Ticket from First Parking - Not within bay markings

BrokeStudent91

One last question.

On the POPLA appeal form, should I tick the box that says "I was not improperly parked"? I feel like not ticking it is almost an admission of guilt.

Redx

tick 3 from 4 (not the stolen one)

dont read too much into it, as even those appeal points are smoke and mirrors too (they dont give anyone the real points that are being used in appeals)

for example

not a gpeol would be a valid appeal point in most cases, so they dont include it - sneaky

bear in mind this is all weighted in favour of the PPC, not the motorist

BrokeStudent91

My appeal was allowed! Thanks to all those who helped, especially Redx. Here was the appeal I used in the end:

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
2) The signage was not seen before parking, so there was no valid contract formed between First Parking and the driver
3) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
4) There is no Commercial Justification for the PCN
5) First Parking's appeal system is biased and unfair
6) The Terms of Contract are unfair


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.

F1rst Parking cannot demonstrate any 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 F1rst Parking try to suggest a small initial loss this does not give them unconditional authority 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 not mentioned on the Notice to Keeper, so this cannot be ascertained) they certainly cannot claim the grossly 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 First Parking - 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 F1rst 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 F1rst 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 F1rst 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 F1rst Parking to strict proof otherwise. As well as a site map, they must also show photos as evidence. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. F1rst 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 (i - iv) may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4:
(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, and no mention of vehicle colour is made at all in the NTK.
(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 9(2)(c)).
(iv)It does not inform the keeper of any discount offered for prompt payment (as required by POFA 12 Schedule 4 Para 9(2)(g))

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 the PCN
In the rejection letter issued by F1rst 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 F1rst Parking', then I request that F1rst 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) F1rst 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 ever given. I put F1rst Parking to strict proof that such a warning was given either in writing or verbally (via CCTV evidence) to the driver of the vehicle in question. If evidence is not able to be provided then this seriously damages the credibility of F1rst 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 used 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 F1rst Parking on 07/04/2015, it is stated that "F1rst 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 can be clearly deduced from 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 F1rst Parking 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 F1rst Parking that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.

Yours Faithfully,
The Registered Keeper.

Herzlos

What was the POPLA adjudicators response?

BrokeStudent91

I did post it on the decisions thread but here it is:

Reasons for the Assessor’s Determination

It is the Operator’s case that their Terms and Conditions of parking (“the Terms”) were clearly displayed throughout the above named site. They submit the driver breached the Terms by failing to park within the markings of a bay and therefore the Appellant is liable to pay the parking charge issued.

The Appellant has made several submissions however for the purposes of this appeal it is only necessary to deal with one. This is the submission that the notice to keeper was not properly given and is not compliant with the provisions of the Protections of Freedoms Act 2012 (“POFA”).

I have not seen any evidence to suggest that the Appellant is correctly pursued as the driver of the vehicle as the Appellant has not been shown to have admitted he was the driver. Therefore, the Operator was required to establish ‘keeper’ liability under Schedule 4 of POFA in order to recover from the Appellant as the registered keeper of the vehicle.

The Operator has not provided any evidence to demonstrate that a notice to keeper was issued or that, if one was issued, it was compliant with POFA. Consequently, on the balance of probabilities, I find that the Operator did not comply with POFA and the Appellant is not liable to pay the parking charge.

Accordingly, I allow the appeal.

Ricky Powell Assessor

Paddyshepherd

Hi,

I received a similar NTK from ParkingCSL which again did not show a period of parking or detail of the reduced amount, it simply gave a date and mentioned that a lower amount had been offered. I appealed it as Registered Keeper on these points and also got a standard reply back, only with photos of my car added. Is it possible that these companies are part of the same business? I'm about to write my POPLA appeal but struggling with how to word it and what to include, so hopefully your posts will help, so thanks for that. I've posted full details of my situation in my thread on here.

HO87

Paddyshepherd wrote: »

Hi,

I received a similar NTK from ParkingCSL which again did not show a period of parking or detail of the reduced amount, it simply gave a date and mentioned that a lower amount had been offered. I appealed it as Registered Keeper on these points and also got a standard reply back, only with photos of my car added. Is it possible that these companies are part of the same business? I'm about to write my POPLA appeal but struggling with how to word it and what to include, so hopefully your posts will help, so thanks for that. I've posted full details of my situation in my thread on here.

No link between them I'm afraid. ParkingCSL - is one of the Debt Recovery Plus stable of companies (which includes Zenith Collections).

Don't worry too much about what to include in your appeal - follow some of the templates provided in the Newbies thread and once you have adapted it to your circumstances post it back for constructive criticism - making sure that you start your own thread.