Elite Management & ZZPS - 2nd stage appeal to POPLA

Bad_Karma

Good evening,

I have had the pleasure of receiving my first PCN at the end of last year, I came on here and read all the information and followed the very helpful steps laid out in the stickies.

To give a brief history about what has happened and what stage I am at now I will give a summary below:

*NTK received on 12/12/14 (outside of the 56 day time limit for keeper liability)
*Appeal sent to PCN Admin Centre (also known as ZZPS Ltd.) and Elite Management (the Creditor).
*What followed was a series of emails back and forth of them demanding that I supply the driver details and me refusing and redirecting them to my appeal.
*Within the 28 day time frame and without rejecting my appeal they progress my notice to debt collector stage and increase the balance to £172.
*I complain to BPA and get a response back saying that they have 'corrected' the company on the procedures they must follow.
*ZZPS send a new letter explaining that they ignored my appeal as it closely resembled internet templates and asked me to pay within 14 days.
*I told them to shove their 14 days where the sun don't shine and either accept or reject my valid appeal within 1 working day or face court action for harassment.
*ZZPS provide POPLA number within 1 hour and reject my appeal.

So this is where I am at now and I have drafted the following POPLA appeal. I would really appreciate if someone could have a quick skim through it and see if I have made any obvious mistakes or have any suggestions to make it even more bullet tight.

If all goes well I am more than happy to post up the full transcript between myself and ZZPS for anyone who has to deal with them in the future - I believe it is the new 'phoenix' company of Mr Gary Osner (head of the dearly departed Roxburghe PCN company...)

The following is my proposed appeal:
My Details:
PCN No.
Issued.
Reg.
POPLA No.

Dear POPLA Assessor,

I am the registered keeper of ****-*** and I wish to appeal the Elite Management (Midlands) Ltd. / ZZPS Ltd. PCN ***** on the following basis:
1. The validity of the Notice to Keeper NTK (Non-compliance with BPA code of conduct or 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. Lack of clear, readable signage - no contract with driver
5. Unreasonable/Unfair Contract Terms.

Explained below:

1. The validity of the Notice to Keeper NTK (Non-compliance with BPA code of conduct or the Protection of Freedoms Act PoFA 2012)
The first point that I wish my appeal to be considered upon is the validity of the NTK. According to the information within the NTK the alleged offence took place on 13/10/14, the NTK was dated 12/12/14 – this means that the notice was not served between day 29 and day 56 and therefore does not comply with ‘Schedule 4 paragraphs 8(5) PoFA [2012]’ – therefore keeper liability cannot be invoked.

The parking company can 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 the parking company 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.

In addition, ‘Schedule 4 paragraphs 8 and 9 PoFA [2012’] stipulates the mandatory information that must be included in the NTK. If all of this information is not present then the NTK is invalid and the condition set out in ‘Schedule 4 paragraph 6 PoFA [2012’] has not been complied with. Failure to comply with this means that the registered keeper cannot be held to account for the alleged debt of the driver. This breach was achieved by ZZPS Ltd. by failing to:

· State whether a notice to the driver was given either to the driver or placed on the vehicle.

· Details of the discount for payment within 14 days, the discount should be at least 40% of the full charge under the BPA Code of Practice.

Furthermore, on 8/1/15, despite providing ZZPS Ltd. with my appeal as the keeper of the vehicle and despite this notice still being within the 28 day window for appeal, ZZPS Ltd. escalated the case further by increasing the balance owed to £172 without formally accepting or rejecting my appeal – a direct breach of their own appeals procedure stated on the NTK and the ‘sections 22.4, 22.6 and 22.7 BPA Code of Practice [February 2014]’

I would like to point out that POPLA Assessor Matthew Shaw has stated that the validity of a NTK is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.

As the parking charge notice PCN was not compliant with the act, it was not properly issued and as the registered keeper I cannot be held liable.

2. The charge is not a genuine pre-estimate of loss
The £100 balance stated on the NTK is disproportionate to the loss incurred by Elite Management (Midlands) Ltd and is punitive, contravening the ‘Unfair Contract Terms Act [1997]’. I also consider the issued PCN to be a penalty. Elite Management have alleged a breach of terms and conditions and yet have not quantified their alleged losses (which cannot include business running costs nor the POPLA fee).
Elite Management must demonstrate the charge to be a genuine pre-estimate of loss. The timing of the alleged contravention suggests that the vehicle was allegedly parked with no ticket for a period of less than 1 hour at the time of issue. Therefore, ignoring the possibility that the parking area was probably not full, the maximum proven loss flowing from this alleged contravention is at most 1 hours parking.

Neither Elite Management nor their claim handling company ZZPS have demonstrated 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. Elite Management would have been in the same position had the PCN not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all. I submit that there is no genuine loss being pursued and that the charge is therefore not legal.

3. Lack of standing/authority from landowner
As the keeper of the vehicle I do not believe that Elite Management nor their claim handling company ZZPS have demonstrated a proprietary interest in the land, because they have no legal possession which would give any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. In addition, Elite Managements 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 there is no contract with the landowner/occupier that entitles them to levy these charges and therefore has no authority to issue PCNs. This being the case, the burden of proof shifts to Elite Management.

I require that Elite Management produce a copy of their contract with the owner/occupier so that the POPLA assessor may review it in relation to any possible breach of ‘section 7.1 BPA Code of Practice [February 2014]’.

I would also like to point out that even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Elite Management and the owner/occupier, containing nothing that Elite Management can lawfully use in their own name as an ‘agent’, that could impact on a third party customer.

4. Lack of clear, readable signage - no contract with driver
As the keeper of the vehicle, having visited the site of the alleged offence it is my firm belief that the entrances to the car parking area provide an inappropriate level of signage and inadequate lighting to support ease of viewing the restrictions applied, as required by the ‘paragraph 18.2 BPA Code of Practice [February 2014]. Such as they are, the signs are placed high up and are unlit, so that in darkness no signs are visible and the words (on an unreflective board) are certainly unreadable. The fact is that if the words are not readable at dusk or in the hours of darkness then no contract was capable of being formed between with the driver. The signs breach the BPA Code of Practice Appendix B which effectively renders signs unable to form a contract with a driver in the hours of darkness:
''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.

There was no agreement to pay. 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 Elite management. 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.'

The signs are certainly not 'startling'. Nor was there any lighting to illuminate the terms, which were in a very small font. The restrictions were not obvious and nor were the terms drawn to the driver's attention in any explicit way - certainly not the risk of any hefty 'charge'. Terms on a notice are not imported into the contract unless brought home so prominently that the party 'must' have known of the terms and agreed to them in their entirety.

5. Unreasonable/Unfair Contract Terms
The charge is not a 'core price term' and is not exempt from the test of fairness nor the test of transparency of terms. This is confirmed in the OFT's extensive guidance on the Unfair Terms in Consumer Contracts Regulations (UTCCRs) 1999.

The guidance includes the following advice:
“The Regulations apply a test of fairness to all standard terms (terms that have not been individually negotiated) in contracts used by businesses with consumers, subject to certain exceptions. The main exemption is for terms that set the price or describe the main subject matter of the contract (usually known as 'core terms') provided they are in plain and intelligible language. The Regulations thus apply to what is commonly called 'the small print' of standard form consumer contracts”.

“The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a 'core term'. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option”.

“The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term”.
This charge is not exempt from the test of fairness then. It represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says:
“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 also draw the Assessor’s attention to The OFT ‘Unfair Contract Terms Guidance’:
Group 18(a): Allowing the supplier to impose unfair financial burdens
‘'18.1.3 ...transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.’’
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".
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 car park where the bays were unlikely full. Contrary to the requirement of good faith, this charge caused a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and UCT Act evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation:
“… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.
Further in support of my contention that this charge is a penalty, is the finding of Colman J in Lordsvale Finance Plc -v- Bank of Zambia [1996] QB 752 which was that
“whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provisions was to deter a party from breaking the contract or to compensate the innocent party for the breach [...] deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred”.
In summary, Elite Management and in turn their chosen PCN enforcement company ZZPS Ltd. are attempting to enforce a punitive charge for an alleged infringement which they have no reliable means of proving ever took place at all at the times stated. They have shown repeated breaches of both, their association’s (BPA) code of conduct as well as a number of violations of the PoFA. I respectfully request therefore, that my appeal is upheld and the charge is dismissed.

As part of this appeal I shall be submitting a full transcript of all communications between myself and ZZPS Ltd. in dealing with this matter. Due to the way in which this case has been dealt with this information has also been passed on to the BPA to be dealt with as a complaint.


Yours Faithfully

Fruitcake

I'm not an expert but after a skim read I would say it is a winner.


Well done for doing all of this without having to ask for help first. :T

Bad_Karma

Just goes to show what limited knowledge, a bit of hard work and the excellent 'How To/Idiot Guides' can do. It's annoying that it takes this much effort to get anywhere with them but the more they replied with idiotic responses the more it motivated me to research and squash their pathetic notice and in turn file a complaint against them.

I know the BPA and the various PCN companies are a bit too friendly with each other for it to have a deep impact but the way I see it the more people who complain the better.

Fruitcake

It does show it can be done by the average person in the street. The advice here is most excellent. I take it you will tell friends and family about how to beat these fake scam invoices.


Just one question, where was this as complaints to the landowner/shops/retail park are always in order to give a wakeup call to those stupid enough to employ a parking company?

Bad_Karma

This was on Kingsland Bridge in Shrewsbury.

bluetoffee1878

You have done your homework, looks pretty good.

Might be worth mentioning your complaint to BPA and their reply

Bad_Karma

Charge dropped:

Dear Sir or Madam

Mr Jonathan Cole(Appellant)
-v-
Elite Management (Midlands) Limited (Operator)

The Operator has informed us that they have cancelled parking charge notice number 41798, issued in respect of a vehicle with the registration mark VN12GME .

Your appeal has therefore been allowed by order of the Lead Adjudicator.

You are not liable for the parking charge and, where appropriate, any amounts already paid in respect of this parking charge notice will be refunded by the Operator.

Yours sincerely,

Richard Reeve

Service Manager

---

ZZPS.Ltd have not updated their website so I sent them the following polite reminder:

Dear Mr Miners,


Please kindly update your website to reflect the decision that has been made by POPLA and remove my information from your system. Please also refrain from contacting me or wasting my time in the future. Any further communications from your company will be treated as harassment and I will seek to claim compensation from you.


Kind regards


Jonathan

Bad_Karma

Also in the meantime the BPA replied with a rather poor response, I have replied to them but have heard nothing more back:



Dear Mr Cole

I have been asked to review this case.

Your original appeal as the registered keeper was based on the issue of the Notice to Keeper (NTK) being received by yourself outside the Protection of Freedom Act 2012 (POFA) criteria (56 days in this case).

There is no mention of POFA, on the NTK, therefore this criteria does not apply.

It is possible that you had this view having researched private parking on the internet. That is understandable, however not all information on the net is 100% accurate.

This POFA legislation is available to private parking operators should they wish to utilise it. It is not compulsory to use it.

Where the parking operator, Elite Management (Midlands) Ltd, was in error, through PCN Amin Centre, was to state that the appeal could only be looked at providing the drivers details were supplied. As you are aware, this is not the case under our Code of Practice, and the operator has been instructed to amend their procedures and accept appeals from either the driver or keeper of the vehicle. This includes accepting ‘Internet Template Appeals’ .
This has done, and we are content that immediate rectification has been made.

My understanding is that they have looked at your appeal, but rejected it, and supplied you with a POPLA code on 29 January 2015, should you wish to make use of this Independent Appeals Service. You will be aware that you have for 28 days to make a POPLA appeal.

As the complaint issues have been addressed by the BPA, and you have received your POLA code, this is the route for your appeal.

I am therefore closing off this case.

Regards

Peter


Peter Beasley
Compliance Manager
British Parking Association

---

Dear Peter,


I notice a few mistakes in your response to me. Firstly my original appeal was not solely based on the NTK being issued outside of the timescale to invoke keeper liability. This point was simply highlighted in my original appeal to avoid ZZPS.ltd attempting to use this at a later date and wasting my time further. The basics of the situation is that I have no legal obligation to name the driver of the vehicle and as they are outside of the timescale to invoke keeper liability this whole case is simply a waste of my time. I made contact with them to avoid a pointless waste of paper and mock threatening letters which unfortunately have continued regardless.


Therefore this would explain why you appear not to have understood my initial appeal. My communications with ZZPS Ltd. are not based upon ‘researching private parking on the internet’ but rather a legal background and meetings with a few legal professional – as such I would appreciate it if this case is not dismissed as ignorantly as it appears to be.


I understand that ZZPS.Ltd have now been informed to accept appeals from keepers and appeals that they regard to be templates in this case however are you able to reassure me of any disciplinary action they may receive should this ‘corrective action’ only turn out to be a temporary measure?
You are correct that they have finally (and reluctantly) issued me with a POPLA number for which I have now placed my second stage appeal.


I notice your response makes no mention about ZZPS.Ltd increasing the fine within the 28 day period – another breach of your own code of conduct? Having thoroughly researched the various points of my complaint it is understandable that you may have missed this point.


I am not going to lie; I am hardly surprised by the dismissive undertones and support shown towards ZZPS that this response has presented. I suppose the number of complaints you must receive regarding your members can have this affect.


Kind regards


Jonathan