at all.

This is compounded by another large font paragraph: 'Only payment in full will prevent us from taking further action'. It is utterly misleading and untrue that the keeper's ONLY option is to pay in full because of course there is the option to appeal. POPLA will notice that the NTK completely omits any details (even on the back) about the keeper's right to POPLA. There is nothing about it at all, so I hope that POPLA may be minded to report this serious omission to the BPA Ltd.

POPLA Assessor Matthew Shaw has previously confirmed that a NTK is 'fundamental to establishing keeper liability' and if the Notice is not properly given it is therefore a nullity. It is a strict requirement of POFA that all statutory conditions must be met and stated wording included, in order for keeper liability to be established. This Notice to Keeper was not properly 'given'.

3. The signage terms are unclear, with small font. There are several different signs and none provide for £100 as a tariff.
This car park has various signage designs, which are difficult to read at all when driving, and a black and white one, which would only be readable if the font size was larger. The only tariff mentioned is small sum between £1 and £6 as far as I can see - there is no £100 tariff. The driver cannot have entered into any contract to pay the amount of the PCN as a tariff. Where it is mentioned, the £100 is in such small font that the onerous term of the £100 PCN is not sufficiently explicit to form a contract that a driver must have seen when paying. Furthermore, as per appendix I of the BPA Approved Operator Scheme Code of Practice “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual” however the various signs presented followed none of these recommendations. At the time of parking, given the time of day, the signs would have been unreadable due to lack of light.

This concludes my appeal.

I added

Furthermore, as per appendix I of the BPA Approved Operator Scheme Code of Practice “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual” however the various signs presented followed none of these recommendations. At the time of parking, given the time of day, the signs would have been unreadable due to lack of light.

Plenty of pictures of signs are available here:

hxxp://imgur.com/a/SHVaf

One question I do have:

I'm unsure about the sign wording and whether the charge is punitive or not. As per:

If it is issued as a contractual charge, then the parking company must be able to demonstrate it is not punitive or unreasonable. One tactic parking companies use in their POPLA evidence is to make it ambiguous which it is; in this case you should try to cover both angles of attack in your appeal.

How would I cover that?

Have I missed anything?

Thanks

Fruitcake

http://imgur.com/a/SHVaf

c1223

Anyone have any advice?

Umkomaas

Without any real background/context to your parking event, it's very difficult to comment in somewhat of a vacuum against a bare POPLA draft appeal.

Sorry, but I don't go through these word by word. But - it looks at face value to be more rant-based than a clinical demolition of the. PPC's case.

Have they provided you with their GPEOL breakdown, which you are using here, or has this come from a previous case you've copied and pasted from?

In terms of unlit signage - was the car parked during the hours of darkness? If not, then the appeal point is irrelevant.

The sign makes it clear that motorists must 'comply' and warns of 'contravention'. Neither of these can be construed to be in the context of a 'contractual charge', therefore unless they can come up with a real GPEOL amounting to £100, then it's but an unenforceable penalty.

As an aside - what a sh1thole of a car park. They'd have to pay me to park my car there!

c1223

Parked in the car park on a dark night. Completely misread the sign and as such only paid for parking 8pm. Received a ticket shortly after that. I left the car park by about 8:30pm. In my honest opinion, the car park was dark therefore making the signage unreadable. The signage was also unclear and trying to catch you out, and for 30mins of parking, £100 cannot be a real estimate of loss.

There is no GPEOL included with my appeal rejection from them. They do say:

The genuine pre-estimation of loss refers to costs that we estimated, at the time of issuing the PCN that may follow from the initial loss for this individual charge only. For further information, regarding genuine pre-estimation of loss, please visit our website pps.uk.com on Home Page, Newsfeed, for recent adjudications by POPLA in our favour on this point.

Where might I find the basis for a better draft?

Redx

c1223 wrote: »

There is no GPEOL included with my appeal rejection from them. They do say:

Where might I find the basis for a better draft?

the newbies sticky thread , post #3

also , try the forum search box and suitable search words to find similar appeals

and the POPLA DECISIONS thread must have something useful too

ampersand

'genuine:rotfl: pre-estimation of loss.....that may follow' -

I'd call that a clue:-)
#
Not chuckling at your expense op, just at the tiresome effrontery of these scumpanies.

Not sure why you use the word 'tariff', rather than 'penalty' at first. Your use of it in that first long para. is incorrect[misunderstood?]and counters its later verbatim application, [quoted by you]used by Chris Adamson.

Strongly suggest you lose all 1st person, all 'M'Lud'-ery and emotive, accusatory excess.

Stick to the tried and tested bullet-point headings, expand each, ensuring each is relevant to your parking event.

Use pics to show [night/sight-lines/ print-size/height/location]non-compliance.

e.g. para.3 starts on signage, quickly disintegrates>veers to contract/'tariff' Prove each rebuttal point singly, succinctly.
Edit, edit, edit e.g.
', given the time of day,[but it was at night!] the signs would have been unreadable due to lack of light.'
Didcot Station ref.s - careful, bye-laws often apply. Don't shoot yourself in the foot.
#
Less is more. Don't be disheartened by criticism. We all began this way.
Come back with a draft closer in tone and brevity to your first 4.25{:-)]lines in #5.

c1223

Take two:

My only question being:

"as payment was made and there was no loss of potential income"

I paid up until 8pm. As you can see from the pictures of the tariff board (hxxp://i.imgur.com/9xM1V8z.jpg) it is easy to assume that payment need only be made between 8am and 8pm. Given it was the hours of darkness it was damn near impossible to see the sign (against the BPA's code of practice). Not entirely sure how to word that in my letter?

Thanks

Dear POPLA,

I am the registered keeper & this is my appeal:

1) The Charge is not a genuine pre-estimate of loss
Their sign states the charge is for 'contravening the terms and 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 as payment was made and there was no loss of potential income as the occupants of the car recall that the car park was not full on both arrival and departure.

This Operator 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.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breachmust be an estimate of losses flowing from the incident. Premier Parking Solutions cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':

"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''


2) No contract with driver
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. There was no consideration/acceptance and no contract agreed between the parties.

3) Unreasonable/Unfair Terms
The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. 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 that was 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 profit by charging a disproportionate sum where no loss has been caused. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not breach the UTCCRs and UCT Act.

4) Unclear signage

The signage terms are unclear, with small font. This car park has various signage designs, which are difficult to read at all when driving, and a black and white one, which would only be readable if the font size was larger. The only tariff mentioned is small sum between £1 and £6 as far as I can see - there is no £100 tariff. The driver cannot have entered into any contract to pay the amount of the PCN as a tariff. Where it is mentioned, the £100 is in such small font that the onerous term of the £100 PCN is not sufficiently explicit to form a contract that a driver must have seen when paying.

Furthermore, as per appendix I of the BPA Approved Operator Scheme Code of Practice “Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material similar to that used on public roads and described in the Traffic Signs Manual” however the various signs presented followed none of these recommendations. Given the time of the parking event, which was during the hours of darkness, the signs would have been unreadable due to lack of light.


I therefore respectfully request that my appeal is upheld and the charge is dismissed

c1223

Any help please? The deadline is fast approaching!

Cygnus_Alpha

c1223 wrote: »

Any help please? The deadline is fast approaching!

Looks good to me. PPS usually defend GPEOL by producing figures which assume 100% of cases go to POPLA. If it's not too late, you can counter this by pointing it out in your appeal.

c1223

This has come in from PPS. Is there anything I need to do? Is it possible to dispute their evidence at this stage?

This is their letter: https:// dropbox.com/s/1kdbb00ljzvxpuf/parkingappeal.pdf?dl=0

I don't know how they can claim this is enough light to read the sign:

http:// i.imgur.com/mESYZsK.jpg

Is there a standard rebuttal template?

Edit 1: I also just noticed that the ticket has "N/A" under the field "TIME VEHICLE WAS FIRST SEEN IN CONTRAVENTION". The only field filled in with a time is "TIME PARKING CHARGE ISSUED" which is 30 minutes after my ticket expired. Should I argue on that point as well.

Edit 2: In their GPEOL they state:

Loss of P&D Revenue for this appeal (please note at the time of issuing
the PCN parking had not been paid for as there was no valid pay and
display ticket displayed).

They claim that this is worth £4. However the time that was paid for is only about 45 minutes as I left within minutes of the ticket being issued (I saw the guy doing it). Therefore only a maximum of £1 is lost through that.

Edit 3:. At the bottom they state:

With regards to registered keeper details this has not yet been applied for as the complainant has always indicated they were driving at the time.

Can someone explain that? I don't think I did indicate this at any time.