We’d like to remind Forumites to please avoid political debate on the Forum.
This is to keep it a safe and useful space for MoneySaving discussions. Threads that are – or become – political in nature may be removed in line with the Forum’s rules. Thank you for your understanding.
IMPORTANT: Please make sure your posts do not contain any personally identifiable information (both your own and that of others). When uploading images, please take care that you have redacted all personal information including number plates, reference numbers and QR codes (which may reveal vehicle information when scanned).
📨 Have you signed up to the Forum's new Email Digest yet? Get a selection of trending threads sent straight to your inbox daily, weekly or monthly!
The Forum now has a brand new text editor, adding a bunch of handy features to use when creating posts. Read more in our how-to guide
UKPC Ticket - Popla Appeal...Help!
Daver
Posts: 56 Forumite
Hi All,
I received a PCN from UKPC, I appealed to them with mitigating circumstances, I might as well have said I was abducted by aliens for a couple of hours the good that did, unfortunately and somewhat stupidly, on my behalf I didn't research fighting these 'scam' notes before wasting my time appealing directly, as a result I have appealed as the driver and had it knocked back. Fortunately I found this Forum before doing as many have and wasting my breath with mitigating circumstances to POPLA!
I have done my homework and spent many hours reading the info on this site and a couple of other well known ones and come up with the following appeal using information I have found on here, I'm hoping that some of you in the know may be able to cast an eye over it prior to submission
In a nutshell I parked on a free car park that is fairly well signposted and lit, but with no signs at the entrance, unfortunately it was near Christmas the place was packed with people going to the cinema and they are building two new units that has taken a large chunk of the car parking away..... I was ticketed for parking outside of a marked bay,UKPC had a field day they probably issued in excess of 50 tickets! I tried talking to the Cinema manager but he admitted he had been ticketed and had paid it...more fool him!
Anyway, here is my popla submission, all comments welcome and will be gratefully received:-
Dear POPLA,
I am the driver of the above vehicle and on xx-12-2014 my vehicle XXXX was issued with a Penalty Charge Notice (XXXXXX) which I am appealing. I wish to appeal on the grounds outlined below:
1. The Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.
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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event.
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2. Unclear Signage – No contract with driver
A lack of signs at the entrance to a car park, and unclear wording, creates no contract. UKPC signs at the entrance to this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B worded below (Mandatory Entrance Signs) UKPC has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival (see attached picture for car park entrance with no sign).
18.2 Entrance signs, located at the entrance to 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. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.
The sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''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''.
3. Lack of standing/authority from landowner
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). UKPC has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.
I require UKPC to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the BPA Code of Practice and does not allow UKPC (specifically) to issue proceedings for this sum for this alleged contravention in this car park.
UKPC have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of UKPC contracts. In my case with this car park site, if UKPC cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.
5) 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. 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.
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 attempt to profit by charging a disproportionate sum where no loss has been caused by an act of parking in a free car park. I put this Operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
I therefore respectfully request that my appeal is upheld and for POPLA to inform UKPC that the charge is dismissed.
Yours faithfully,
I received a PCN from UKPC, I appealed to them with mitigating circumstances, I might as well have said I was abducted by aliens for a couple of hours the good that did, unfortunately and somewhat stupidly, on my behalf I didn't research fighting these 'scam' notes before wasting my time appealing directly, as a result I have appealed as the driver and had it knocked back. Fortunately I found this Forum before doing as many have and wasting my breath with mitigating circumstances to POPLA!
I have done my homework and spent many hours reading the info on this site and a couple of other well known ones and come up with the following appeal using information I have found on here, I'm hoping that some of you in the know may be able to cast an eye over it prior to submission
In a nutshell I parked on a free car park that is fairly well signposted and lit, but with no signs at the entrance, unfortunately it was near Christmas the place was packed with people going to the cinema and they are building two new units that has taken a large chunk of the car parking away..... I was ticketed for parking outside of a marked bay,UKPC had a field day they probably issued in excess of 50 tickets! I tried talking to the Cinema manager but he admitted he had been ticketed and had paid it...more fool him!
Anyway, here is my popla submission, all comments welcome and will be gratefully received:-
Dear POPLA,
I am the driver of the above vehicle and on xx-12-2014 my vehicle XXXX was issued with a Penalty Charge Notice (XXXXXX) which I am appealing. I wish to appeal on the grounds outlined below:
1. The Charge not a genuine pre-estimate of loss
The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. I put UKPC to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated.
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 PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event.
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.
This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''
2. Unclear Signage – No contract with driver
A lack of signs at the entrance to a car park, and unclear wording, creates no contract. UKPC signs at the entrance to this car park are sparse and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B worded below (Mandatory Entrance Signs) UKPC has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival (see attached picture for car park entrance with no sign).
18.2 Entrance signs, located at the entrance to 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. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B.
A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms.
The sign breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver: ''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''.
3. Lack of standing/authority from landowner
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put UKPC to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). UKPC has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that UKPC are entitled to pursue these charges in their own right.
I require UKPC to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the BPA Code of Practice and does not allow UKPC (specifically) to issue proceedings for this sum for this alleged contravention in this car park.
UKPC have previously failed in several attempted small claims in 2014 when it was exposed that only their principal had the right to start court proceedings. I say this is likely to be typical of UKPC contracts. In my case with this car park site, if UKPC cannot show the landowner has authorised them to pursue PCNs in the court in their own name alone, they will fail to show they have standing and authority. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
A redacted contract will not refute my assertion either because the redaction could be the relevant wording about who can start court proceedings.
5) 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. 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.
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 attempt to profit by charging a disproportionate sum where no loss has been caused by an act of parking in a free car park. I put this Operator to strict proof to justify that their charge, under the circumstances described does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
I therefore respectfully request that my appeal is upheld and for POPLA to inform UKPC that the charge is dismissed.
Yours faithfully,
0
Comments
-
so to recap you breached the terms and conditions clearly displayed but feel it's not your fault. Good luck with that.
'In a nutshell I parked on a free car park that is fairly well signposted and lit, but with no signs at the entrance, unfortunately it was near Christmas the place was packed with people going to the cinema and they are building two new units that has taken a large chunk of the car parking away..... I was ticketed for parking outside of a marked bay,UKPC had a field day they probably issued in excess of 50 tickets! I tried talking to the Cinema manager but he admitted he had been ticketed and had paid it...more fool him!'0 -
zebras-ark wrote: »so to recap you breached the terms and conditions clearly displayed but feel it's not your fault. Good luck with that.
'In a nutshell I parked on a free car park that is fairly well signposted and lit, but with no signs at the entrance, unfortunately it was near Christmas the place was packed with people going to the cinema and they are building two new units that has taken a large chunk of the car parking away..... I was ticketed for parking outside of a marked bay,UKPC had a field day they probably issued in excess of 50 tickets! I tried talking to the Cinema manager but he admitted he had been ticketed and had paid it...more fool him!'
Oh dear me.. Some people.
The experts will be along shortly to help you.0 -
they most probably will but it won't alter the relevant facts0
-
zebras-ark wrote: »they most probably will but it won't alter the relevant facts
And the relevant facts include that this is not a GPEOL amongst other things.0 -
guilty or not, the punishment does not fit the crime, not in law, neither have they demonstrated they have the right or contract to pursue charges , plus the law only says they can receive the pre estimate of loss, which we know the OFT ruled at £12 a few years ago and PE showed as say £18 in last years Beavis case , not the £85 or £100 they wanted (hence its going to the COA next week)
so , you appeal and you either win or lose on the ACTUAL legal points you have written, not the fact you parked there and maybe should not have done so - who knows ? mitigation and guilt or not being tested here, just the legalities
anyway, I have one small criticism only, you havent put a bullet point menu just before the main 3 appeal points, so put a menu of the 3 individual headers just above point 1)
then I think its good to go, others may feel something else should be added but as I say its ok to me
proof read it for typos or the wrong company being named etc (errata) , first
and dont miss the popla expiry date whatever you do
well done on putting this together on your own
if popla rule in your favour, its irrelevant what the trolls think
good luck0 -
zebras-ark wrote: »so to recap you breached the terms and conditions clearly displayed but feel it's not your fault. Good luck with that.'[/I]
Mmmmm.... there was me thinking Zebras were black and white stripey horsey things that lived on the great plains of Africa...appears they now come in a shade of green and live under dark bridges....well you learn something new every day!:rotfl:0 -
We all await keenly the COA result next week (some apparently more than others).
'I was ticketed for parking outside of a marked bay' not for an overstay but because you were parked outside the marked bay. So apparently there is a charge for leaving your car randomly parked somewhere in a car park. That is outrageous you should pursue a claim urgently for ....... I'm sure someone on here will know.
You invited comments in your opening post, all you really wanted was posters to say yep spot on! that'll show them! So :T excellent good work that should make them tremble in awe.0 -
Which part of "punishment does not fit the crime" are you struggling to comprehend?0
-
zebras-ark wrote: »so to recap you breached the terms and conditions clearly displayed but feel it's not your fault. Good luck with that.
'In a nutshell I parked on a free car park that is fairly well signposted and lit, but with no signs at the entrance, unfortunately it was near Christmas the place was packed with people going to the cinema and they are building two new units that has taken a large chunk of the car parking away..... I was ticketed for parking outside of a marked bay,UKPC had a field day they probably issued in excess of 50 tickets! I tried talking to the Cinema manager but he admitted he had been ticketed and had paid it...more fool him!'
Do you have proof that the terms and conditions were clearly displayed, that the parking company have suffered a loss by someone parking in a free car park, that the parking company didn't breach the Code of Practice of the BPA, that a contract was formed between the parking company and the driver? Are you absolutely sure the parking company didn't mislead the driver by not having adequate signs at the entrance that could be read by a driver in a moving vehicle without having to significantly move their head from the direction they were driving? Are you absolutely sure the parking company didn't deliberately entrap the driver by not displaying the terms and conditions of parking at the entrance?
Do you work for a private parking company?I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
what I fear is more annoying calls after next weeks COA case asking if I'm the 'victim of an unfair parking charge etc etc' as per PPI and Injury claims.0
This discussion has been closed.
Confirm your email address to Create Threads and Reply
Categories
- All Categories
- 353.5K Banking & Borrowing
- 254.1K Reduce Debt & Boost Income
- 455K Spending & Discounts
- 246.6K Work, Benefits & Business
- 602.9K Mortgages, Homes & Bills
- 178K Life & Family
- 260.5K Travel & Transport
- 1.5M Hobbies & Leisure
- 16K Discuss & Feedback
- 37.7K Read-Only Boards