Would like (urgent) help with Popla appeal

CellinoOut

Hi

I've been fined by UKPC (UK Parking Control) for parking for 40 minutes in a layby at night (it was dark and I didn't see the displayed notices).

I've sent a first appeal letter using the template on this site.

UKPC has rejected it, meaning my next stage is Popla.
How do I word my Popla appeal? My case doesn't seem to be covered on the Popla appeals thread here:
forums(dot)moneysavingexpert(dot)com/showthread(dot)php?p=62180281&posted=1

PS: Because I've been away, the "28-day limit" for appealing to Popla expires Feb 28.

Thank you all in advance.

UKPC's letter is below:

In contravention of the parking restrictions on site, your contract with UKPC was breached. Losses to UKPC have stemmed from this breach, for which UKPC must be compensated. Our parking charge sums have been calculated to reflect a genuine pre-estimate of these losses.

b) The site in question has sufficient and clear signage. On the balance of probabilities, the signage and thus the terms of parking were clearly seen and understood. The predominant purpose of the charge is to compensate UKPC for its loss. The assertion that the predominant purpose of UKPC's charges is to deter is wholly unfounded.
c) UKPC has contractual authority from the landowner to issue parking charges on site. Naturally, this contract is commercially sensitive and will not be disclosed in response to unsubstantiated suspicions.
d) All of UKPC's notices comply with the Protection of Freedoms Act 2012, the BPA Code of Practice and all other applicable laws and regulations.
e) A contract cannot simply be "denied" after it has been validly constituted and then breached. The offer from contractual relations is provided by the sufficient and clear signage on site. This offer is accepted by conduct when a motorist decides to park on site. Obvious consideration flows from both parties – the provision of a parking place from the parking operator and the promise to be bound by parking restrictions by the motorist.

Your formal challenge and "drop hands" offer are both understood but respectfully rejected. UKPC takes its duty to mitigate its losses very seriously and strives to do so. However, your offer of £18 per hour plus other expenses/damages for your time, if UKPC continues to pursue its compensation, is unambiguously rejected.

It is reminded that The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (the implementation of the EU Directive on Consumer Rights) will not aid you in escaping liability under your parking charge. The contract between UKPC and yourself has already concluded and all services (the provision of a parking space) have been supplied. There are no new obligations stemming from this contract. Attempting to cancel this contract via the Act is thus superfluous. In any case, the breach and loss to UKPC created by yourself occurred before this attempted cancellation. UKPC is entitled to pursue liquidated damages for this breach of contract to compensate for the loss it has suffered. There is nothing in these Regulations that precludes acceptance of terms of parking by conduct. Section 9 of the 2013 Regulations does state that changes to a contract must be "expressly agreed", which may be what you are referring to, though it is irrelevant to the present situation.

A reply to your appeal does not represent acceptance of your raised points or any other offer. Your appeal is wholly rejected and it is urged that you make payment for your lawfully issued charge.

We appreciate this is not the outcome you will have hoped for. Unless you have any additional information that you have not already brought to our attention, this decision is final.

In the light of the contents of this letter, you now have a number of options.

1. Pay the parking charge detailed above at the reduced rate of £60.
2. Make an appeal to Popla within 28 days of the date of this letter or by making an appeal online at Popla (dot) com. Please note that if you wish to appeal to Popla, you will lose the right to pay the charge at the discounted rate of £60. Should Popla's decision not go in your favour, you will be required to pay the full amount of £100.If you opt to pay the parking charge you will be unable to appeal to Popla.
3. If you choose to do nothing the parking charge will automatically increase after 35 days from the date of this letter to £100 and the matter will be passed to our debt recovery agent, at which point you will be liable to pay an additional charge of £60, in accordance with our terms and conditions of parking, and any further charges will be claimed if Court action is taken against you. Any unpaid court judgment may adversely affect your credit rating.

Yours faithfully
(THERE'S JUST A SQUIGGLE)
Appeals Department
UK Parking Control

Redx

use one of the usual appeal examples linked by the blue words in post #3 of the NEWBIES sticky thread , mainly concentrating on not a gpeol , no contract and poor signage

"what happened" is rarely relevant, so just pick a good enough match and adapt it , making sure it says UKPC and not some other company when you have finished (a common mistake when copying and pasting)

ps:- its not a "FINE", its an INVOICE, they are completely different

Jim_AFCB

Paste your POPLA appeal on here before sending it.

PS Guessing you're a Leeds fan?

CellinoOut

Jim_AFCB wrote: »

Paste your POPLA appeal on here before sending it.

PS Guessing you're a Leeds fan?

But don't hold it against me.
I wasn't there in May 1990.

CellinoOut

Hi

I've been fined by UKPC (UK Parking Control) for parking for 40 minutes in a layby at night (it was dark and I didn't see the displayed notices).

UKPC's letter rejecting my appeal is in my post at the top of this thread.
The letter I now plan to send to Popla is this below.
Any suggestions/comments gratefully received.
Today is apparently the last day on which I can submit my Popla letter.
Thanks

As the registered keeper of the vehicle, registration number X00 XXX, I wish to appeal against the parking charge issued by UK Parking Control Ltd (UKPC).

My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.

2. Contract with the landowner – no locus standi.

3. Notice to Keeper not properly given under POFA 2012 – no keeper liability.

4. Lack of photographic evidence and unreliable, unsynchronised and non-compliant ANPR system.

5. Unclear and non-compliant signage, forming no contract with drivers.


To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
UKPC states in its letter of rejection that the parking charge represents a genuine pre-estimate of loss. Accordingly, the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable under contract law. The estimate must be based upon loss flowing from a breach of the parking terms.

I require UKPC to submit a full breakdown of how these losses are calculated in this particular area and for this particular "contravention". UKPC cannot lawfully include its operational day-to-day running costs (e.g. provision of signs, ANPR and parking enforcement) in any "loss" claimed. Not only are those costs tax-deductible, but were no breaches to occur in that area, the cost of parking "enforcement" such as it is would still remain the same.

According to the Unfair Terms in Consumer Contract Regulations, parking charges for breach on private land must not exceed the cost to the landowner during the time the motorist is parked there. As the landowner does not impose a parking fee for the area in question, there is no loss to UKPC or the landowner. The Office of Fair Trading has stated that ''a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.''

Furthermore, in the 2014 Popla Annual Report the Lead Adjudicator, Mr Greenslade, stated: "Genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If UKPC presents what it describes as a genuine pre-estimate of loss statement I require them to show documentary evidence regarding exactly when this "pre-estimate of loss" was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put UKPC to strict proof that they ever had such a meeting.

If there was no meeting to discuss the charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94: "I do not believe the evidence…that there was ever an attempt at a genuine pre-estimate of loss.

"I have found that there was no meeting in 2007…it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance…
"Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate…shows to my mind that in so far as the claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other.
"In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty."

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as UKPC made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might "tolerate".

I contend that UKPC's figure of £100 (or a reduced rate of £60) is a penalty clause in terrorem to deter breach and cannot be commercially justified.

Popla assessor Chris Adamson stated in June 2014: "'I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the operator, 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 Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of 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. Contract with landowner - no locus standi
UKPC does not own or have any interest or assignment of title of the land in question. As such, I do not believe UKPC has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in area, or indeed to allege a breach of contract.
Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists).
Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any "loss" calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow UKPC to pursue these charges in its own name as creditor in the courts, and to grant it the standing/assignment of title to make contracts with drivers.

In Popla case Ref 1771073004, Popla ruled that a witness statement was "not valid evidence". This witness statement concerned evidence that could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then Popla should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between UKPC and its client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19 December 2013 (Transcript linked: XXXXXXXX)

In that case the judge found that, as the operator did not own any title in the car park: "The decision to determine whether it is damages for breach…or a penalty…is really not for these claimants but…for the owners. We have a rather bizarre situation where the claimants make no money apparently from those who comply with the terms…and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that…the Claimants are the wrong claimants. They have not satisfied this court that they have suffered any loss…if anything, they make a profit from the breach."

I challenge this operator to rebut my assertion that its business model is the same "nonsense" and is unenforceable. UKPC cannot build its whole business model around profiting from those it considers to be in breach of a sign, on land where it has no locus standi, and then try to paint that profit as a perpetual loss.

3. Unclear and non-compliant signage, forming no contract with drivers.
Due to their high position and the barely legible size of the small print, the signs in this area are very hard to read. I contend that the signs and any core parking terms that UKPC is relying upon were too small for the driver to discern when driving and that the signs in the area also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they "must" have been seen by the driver. Indeed, UKPC's letter dated 30 January 2015 rejecting my appeal acknowledges that "on the balance of probabilities" the sign was seen. I therefore contend that the elements of a contract were conspicuous by their absence.

4. Notice to Keeper not properly given under POFA 2012 – no keeper liability.
The Notice I have received, as the registered owner of the vehicle, makes it clear that UKPC is relying on Schedule 4 of the Protection of Freedoms Act 2012. UKPC has failed to comply in the wording of their Notice to Keeper since it has failed to identify the "creditor". This may, in law, be UKPC or its client, its debt-collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that "The creditor is…"

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but “identified”. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the "creditor" in its Notice to Keeper, UKPC has failed to establish keeper liability. In this case, the NTK has not been correctly "given" under POFA2012 and so it is a nullity. In a previous ruling, Popla assessor Matthew Shaw stated that the validity of a Notice to Keeper is "fundamental to establishing liability" for a parking charge, stating: "Where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act."


5. Lack of photographic evidence and unreliable, unsynchronised, non-compliant ANPR system.
I call into question the reliability and compliance of the ANPR system that UKPC is relying upon. I require the operator to present records that prove:
* The manufacturers' stated percentage reliability of the exact ANPR system used here.
* The dates and times of when the cameras in this area were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images.

The operator must produce evidence in response to these points and explain to Popla how its system differs (if at all) from the flawed ANPR system that was wholly responsible for the court loss by the operator in ParkingEye v Fox-Jones on 8 November 2013.

That case was dismissed when the judge said evidence from the operator was "fundamentally flawed" as the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

In addition, the unreliable/unsynchronised ANPR system used, and lack of information about the use of data, is not compliant with the BPA Code of Practice, which contains the following:
"21 Automatic number plate recognition (ANPR):
21.1 You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.
21.2: Quality checks: before you issue a parking charge notice you must carry out a manual quality check of the ANPR images to reduce errors and make sure that it is appropriate to take action. Full details of the items you should check are listed in the Operators’ Handbook.
21.3: You must keep any ANPR equipment you use in your car parks in good working order. You need to make sure the data you are collecting is accurate, securely held and cannot be tampered with.
21.4: It is also a condition of the code that if you receive and process vehicle or registered keeper data, you must:
• be registered with the Information Commissioner
• keep to the Data Protection Act
• follow the DVLA requirements concerning the data
• follow the guidelines from the Information Commissioner’s Office on the use of CCTV and ANPR cameras, and on keeping and sharing personal data such as vehicle registration marks."

At this location, there appear to be merely a few secret small cameras up high on a pole. No signs at the location clearly tell drivers about this technology or how the data captured by ANPR cameras will be used. This means the system does not operate in a reasonable, consistent and transparent manner, and I have reason to believe that, potentially, every section of paragraph 21 is breached here.

Unless the operator can show documentary evidence otherwise, then this BPA Code of Practice breach would also point to a failure to comply with the ICO terms of registration and a breach of the CPUTR 2008 (claiming to comply with the BPA Code of Practice when I believe it is not the case). This operator is put to strict proof to the contrary.


Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed.

Umkomaas

As your deadline expires today, you need to get this off NOW! Miss the deadline and you're in for months of hassle from the PPC and debt collectors.

I've done a very quick scan over your appeal (I don't proof-read these any more, too many newbies have just copied and dumped any old appeal, including leaving in the PPC's name from the copied appeal, when they were appealing against a quite different PPC, then leaving it to regulars to sort it out, line by line for them!).

You seem to have the key appeal points covered, especially GPEOL.

Just one point - you say the 'infringement' took place in a layby; was this covered by ANPR cameras? Seems a bit odd to me. If not captured by ANPR cameras, you need to leave out the references to them.

But your main task is GET IT SENT OFF TODAY!

CellinoOut

Here's the real fly in the ointment:
My appeal rejection letter from the parking company is dated Jan 30.
I've filed my Popla appeal online tonight Feb 28 -- technically one day outside the 28-day limit. (my miscalculation).

What now? Do I bite the bullet and pay the £60 penalty?

I note that the company's appeal rejection letter states:
"Make an appeal to Popla - the Independent Appeals Service, Popla, PO Box 70748, London EC1P 1SN within 28 days of the date of this letter OR (my emphasis) by making an appeal online at popla(dot)org.uk..."

If I'm being pedantic, that (misleadingly?) clearly states the deadline applies only to postal Popla appeals.

Umkomaas

Use this link to check your POPLA code deadline. If it's 28/2 or later you're OK; if it's any earlier, you've very little chance (based on previous missed deadline cases) regardless of hair-splitting the PPC description.

http://www.parkingcowboys.co.uk/popla-code-checker/

Don't pay, although you will get numerous letters from the PPC and/or their lapdog debt collectors for the next few months until, normally, they give up. However, you need to be aware that a civil 'debt' can be pursued for up to 6 years.