Ticket from First Parking - Not within bay markings

BrokeStudent91

I got the rejection letter by email today.

Although it is true that I have never had a warning before, I have previously parked in the same spot without any kind of ticket. Would they be able to use this as evidence or would they actually need to have contacted me about it (which they haven't)?

BrokeStudent91

Also is there any argument I can actually make about signage? I don't recall the signs being particularly unclear (I didn't actually read the terms and conditions bit, just the price), but I can't visit the car park to check as I'm back home for Easter. I'm thinking perhaps I should leave that out as it doesn't strengthen my argument.

Redx

if you question the signage they have to prove its valid and meets the BPA CoP , same with any bay markings etc too

if you dont question the signage they dont have to prove anything

only a fool would not use this popla opportunity to question the signage and markings

its not about what you think, its about the signs complying to the BPA CoP (which they rarely do)

accept nothing , question everything , a basic premise for students I would have thought

this pcn is for this issue only, having previous does not enter into it and they cannot use this to retrospectively penalise you for any previous transgressions

you can get pictures for any rebuttal that you may make in several weeks time, just before the popla decision

now quit waffling on and sort out your draft, otherwise this will end up like war and peace

not a gpeol , signage , no contract, start with those and then look for anything else to be included, no matter what it is , make them prove their case on each and every point, using as many points as possible

BrokeStudent91

Ok I've used a template I found on the sticky thread and modified it to make it as relevant as possible to my situation:

Dear POPLA,
I am the registered keeper of the above vehicle and I am not liable for this PCN. I wish to appeal on the grounds outlined below:

1) The Charge is not a genuine pre-estimate of loss
First Parking’s charge represents liquidated damages for breach of contract, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable.
First Parking cannot demonstrate any initial loss caused by the parking event, because the vehicle was parked so as to not obstruct any single parking space or obstruct access for any vehicle. The photographs taken by the parking attendant and used as evidence confirm this to be the case. In addition to this, a valid ticket was purchased and clearly on display at the time that the charge was issued, so there was no loss of income from not purchasing appropriate parking time.
Even if First Parking try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so this cannot be confirmed) they certainly cannot claim the inflated amount of £80. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.

Further, if First Parking claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put First Parking to strict proof that a GPEOL was ever discussed and decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.

2) The signage was not seen before parking - so there was no valid contract formed between First Parking and the driver
A lack of signs at the entrance to a car park, and unclear wording, creates no contract. Since receiving the NTK, I have sought out and tried to read the signage on display at the car park in question. I found that it has a tiny font, and the sign is high up and not prominent, to the point where it is barely visible from inside a vehicle. I put First Parking to strict proof otherwise; as well as a site map they must show photos. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. First Parking's signs in 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 (Mandatory Entrance Signs) First Parking has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

3) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
The following points may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4 para 8:
(i) The 'period of parking' is not shown, only the date of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b));
(ii) It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 8(2)(c)) - some of the information given on the PCN is incorrect. On the PCN It is stated that the vehicle is green. It can clearly be seen from the photographic evidence supplied that the vehicle in question is black.
(iii) It specifies that there are unpaid parking charges due to “either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”, even though neither of these statements are true (in contravention of POFA 12 Schedule 4 para 8(2)(d));

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

4) No Commercial Justification for PCN
In the rejection letter issued by First Parking on 07/04/2015, it is stated that the PCN amount is based on commercial justification. The charge being claimed by First Parking is without commercial justification since the car park is a University car park and the majority of those parking in it are students at the University. Therefore, there are no commercial losses which can be attributed to a potential customer not being able to find a parking space. I would assert that those who are wishing to park have already paid the landowner in the form of tuition fees.

In this case, no parking space was taken and a valid ticket was purchased for the time that the vehicle was parked anyway, completely nullifying any argument for commercial justification.

5) Unfair appeal process
In the rejection letter issued by First Parking on 07/04/2015, it is stated that "A warning has previously been issued to you for the same offence". I contend that no such warning was given to the driver of this vehicle. I put First Parking to strict proof that such a warning was ever given either in writing or verbally. If this is not able to be provided then this seriously damages the credibility of First Parking and its representatives, and the use of such a blatant lie should be reported by POPLA to the BPA.

6) Unreasonable/Unfair Terms
I would assert that the amount being charged is punitive. 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.
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 for a company to attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. 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 and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event.

If this appeal is not successful then I hereby give notice to First Parking that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.

The bit about unfair appeal process doesn't really flow with the rest of it but I wanted to keep it in there... Any suggestions welcome, I'm an engineering student not a law student so I don't really do essays!

Herzlos

BrokeStudent91 wrote: »

Also is there any argument I can actually make about signage? I don't recall the signs being particularly unclear (I didn't actually read the terms and conditions bit, just the price), but I can't visit the car park to check as I'm back home for Easter. I'm thinking perhaps I should leave that out as it doesn't strengthen my argument.

The odds are the signage is inadequate, in either the wording or the size. The fact you couldn't read all of the terms and conditions on the move highlights that.

As said, make as many claims as you can and make them refute them rather than making it easy for them.

BrokeStudent91

To expand on the lack of commercial justification I have added another point:

In the rejection letter issued by First Parking on 07/04/2015, it is stated that the PCN amount is based on commercial justification. The charge being claimed by First Parking is without commercial justification since the car park is a University car park and the majority of those parking in it are students at the University. Therefore, there are no commercial losses which can be attributed to a potential customer not being able to find a parking space. I would assert that those who are wishing to park have already paid the landowner in the form of tuition fees.

In this case, no parking space was taken and a valid ticket was purchased for the time that the vehicle was parked anyway, completely nullifying any argument for commercial justification.

Redx

seems ok so far, keep going

as for signage, doesnt matter at the moment what it says or doesnt say, just use words that mean you believe it to be invalid or unclear or absent, making them prove the opposite

say its doesnt meet the BPA CoP , making them prove it does

the more you allege, the more they have to prove , so make the molehill into a mountain they have to climb !!

take the words in their reply and turn them into appeal points, using their words against them

make them turn the clay model of a car into a working prototype and prove it is aerodynamic and fuel efficient , by alleging it doesnt meet current standards

BrokeStudent91

Ok, so I've changed it around a little, added a few things, this is what I've come up with:

Dear POPLA,
I am the registered keeper of the above vehicle and I am not liable for this PCN. I wish to appeal on the grounds outlined in points 1 - 6, listed below:

1) The Charge is not a genuine pre-estimate of loss
First Parking’s charge represents liquidated damages for breach of contract, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable.

First Parking cannot demonstrate any initial loss caused by the parking event, because the vehicle was parked so as to not obstruct any single parking space or obstruct access for any vehicle. The photographs taken by the parking attendant and used as evidence confirm this to be the case. In addition to this, a valid ticket was purchased and clearly on display at the time that the charge was issued, so there was no loss of income from not purchasing appropriate parking time.

Even if First Parking try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so this cannot be confirmed) they certainly cannot claim the inflated amount of £80. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.

Further, if First Parking claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put First Parking to strict proof that a GPEOL was ever discussed and decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.

2) The signage was not seen before parking, so there was no valid contract formed between First Parking and the driver
I believe that there is a lack of adequate signage at the car park. The signs are too high up, are not prominently shown, and the terms and conditions are in far too small a font to reasonably be read from within a vehicle. I believe that these signs do not meet the BPA's code of practice. I put First Parking to strict proof otherwise. As well as a site map they must show photos. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. First Parking's signs in 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 (Mandatory Entrance Signs) First Parking has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

3) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
The following points may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4 para 8:
(i) The 'period of parking' is not shown, only the date of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b));
(ii) It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 8(2)(c)) - some of the information given on the PCN is incorrect. On the PCN It is stated that the vehicle is green. It can clearly be seen from the photographic evidence supplied that the vehicle in question is black.
(iii) It specifies that there are unpaid parking charges due to “either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”, even though neither of these statements are true (in contravention of POFA 12 Schedule 4 para 8(2)(d)).

The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.

4) There is no Commercial Justification for PCN
In the rejection letter issued by First Parking on 07/04/2015, it is stated that the PCN amount is based on commercial justification. The charge being claimed by First Parking is without commercial justification since the car park is a University car park and the majority of those parking in it are students at the University. Therefore, there are no commercial losses which can be attributed to a potential customer not being able to find a parking space. I would assert that those who are wishing to park have already paid the landowner in the form of tuition fees. If the charge is genuinely 'based on a pre-estimate of loss and calculated using company records as stated by First Parking', then I request that First Parking divulge these calculations.
Additionally, in this case, no parking space was taken and a valid ticket was purchased for the time that the vehicle was parked anyway, completely nullifying any possible argument for commercial justification.

5) First Parking's appeal system is biased and unfair
In the rejection letter issued by First Parking on 07/04/2015, it is stated that "A warning has previously been issued to you for the same offence". I contend that no such warning was given to the driver of this vehicle. I put First Parking to strict proof that such a warning was ever given either in writing or verbally (via CCTV evidence). If this is not able to be provided then this seriously damages the credibility of First Parking and its representatives, and the use of such a blatant lie should be reported by POPLA to the BPA. I believe that this will show that the wording in the appeal rejection is not actually based on any real review of evidence, but is in fact a standard reply to all parking appeals, and as such is simply an attempt to maximise profit without regard to fair process.

6) The Terms of Contract are unfair
In the rejection letter issued by First Parking on 07/04/2015, it is stated that "First Parking have also ensured that their parking charge amount is not punitive". I would assert that this is a lie and the amount being charged is absolutely punitive, as I have stated in points 1 and 4 above. 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.
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 for a company to attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. 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 and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event.

If this appeal is not successful then I hereby give notice to First Parking that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.

Yours Faithfully,
The Registered Keeper.

Should I send that off or is there anything else I should change/add?

Redx

seems ok

BUT

I would add a small bullet point menu just after the first paragraph and before point 1)

add the menu with the 6 headers so the assessor can clearly see the points you are making before he or she wades into the appeal

I would also add a point about no contract (as I said earlier) , meaning make the PPC show a proper contract with the landowner that gives them the legal right to levy charges or issue these invoices

otherwise it seems fine on a skim read, very good in fact, considering you are not a law student (neither am I) , so goes to show what trying to save 20 hours minimum net wage can achieve

BrokeStudent91

Good idea! I'll sleep on it and give it a thorough read through tomorrow morning before I send it off, and I'll let you all know the outcome!