Can I get some opinions of my PE appeal asap before it goes?

Gmc_2

[FONT=&quot]Bit of a Mash Up, but here goes...[/FONT]
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[FONT=&quot]As the registered keeper, I have received your parking invoice which of course, I decline your invitation to pay. I wish to invoke your appeals process, since all liability to your company is denied on the following basis:[/FONT]

[FONT=&quot]1) The amount being claimed is not a genuine pre-estimate of loss to your company or the landowner. The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified. If it is your case that that a trespass was committed or that a contract was breached such that your claim is one for damages; please give me a full breakdown of the actual losses which evidences that this parking charge is a true reflection of the damages caused solely by the alleged parking contravention.[/FONT]
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2) Your signage does not comply with the BPA Code of Practice and was not sufficiently prominent to create any contract. As keeper I believe that the signs were not seen, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent. – On entrance to Two Saints Car Park, it has been later observed that there are in excess of 8 signs to distract a driver attention on a driver’s side (Right hand). Your sign is over to the left, at an entrance to another car park which currently has no entry (due to recent layout changes), and is at best confusing and at worst totally unnoticeable. If it is your case that a contract has been breached or that a contractual sum is now due, please send me photographs of the signs that you display and upon which you seek to evidence that a lawful and legally enforceable contract was been entered into. Please ensure that the photographs show the terms and conditions in a clear and legible manner. Please provide me with a diagram showing the locations and layout of those signs at the car park. Also provide evidence that the wording is in plain and intelligible language and in sufficiently large print as to be legible to a driver at the car park’s entry point.[/FONT]
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3) You are not the landowner and do not have the standing to offer contracts nor to bring a claim for trespass. There is no evidence that you have any proprietary interest in the land. There was no consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied. [/FONT]

[FONT=&quot]Contractual Authority (as required by [/FONT][FONT=&quot]BPA Ltd AOS CoP B.7) - Please provide me with a copy of the contract between your company and the landowner/landholder that provides the necessary contractual written authority for the issue and enforcement of your Parking Charge Notice - Notice to Keeper.[/FONT]


[FONT=&quot]4) The 12 minutes they were over was actually time taken to enter the car park, find a suitable space (Parent and Child), park the car, execute prams etc., then return to the car, leave the space and exit the car park. On Saturday 21st March, at the time approaching Easter and Bank Hols and is Market Day, surely one of the busiest shopping days of the year and as such one where a more reasonable amount of ‘grace time’ to enter and exit the car park is the minimum expected by customers as per the BPA code of practice.[/FONT]

[FONT=&quot]5) Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.[/FONT]

[FONT=&quot](I should be grateful for specific answers to all questions raised above. In this respect I remind you of the obligations set out in the current Practice Direction on Pre-Action Conduct.)[/FONT]

[FONT=&quot]Your clients should be thoroughly ashamed of the shoddy way you treat consumers visiting their premises. The landowner will be made fully aware of this matter and your response, which I will forward to their CEO when I complain in writing and via social media, as appropriate.[/FONT]

[FONT=&quot]Parking firms like yours fail to demonstrate even a basic understanding of customer service. The reputation of your business model appears to be more akin to a protection racket than 'parking management'. Your ATA may offer sound-bites about driving up standards or fight for motorists' rights but in reality they are not a regulator; they merely exist to represent the interests of paying members, in order to gain access to DVLA data. The public have no faith in the private parking industry and, as far as I have seen, your firm has not shown itself to be any different than the ex-clampers with whom you share a membership.

The purpose of this communication is:

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. As such, you must either rely on the POFA 2012 or cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal postage costs. Equally, I have incurred costs to date, for researching the law and responding to your junk mail dressed up to impersonate a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15. Therefore, this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my out-of-pocket expenses and damages for harassment.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered by you and certainly was not expressly agreed. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - IAS or POPLA, then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies. The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations apply now to every consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that express consent is obtained for consumer contracts now - not implied consent - and that information is provided in a durable medium in advance.

You have failed to meet these requirements. The foisting of unexpected contracts like this on consumers, by stealth, is a thing of the past.

By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above. If you decide to persist with this unwarranted threat, I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs and a pre-estimate of my loss - and in contrast with yours, mine is genuine - is that this sum will be likely to exceed £100.

To summarise..[/FONT]

[FONT=&quot]Please issue your standard cancellation letter or a specific, detailed rejection letter. Any rejection letter should also contain a valid POPLA verification code in compliance with POFA regulations and that any delay in doing so will be reported to the BPA and DVLA. If you choose to send the latter, it must state:

- the legal basis of your charge (i.e. breach, trespass or contractual fee?) as your signage was not seen/accepted by the driver and your NTK failed to make the basis of the charge clear. As keeper, I cannot be expected to guess the nature of the allegation.

- if alleging breach of contract, with your rejection letter I require a breakdown of the liquidated damages suffered, and by whom, and when this calculation was determined and how this particular 'loss' arose. Please also explain how/why you charge a fixed sum no matter whether the alleged contravention was trivial or more serious and how that can amount to a genuine pre-estimate of loss.

- if alleging trespass please enclose evidence of the perpetrator and proof of the liquidated damages alleged and the calculation of this sum.

- if alleging 'contractual fee' I require that you now send me a VAT invoice by return and explain the daily rate for parking and service provided for the fee. Failure to provide this information and a VAT invoice now that I have requested it, will be considered evidence that this was not in fact a genuine offer to park for a fee and is merely a penalty which is not recoverable in contract law (as found by Mr Recorder Gibson QC, on appeal at Luton County Court in the case of Civil Enforcement v McCafferty 3YK50188 (AP476) 21/2/2014).

Take formal note:

(a) Your unsupported, unsolicited invoice and any further letters if you persist, will constitute harassment. If you continue, your contact and that of any agent will be deemed a 'serious and persistent unwarranted threat' as found by Lord Justice Sedley in Ferguson v British Gas Trading Ltd [2009] EWCA Civ 46 (10 February 2009) and I reserve the right to take the matter further. You have been informed that I consider this to be harassment so any decision to send further letters rather than cancel the invoice will reinforce the evidence of your persistent unwarranted threat and you may be required to justify your actions in court.

(b) Any obfuscation on your part, such as pretending I have to name the driver, alleging I am too late or unable to appeal as keeper or requiring more evidence when clearly I have already set out my full challenge for this stage, will be reported to the DVLA and to your respective ATA, as a sanctionable breach of your Code of Practice.

(c) If you reject my challenge and insist upon taking the matter further I must inform you that I may claim my costs from you and my time at the court rate of £18 per hour. The expenses I may claim are not exhaustive but may include the cost of stamps, envelopes, travel expenses and legal fees as well as liquidated damages for distress arising from harassment. [/FONT]

[FONT=&quot]By continuing to pursue me you hereby accept liability to pay my costs when I prevail and you acknowledge and imply full understanding of the above. [/FONT]

[FONT=&quot]I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.[/FONT]

[FONT=&quot]Please Note: Unless you have specifically requested it and received my express permission, you do not have my authority to disclose or refer this letter or any other communication from me to any other person or organisation.[/FONT]

[FONT=&quot]Yours faithfully,[/FONT]


[FONT=&quot]XXXXXX XXXXXXX
[/FONT]
[FONT=&quot](The Registered Keeper)[/FONT]


[FONT=&quot]Enc. Evidential proof of shopping at Two Saints Retail Park as an extract taken from a Bank Statement. Other stores were purchased from as cash transactions such as Aldi etc.[/FONT]

Gmc_2

Is there anyone?

Herzlos

I'd clean up this section:

[FONT=&quot]4) The 12 minutes they were over was actually time taken to enter the car park, find a suitable space (Parent and Child), park the car, execute prams etc., then return to the car, leave the space and exit the car park. On Saturday 21st March, at the time approaching Easter and Bank Hols and is Market Day, surely one of the busiest shopping days of the year and as such one where a more reasonable amount of ‘grace time’ to enter and exit the car park is the minimum expected by customers as per the BPA code of practice.

[FONT=&quot]Because they may use [FONT=&quot]it to try and infer you were the [FONT=&quot]driver when you want to appeal only as [FONT=&quot]the keeper.

[FONT=&quot]You[FONT=&quot] should be OK to say something like[FONT=&quot]:

[FONT=&quot]---[/FONT]
[FONT=&quot]4) The BPA COP requi[FONT=&quot]res a reasonable grace period to c[FONT=&quot]over entering the car park, finding a space and leaving, none of which const[FONT=&quot]itute parking[FONT=&quot]. [FONT=&quot]As the visit was alle[FONT=&quot]gedly in a [FONT=&quot]busy period, 12 minutes to enter,[FONT=&quot] par[FONT=&quot]k and leave sounds entirely reasonable.

[FONT=&quot]---


[FONT=&quot]The rest looks fine, but as it's going to get rejected anyway, you shouldn't worry too much about it. You just want to avoid sa[FONT=&quot]ying anything that sounds like [FONT=&quot]i[FONT=&quot]t's coming from the driver.[/FONT][/FONT][/FONT][/FONT]
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Gmc_2

Yeah see what you mean. Cheers for your time.

eddy1

Hi Gmc
not an expert at all, however this looks fairly comprehensive, and covers all the main points
you need to take out reference to IAS,


however a little more information on;
where ticket obtained
why
ANPR or windscreen


may be wise to search forum for situations that are relevant to yours, whatever that is


good luck


eddy

Marktheshark

They will reject it anyway so don't worry.
They have yet a new strategy.

Gmc_2

and what is that?

Marktheshark

Its called not reading it, push one button, send a reject letter, await a POPLA appeal, Order POPLA to put the appeal on hold until they get the Beavis Judgment through.
Which shows they think they have it in the bag.

Coupon-mad

But POPLA appeals can still be won on other points even if Beavis goes the wrong way, of course.

Umkomaas

Just use the initial appeal from the NEWBIES FAQ sticky, 'as is'. Adding your 'story' will not help you, in fact, it will more likely cause you greater problems.

Unless you know precisely what you're doing, just follow forum advice, to the letter, which is more likely to provide you a positive outcome than any 'I know best' strategy.

Gmc_2

This arrived after their stipulated 14 days and no POPla code?

Dear Sir,

REJECTION OF INVALID INVOICE

With reference to your corrospondence in relation to the Parking Charge incurred on 21 March 2015 at 13:54, at Two Saints Retail Park car park.

Whilst the Cunsumer Contracts (Information, Cancellation & Additional Payments) Regulations 2013 apply to consumer contracts which were entered into after June 2013, this type of parking contract is excluded from the regulations due to the "automated commercial premises" exemption. As a result, the right to cancel the Parking Contract you entered into Two Saints Retail Park car park does not apply.

ParkingEye is a cap park management business contracted by the owners of private land to manage its usage in line with the landowners directions.

All invoices issued to ParkingEye in relation to any alleged loss, cost or payments sought in relation to payment, appeal or any other issue by motorist are catagorically rejected.

You have not formed a legally binding contract with ParkingEye, under which any right to invoice for payment for goods or services may arise; therefore as stated your invalid invoice is rejected.

Yours faithfully