Help!! Letter from Debt Recovery Plus

QuestionsQuestions13

Thanks Redx,
All very helpful and interesting. I've revisited the car park today to look at signage and compared it against the BPA Code of Practice. I definitely think it contravenes the points made (despite APCOA's assertion in their appeal rejection letter that it it was clear etc.). I hope that's enough! Anyway, here's attempt number two. I'd be really grateful of your (and anyone else's!) thoughts.

I am the registered keeper of the above car and hold a valid driving licence, I am not liable for this Parking Charge Notice for the reasons detailed below. I acknowledge that the 28 day deadline for submitting this appeal to you has expired but note that the Lead Adjudicator can allow late appeals in unusual circumstances. I claim such extenuating circumstances and would ask that my appeal be considered notwithstanding. I would ask that this be clarified with the Lead Adjudicator.

I received a windscreen ticket at the Ealing Hospital car park on 18.11.14 and immediately wrote to APCOA explaining the circumstances detailed below. On 4.12.14 I received a letter from them stating that they did not uphold my appeal. I determined to appeal the Parking Charge Notice but did not feel confident in doing so myself. As such, I paid a company called parkingticketappeals.org.uk to take on the case. I can provide evidence (emails and proof of purchase) to this effect. Parkingticketappeals.org.uk assured me they would put in an appeal to you and that I did not need to do anything unless I received further correspondence from APCOA.

I had researched the company and found they had been operating legitimately and in a timely manner so, reasonably I believe, assumed the appeal to you had been lodged.

On 31.1.15 I received a letter from Debt Recovery Plus Ltd demanding payment of an unpaid parking charge £110. I presumed an error had occurred and attempted to contact parkingticketappeals.org.uk for reassurance. Their phone line was dead. Their website simply advised that they had ceased trading. At no point had I been contacted and informed that they were not dealing with my appeal. I have researched the appeals process as quickly as possible and hope that the Lead Adjudicator will be understanding of the circumstances stated and consider my appeal despite it being out of the 28 day application period.

I am not liable for this Parking Charge Notice for the reasons set out below.

1. Non Compliant Signage
2. No Contract
3. Punitive Sum / Not A Genuine Pre-Estimate Of Loss
4. Lack of Standing / Authority From Landowner


1. The Signage Was Not Compliant with the BPA Code of Practice or readable before parking - so there was no valid contract formed between APCOA and the driver.

The sign at the main entrance to the car park is situated on the right hand side of the road, across a lane of traffic, at an angle and approximately a metre away from the kerbside. Therefore, when turning into the car park it is obscured by traffic exitting the car park and cannot be read. Notwithstanding, the text on the sign is not sufficiently large enough to be read when turning into the car park. It clearly does not comply with Appendix B of the BPA Code of Practice which states that 'The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. '.

Furthermore, there is access to the car park via a side road before the main entrance which has no signage on it at all, readable, compliant or otherwise.

Appendix B of the BPA CoP (Entrance Signs) states the the 'AOS roundel must always be shown on the sign.' The signs at Ealing Hospital do not comply with this.

Clause 19.9 of the BPA CoP states that 'You should warn drivers that if they delay payment beyond a payment period of 28 days, and you need to take court action or use debt-recover methods to recover a debt, there may be and extra 'recovery charges for debt-recovery action.' There is no such warning on any of the signs in Ealing Hospital.

The entrance sign does not clearly state that the site is managed (BPA CoP clause 28.2).

I put APCOA to strict proof of clear, readable, compliant, properly located signage being available at the entrances and indeed around this car park which complies with the BPA CoP. As a POPLA assessor has said previously in an adjudication “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

A lack of signs at the entrance to the car park and unclear wording creates no contract.

2. No Contract
I parked the car in the car park of Ealing Hospital having taken my eight year old son, who has Additional Needs, for an outpatients appointment. On arrival at the ticket machine I was surprised to find that it did not take bank notes. I did not have enough change to pay the parking charge so I telephoned the number given on signage next to the ticketing machine and spoke to a representative of APCOA (call ref: 17112014192). I asked to pay the parking charge over the phone but was told this was not a facility that was provided. The APCOA Representative suggested that I drive somewhere to obtain cash or change but I informed them that we were at a hospital and that doing this would make me very late/miss my son's appointment, wasting valuable NHS resources. The APCOA Representative then advised me to go to my appointment and if I got a parking charge notice to write to APCOA explaining my circumstances and outlining our conversation. I, reasonably, assumed that if I did get a PCN and did as the APCOA Representative had advised, any charge would be immediately cancelled.

I did get a PCN and wrote to APCOA accordingly. However, they did not uphold the appeal.

I acted, in good faith, on the advice of an APCOA Representative, rendering any other contract APCOA claim was entered into, invalid.

In order for a contract to be valid, the driver must be able to read the terms and conditions of that contract before entering into it. As the BPA CoP states (clause 28.2) 'Entrance signs located at the entrance of the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of.' The placement of the entrance sign as detailed above therefore renders any contract claimed by APCOA, invalid. In the letter APCOA sent me after my appeal they stated that 'the terms and conditions of the car park are clearly displayed at the entrance to the site. By entering and remaining on the property you have agreed to abide by these conditions.'. I challenge their assertion that terms and conditions were clearly displayed at the entrance to the site and contend that they fail to properly and clearly warn/inform the driver of the terms in this car park in compliance with the BPA CoP and put them to strict proof of this.

Even if the sign at the main entrance to the car park was compliant and valid (which it is not) it states that a breach of terms and conditions 'may' result in a PCN. I therefore believe it would be wholly reasonable to think that, after my telephone conversation with an APCOA Representative, no charge would be levied.


The Ealing Hospital website does lay out the parking charges but does not provide information that the machines only accept coinage, with no change and that there is no facility for phone/credit card payments. No signage in the car park, other than that located at the actual ticket machines, states this either.

3. Punitive Sum / Not A Genuine Pre-Estimate Of Loss
I believe the amount APCOA are trying to claim is a punitive sum. I believe that APCOA cannot claim penalties, as this is an unfair term. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:

''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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.

A sign of terms placed at the car park is far from transparent and is also rendered void by the conflicting advice given by the APCOA Representative, contacted by phone, in good faith.

According to the hospital website, 'failure to display a valid parking ticket may result in with you being issued with a parking enforcement notice of £30'. However APCOA then tried to extract double that amount from me, as I tried to challenge the ticket, as registered keeper of £60. As stated above, that demand for payment has now risen to £110. I fail to see how these charges can be considered as anything other than punitive.

Schedule 2 of the 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, having attempted to pay the initial parking fee and acting on the advice of an APCOA Representative, that an attempt be made to profit by charging a disproportionate sum. 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.

4. Lack of Standing / Authority From Landowner
APCOA have no standing as they are an agent, not the landowner. They also have no BPA compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put APCOA to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement 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 APCOA and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that APCOA can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged.

I therefore respectfully request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.

Redx

the first link in my last reply has not a gpeol as a separate entity and gives full details in the subsequent paragraph, yours does not

I quote

[FONT=&quot]1. [/FONT][FONT=&quot]The amount demanded is not a Genuine Pre-estimate of loss

[/FONT][FONT=&quot]The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach. [/FONT]
[FONT=&quot]
The BPA code of practice states:

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.

19.6 If your parking charge is based upon a contractually
agreed sum, that charge cannot be punitive or
unreasonable.

I require TPS to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.

In this case parking was reserved for staff of the hospital. As a staff, I had a valid parking permit as a result.

For this example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.
[/FONT]

[FONT=&quot][FONT=&quot]

[FONT=&quot]now if [FONT=&quot]you can see that (or an amended version seeing as [FONT=&quot]its not quite right for you as its staff and TPS , not private and apcoa[/FONT]) in your appeal I apologise for missing it

[FONT=&quot]my thoughts are it should be number one and a[FONT=&quot]s a separate full appeal point (even if it were point 5) and y[FONT=&quot]ou removed the words from the Punitive Sum header

[FONT=&quot]once you have this in then I think its reasonable and could go, providing nobody else finds fault with your popla appeal

[FONT=&quot]but I would have added that a receipt fo[FONT=&quot]r PTAS and paypal can be produced upon request, I did mention this in my [FONT=&quot]previous reply b[FONT=&quot]ut I cannot see it in your appeal, apol[FONT=&quot]ogies if its in there

[FONT=&quot]if these 2 issues are not in there, then I am loath to keep repeating myself, but I will give you genuine help as demo[FONT=&quot]nstrated by my replies, so I would say you are about 80% there now

[FONT=&quot]good luck[/FONT]
[/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT]

Marktheshark

If they turn it down, name the Driver if "someone else in the family might have been driving"
can find nothing that forbids a POPLA Keeper appeal and then a POPLA driver appeal.

Redx

Marktheshark wrote: »

If they turn it down, name the Driver if "someone else in the family might have been driving"
can find nothing that forbids a POPLA Keeper appeal and then a POPLA driver appeal.

I believe they already named the driver when they appealed the windscreen ticket, therefore this is a driver appeal which is why there are no POFA 2012 appeal points

Marktheshark

Pity, but however, Hmm Keeper appeals to POPLA with a Crap appeal saying i was not the driver.
They turn it down, so Keeper names Driver to parking firm.
Driver then appeals with a POPLA that wins.
£29 x 2 = result.
Might have something here
All above board obviously..

QuestionsQuestions13

Thanks again. I had stated that I would supply receipts for parkingticketappeals.org as advised but probably hadn't stated it clearly enough or in the right place. I've now done so.

I have indeed already admitted I was the driver so can't appeal on that point at all.
I'm a little confused over the advice about non GPEOL and punative sums. I've separated GPEOL out and put it as the first point as advised, modifying the text in the quoted link to make it fit my case. However, I don't totally understand what the last two paragraphs mean and have not included them.
[FONT=&quot]For this example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.[/FONT]
Am I right to leave them out??

I have included punitive sums separately and as a later point.

I have included a further appeal point, copied from the example you sent me Terms Levied Are Unreasonable as it seems relevant.

I really am very grateful for all your time and help and apologise if it appears I haven't been taking your comments on board. I may have got hold of the wrong end of the stick on some points but I have genuinely tried to incorporate everything you've said. This really has been a very steep learning curve for me and your help has been invaluable so thank you.

Again, I'd be really grateful for any comments/criticisms anyone has. I'm hoping that I'm getting there!

am the registered keeper of the above car and hold a valid driving licence, I am not liable for this Parking Charge Notice for the reasons detailed below. I acknowledge that the 28 day deadline for submitting this appeal to you has expired but note that the Lead Adjudicator can allow late appeals in unusual circumstances. I claim such extenuating circumstances and would respectfully ask that my appeal be considered notwithstanding. I would ask that this be clarified with the Lead Adjudicator.

I received a windscreen ticket at the Ealing Hospital car park on 18.11.14 and immediately wrote to APCOA explaining the circumstances detailed below. On 4.12.14 I received a letter from them stating that they did not uphold my appeal. I determined to appeal the Parking Charge Notice but did not feel confident in doing so myself. As such, I paid a company called parkingticketappeals.org.uk to take on the case. Parkingticketappeals.org.uk assured me they would put in an appeal to you and that I did not need to do anything unless I received further correspondence from APCOA.

I had researched the company and found they had been operating legitimately and in a timely manner so, reasonably I believe, assumed the appeal to you had been lodged. Emails to and from parkingticketappeals.org.uk, a receipt from them and a Paypal receipt for their services can be provided upon request.

On 31.1.15 I received a letter from Debt Recovery Plus Ltd demanding payment of an unpaid parking charge £110. I presumed an error had occurred and attempted to contact parkingticketappeals.org.uk for reassurance. Their phone line was dead. Their website simply advised that they had ceased trading. At no point had I been contacted and informed that they were not dealing with my appeal. I have researched the appeals process as quickly as possible and hope that the Lead Adjudicator will be understanding of the circumstances stated and consider my appeal despite it being out of the 28 day application period.

I am not liable for this Parking Charge Notice on the following grounds and would ask that they are all considered.

1. The amount demanded is not a Genuine Pre-estimate Of Loss.
2. Signage at the car park was non compliant with the British Parking Association standards and
there was therefore no valid contract between the parking company and the driver.
3. No contract with the driver in question.
4. The parking company has no contract with the landowner that permits them to levy charges on
motorists up to pursuit of these charges through the court.
5. No right to impose a punitive sum.
6. Terms levied are unreasonable.

1. The amount demanded is not a Genuine Pre-estimate Of Loss.
The wording on the signs appears to indicate that the parking charge represents damages for a breach of the parking contract - liquidated damages, in other words compensation agreed in advance. Accordingly, the charge must be a genuine pre-estimate of loss. The estimate must be based upon loss flowing from a breach of the parking terms. This might be, for example, loss of parking revenue or even loss of retail revenue at a shopping centre.

The parking company submitted that the charge is a genuine pre-estimate of the losses incurred in managing the parking location. The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. I require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach.

The BPA code of practice states:

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.'

19.6 'If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.'

I require APCOA to provide a detailed breakdown of how the amount of the 'charge' was arrived at. I am aware from court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimate losses.


2. The Signage Was Not Compliant with the BPA Code of Practice or readable before parking - so there was no valid contract formed between the parking company and the driver.

The sign at the main entrance to the car park is situated on the right hand side of the road, across a lane of traffic, at an angle and approximately a metre away from the kerbside. Therefore, when turning into the car park it is obscured by traffic exitting the car park and cannot be read. Notwithstanding, the text on the sign is not sufficiently large enough to be read when turning into the car park. It clearly does not comply with Appendix B of the BPA Code of Practice which states that 'The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. '.

Furthermore, there is access to the car park via a side road before the main entrance which has no signage on it at all, readable, compliant or otherwise.

Appendix B of the BPA CoP (Entrance Signs) states the the 'AOS roundel must always be shown on the sign.' The signs at Ealing Hospital do not comply with this.

Clause 19.9 of the BPA CoP states that 'You should warn drivers that if they delay payment beyond a payment period of 28 days, and you need to take court action or use debt-recover methods to recover a debt, there may be and extra 'recovery charges for debt-recovery action.' There is no such warning on any of the signs in Ealing Hospital.

The entrance sign does not clearly state that the site is managed (BPA CoP clause 28.2).

I put APCOA to strict proof of clear, readable, compliant, properly located signage being available at the entrances and indeed around this car park which complies with the BPA CoP. As a POPLA assessor has said previously in an adjudication “Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

A lack of signs at the entrance to the car park and unclear wording creates no contract.

3. No contract with the driver.
I parked the car in the car park of Ealing Hospital having taken my eight year old son, who has Additional Needs, for an outpatients appointment. On arrival at the ticket machine I was surprised to find that it did not take bank notes. I did not have enough change to pay the parking charge so I telephoned the number given on signage next to the ticketing machine and spoke to a representative of APCOA (call ref: 17112014192). I asked to pay the parking charge over the phone but was told this was not a facility that was provided. The APCOA Representative suggested that I drive somewhere to obtain cash or change but I informed them that we were at a hospital and that doing this would make me very late/miss my son's appointment, wasting valuable NHS resources. The APCOA Representative then advised me to go to my appointment and if I got a parking charge notice to write to APCOA explaining my circumstances and outlining our conversation. I, reasonably, assumed that if I did get a PCN and did as the APCOA Representative had advised, any charge would be immediately cancelled.

I did get a PCN and wrote to APCOA accordingly. However, they did not uphold the appeal.

I acted, in good faith, on the advice of an APCOA Representative, rendering any other contract APCOA claim was entered into, invalid.

In order for a contract to be valid, the driver must be able to read the terms and conditions of that contract before entering into it. As the BPA CoP states (clause 28.2) 'Entrance signs located at the entrance of the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of.' The placement of the entrance sign as detailed above therefore renders any contract claimed by APCOA, invalid. In the letter APCOA sent me after my appeal they stated that 'the terms and conditions of the car park are clearly displayed at the entrance to the site. By entering and remaining on the property you have agreed to abide by these conditions.'. I challenge their assertion that terms and conditions were clearly displayed at the entrance to the site and contend that they fail to properly and clearly warn/inform the driver of the terms in this car park in compliance with the BPA CoP and put them to strict proof of this.

Even if the sign at the main entrance to the car park was compliant and valid (which it is not) it states that a breach of terms and conditions 'may' result in a PCN. I therefore believe it would be wholly reasonable to think that, after my telephone conversation with an APCOA Representative, no charge would be levied.

The Ealing Hospital website does lay out the parking charges but does not provide information that the machines only accept coinage, with no change and that there is no facility for phone/credit card payments. No signage in the car park, other than that located at the actual ticket machines, states this either.

4. The parking company has no contract with the landowner that permits them to levy charges on motorists up to pursuit of these charges through the court.
APCOA have no standing as they are an agent, not the landowner. They also have no BPA compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put APCOA to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement 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 APCOA and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that APCOA can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged.

5. No right to impose a punitive sum.
I believe the amount APCOA are trying to claim is a punitive sum. I believe that APCOA cannot claim penalties, as this is an unfair term. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:

''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 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.

A sign of terms placed at the car park is far from transparent and is also rendered void by the conflicting advice given by the APCOA Representative, contacted by phone, in good faith.

According to the hospital website, 'failure to display a valid parking ticket may result in with you being issued with a parking enforcement notice of £30'. However APCOA then tried to extract double that amount from me, as I tried to challenge the ticket, as registered keeper of £60. As stated above, that demand for payment has now risen to £110. I fail to see how these charges can be considered as anything other than punitive.

Schedule 2 of the 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, having attempted to pay the initial parking fee and acting on the advice of an APCOA Representative, that an attempt be made to profit by charging a disproportionate sum. 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.

6. Terms levied are unreasonable.
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.”

On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.

I therefore respectfully request that my appeal is upheld and for POPLA to inform APCOA that the charge is dismissed.

Redx

[FONT=&quot]For this example, were no breach to have occurred then the cost of parking enforcement (for example, erecting signage, wages, uniforms, office costs) would still have been the same and, therefore, may not be included.

It would, therefore, follow that these charges were punitive, have an element of profit included and are not allowed to be imposed by parking companies.[/FONT]

Am I right to leave them out??

the first point is there because parking companies run a business where they buy uniforms, put up signage , run cars , offices , buy paper, all sorts of costs including wages etc, these costs would be the same if you had not been there, so they cannot include them , the only loss suffered would be any losses by the landowner, such as at ticket machines , plus costs of recovery etc , so lets say £1.50 parking fee , £2.50 dvla fee and £5 paperwork to send you a letter demanding say £10 or £12 to cover those loses I mentioned (the OFT deemed it to be about £12)

so lets assume anything above £12 is a penalty, a punishment , not allowed because they would be in a better position than if you had paid at the time, and they have to pay all those other costs regardless as part of running their business, even if nobody parked there all day or at all , like running a bus time table even if there are no passengers

hence it stays in

the second point means that if their accounts show a higher figure , its punitive in nature and designed to deter or to punish by way of a penalty fee, which isnt allowed under contract law etc

therefore it stays in

so assuming you put them back in , the assessor would see you have already said these items should not be allowed, so if they are in the PPC evidence pack he would deem the accounst to be incorrect, and therefore not a gpeol

so you are rebutting what you assume they will put into their false accounting that inflates the costs up to their notional maximum figure, so up to say £100 and not say £10 recovery and restitution fee

so once its fine tuned, if no errors are in it, its probably good to go

QuestionsQuestions13

That's brilliant. Makes perfect sense now. I've put it in. Thanks again for all your help and very prompt replies. I'll read it over it again and hopefully get it off tomorrow. I really have learnt a huge amount and will post to say how I got on. Thank you.

Redx

ok , so put up your final appeal in here too, so anyone else can use it as the basis for an apcoa and popla and hospital appeal, if it is successful

please remember, this is not just about you, its about others learning from you too (a 2 way st)

good luck

ps@- if you read that long running saga about apcoa and another hospital, maybe its time you went on the offensive and make life hell for the trust like he is doing ?

MothballsWallet

QQ13, remember: as RedX said earlier, if you get any letters from Zenith Debt Collectors, you can treat them the same as DRP!

(Zenith = a different desk within the DRP office.)