Some question regading POPLA process

Technics

I'm about to appeal a PCN with POPLA. I have already prepared the full appeal based on the excellent ideas available here but I have a quick question about the process when appealing online.

After I enter the POPLA code on the website presents me with a page for entering my details and allows me to choose some options for why I am appealing.

Finally there is a text box labelled "Please tell us your reasons for appealing:" Should I be pasting my entire 3.5 page appeal there at this stage or simply a summary?

hoohoo

Post it in that box, or put a line saying your appeal will be filed with your evidence, and then upload the appeal as a txtfile, pdf or word doc

Technics

Thanks for responding. I have now submitted a summary and stated that my full appeal will be uploaded with evidence. Should I do this ASAP or wait till I receive the PPC's evidence pack?

Technics

I don't expect anyone to read all of this but here is the full appeal I intend to submit:

My reasons for appealing the parking charge are as follows.


Inadequate signage and failure to establish a contract with the driver
UK Parking Control Limited (UKPC) asserts that the driver parked in a visitor/short term parking area for a period exceeding four hours, in breach of contract. I believe that the driver did not see the notices when they parked and at that time had no idea of any time limit whatsoever. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc were not satisfied.

The signage on the site in question is ambiguous and insufficient to establish the contract with the driver that UKCP are claiming exists. This is based both on the location of the signage and on the size of the font stating the conditions that UKPC claim the driver breached. These written in a much smaller font than the far more visible signage that allows the driver to park in the space in question for a "short term".

I believe that is entirely possible, and in fact likely that the driver simply noticed the clear signage located directly at the front of the parking bay in question and missed the signage UKPC is relying on to establish the contract. I have attached UKPC's own photos as evidence of this, as well as a photo of the sign directly at the front of the parking bay. The driver would clearly be able to see the sign stating that "short term" parking was allowed yet unless they turned 180 degrees and looked directly up a light pole at some very small text, it is unlikely they would be aware that this corresponds to a four hour period. This notice is the only signage between the parking bay and the building. At the time the notice to keeper was issues UKPC did not provide photos with sufficient resolution to read the condition they claim the driver has been breached. It simply could not be read in the photos they did provide.

The definition of what exactly constitutes a "short term" is unclear on the most visible signage and therefore I believe that had the driver seen this condition (which I cannot state on their behalf) they almost certainly intended to comply with it.

The charge is not a genuine pre-estimate of loss and no initial loss was suffered
Even if there was a contract (which is denied), the charge is disproportionate and does not represent a genuine pre-estimate of loss to the company or the landowner.

According to both the Unfair Terms in Consumer Contracts Regulations 1999 (and accompanying guidance provided by the Office of Fair Trading, attached) and the Guidance on Section 56 and Schedule 4 of the Protection of Freedoms Act 2012 provided by the Department for Transport (also attached), parking charges on private land must be based on a genuine pre-estimate of loss and not exceed the cost to the landowner during the period the motorist is parked there. In my case, the £100 charge originally requested from the keeper (and subsequently reduced offer of £60 after appeal) far exceeds the cost to the landowner as there was no parking charge levied, the car park is provided “free” to residents and guests who are permitted to enter. Therefore there was no initial loss to be perused and any subsequent losses are of the UKPC's own making.

The car park in question is also gated and requires the use of remote key-fob, pass-code or may be opened by contacting a resident via an intercom system. I would estimate that the car park typically the car park operates at around 50% capacity or less. As far as I'm aware the car park have never come close to reaching full capacity, having never witnessed this during the period I have resided in the building that the car park services. Which is in excess of 12 months. As I come and go frequently from the building in question and I would say with confidence that the car park has never exceeded 70% capacity in the past 12 months. So it is would seem to be impossible that the driver has prevented anyone from parking and UKPC has not provided evidence to the contrary.

From the photos provided, it appears that UKPC are claiming that the driver parked the vehicle in a visitors bay and it appears that no physical damage caused. There can have been no loss arising from this incident. Neither can UKPC lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

If there was no contract, then at most the allegation can only be a civil trespass. This is denied - and indeed the original Notice to Keeper did not mention trespass nor breach, so there is no charge applicable. However, for the avoidance of doubt, if UKPC do now try to allege that this is the nature of this 'charge' then the driver would be potentially only be liable for damages owed to the owner/occupier who may have suffered a loss, which is null as the landlord provided passes for the vehicle to use a bay in this car park and since no ‘damage’ occurred in the car park and also given the fact that the car park was not completely full in the car was on site, there was in fact no loss at all and this charge is purely an unenforceable penalty.

The charge that was levied is punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges of £25.00 for all day parking. This is all the more for the additional charges which operator states accrues after 28 and then 35 days of non-payment. This would apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by 40% for early payment that it is unreasonable to begin with.

Failure to mitigate the claimed loss
Based on the rejection of my initial appeal it appears that UKPC are claiming that the charge is a loss based on a breach of contract (which is denied). In these circumstances, following a breach of any contract, the innocent party has a duty to mitigate the loss it has suffered. This duty requires reasonable steps to be taken to limit the losses that are incurred (and also to avoid incurring unnecessary expenditure seeking to remedy the breach). A claimant cannot simply sit on its hands watching losses accumulate with the intention of recovering them in full from the defendant. This has been established in cases such as British Westinghouse Co v Underground Ry [1912] and more recently Bulkhaul Ltd v Rhodia Organique Fine Ltd [2008].

This requires the claimant to take any step which a reasonable a prudent person would ordinarily take in the course of his business to mitigate the loss. There have been at least two opportunities provided (and possibly others) for UKPC to mitigate any loss they claim to have suffered. However they have failed with respect to this obligation on both occasions.

The first opportunity was at the time of the claimed breach (which is not admitted). The vehicle in question has a residents parking permit places prominently above the dash board. This permit was on display prior to the claimed breach and I have confirmed that it remained on display after the breach so I have no reason to believe that it was not on display at the time of the claimed breach and UKPC have not provided evidence to the contrary. The agent issuing the initial Penalty Charge Notice on UKPC's behalf would have been well aware that these permits are typically affixed to vehicles permitted to park within the car park. A simple examination of the permit would have allowed the agent to identify which residence within the attached building was associated with the vehicle. Mindful of the losses that UKPC claim are a direct result of the parking event (which is denied) it would have been simple matter of using the intercom available to contact one of the of the persons at the residence, who could have removed the vehicle. I have confirmed that there was a resident at home at the time and that they were not contacted. UKPC has not provided any evidence to the contrary.

The second opportunity for UKPC to mitigate their loss was provided in my first appeal to them. I made a drop hand offer based on the fact that I have spent what would be otherwise productive time dealing with the claim at hand. I believe that the claim is without merit and that UKPC should have withdrawn it at this stage. This would have mitigated many of the losses that they claim to be part of their breakdown of costs.

Punitive charges
As it seems the charge does is not based on a genuine pre-estimate of loss they must be intended to be punitive and therefore void (i.e. unenforceable) against me. The charge of £100 (or reduced to £60) is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges. This is all the more so for the additional charge of £100 which they say accrues after 28 days (and increasing further after 35 days of the rejection of appeal by the keeper) for non-payment. This would also apply to their mention of any costs incurred through debt recovery unless it followed a court order.

The charge UKPC is attempting to levy is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, 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" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."
 
Authority to issue parking charges
In this case UKPC are not the landowner, nor do they have any interest in the land. They have not demonstrated sufficient standing or authorisation from the landowner to issues charged on the landowners behalf. In reply to my appeal they claim that a contract with the landowner exists yet cannot be provided because it is commercially sensitive. I believe it is not sufficient to assume the existence of such authority in the absence of evidence.

Summary
On the basis of all the points I have raised, this 'charge' fails to establish that a contract was formed with the driver and fails to comply with basic contract law.

Therefore I urge the assessor to uphold my appeal.

hoohoo

Technics wrote: »

Thanks for responding. I have now submitted a summary and stated that my full appeal will be uploaded with evidence. Should I do this ASAP or wait till I receive the PPC's evidence pack?

Do it asap.

When you get their evidence pack, email enquiries@popla.co.uk with a rebuttal if you disagree with their pack