JAS Evidence received - late

da0092

Apologies for jumping into posting before reading through the threads, I was only made aware of the letter from Wright Hassall today as I'm now living at a different address, and so felt in a rush to get something put together before the deadline!

After reading an article from the Parking Prankster and also a few threads on here, I've put together the following email. If anybody has the chance to have a scan over it and let me know if there are any omissions/gaps then I'd greatly appreciate it.



Dear Sir/Madam,

Car Park Operator: JAS Parking Solutions Ltd
Appellant : xx
Appeal Verification Code: xx
Parking Charge Notice Number: xx
Wright Hassall Reference : POPLA

Reference your letter dated 7th April 2016, I would ask that all original appeal points made by the appellant are considered, not just those pertaining to GPEOL. For reference, a copy of the original appeal has been attached to this email, and for completeness the main points that the appellant would like to be considered are as follows:

1. No contract from the landowner has been submitted, and the inclusion of a letter from the tenant forms no contract.

2. The pre-estimate of loss breakdown includes several items with are not losses, but are infact business costs, resulting in a gross over-inflation of the estimate, rendering it an unrecoverable penalty

3. No evidence has been submitted proving that the driver of the vehicle left the sight.

4. Photographic evidence submitted by operator shows that ‘contract’ should be void.


In addition to these points, I would also like to point out that the appellant received no evidence from the operator until a period of 51 days had elapsed after the appellant's own evidence had been submitted, as is pointed out in the original appeal document which is attached. As the appellant received no evidence from the operator until a significant time had passed after the expected original hearing date, 8th April 2015, it could therefore be concluded that either:

a. As the operator provided no evidence to the appellant that the alleged event occurred, or explained how a contact was formed, or if the charge is contractual, for breach of contract or trespass, or that the signage was adequate to form a contract by performance, or that in line with the Beavis judgment, the wording was clear and the charge brought prominently to the motorists notice, I submit there is no case to answer to. This would be in line with previous POPLA decisions where the operator submitted no evidence.

b. The operator was intentionally trying to prevent the appellant from rebutting their appeal points, in an attempt to sway the judgement in their favour.


In addition to these points, the appellant would like to point out that the operator has submitted no evidence to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th 2015 they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices'. It should be recognised that this case is entirely different from that of ParkingEye v Beavis, as this case does not relate to an overstay in a free carpark.


As previously stated, I ask that all of these points are included in your decision.

Regards,
xxxxxxx

da0092

After reading through more of the suggested threads, it appears it would be more sensible to remove any link to GPEOL from the appeal, and emphasise the other points from the original appeal.

I will therefore remove point 2 from the above, and embody all of the text for the other points into the email, and remove the attachment of my original appeal - as this contains GPEOL.

However, this is all a job for tomorrow me.

Coupon-mad

Actually I disagree, if JAS has argued GPEOL in the 'evidence pack' they have shot themselves in the foot and cannot recover this charge now - and I believe you should quote directly from their evidence pack and their words from 2015 and make that clear, like this, by quoting from the Beavis case:

https://forums.moneysavingexpert.com/discussion/comment/70486655#Comment_70486655


''LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees) found at 9 in ParkingEye Ltd v Beavis:

''The distinction between a clause providing for a genuine pre-estimate of damages and a penalty clause has remained fundamental to the modern law, as it is currently understood. The question whether a damages clause is a penalty falls to be decided as a matter of construction, therefore as at the time that it is agreed…This is because it depends on the character of the provision, not on the circumstances in which it falls to be enforced.''

And at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;''

In that judgment, at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

And at 97: ''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing ...''

Lord Mance at 191: '' ...(Schedule 4, paragraph 1). The reference to a relevant “obligation” does not exclude the penalty doctrine. On the contrary, if a charge stipulated contractually is a penalty, there will be no obligation.’’

Lord Hodge at 247: ‘’The focus on the disproportion between the specified sum and damage capable of pre-estimation makes sense in the context of a damages clause...''

So the fact that a PPC has argued 'GPEOL' was the basis for the construction of the charge in advance, over a year ago, means their case fails as a result of the Beavis case now. The charge remains disproportionate and as the rationale and construction of the charge was argued by JAS to be 'damages/GPEOL' (yet their calculations failed to show this) their charge is unenforceable when compared to the case law of ParkingEye v Beavis.

HTH

System

+1 on the GPOEL argument. You then top and tail it with, if in the alternative they are claiming "commercial justification" then they must show the occupier's rational they rely on, plus an unredacted contract which confirms this.

As a side note, JAS always had problems with their dates. Have you checked if they met the 56 days limit in POFA. If not add that in too.

da0092

Planning on sending this in the morning, if anybody has any last minute advice or would like to extract any elements for their own reply, both are very welcome. Thanks.



Dear Sir/Madam,

Reference your letter dated 7th April 2016, I am writing regarding POPLA appeal code xxx xxx xxxx. I, hereafter also referred to as the appellant, ask that all of the following points are considered in the appeal. The summary of my response is as follows:

1. No contract from the landowner has been submitted, and the inclusion of a letter from the tenant forms no contract.

2. JAS Parking Solutions Ltd has argued that a Genuine Pre Estimate Of Loss (GPEOL) was the basis for the construction of the charge in advance, which means their case now fails as a result of the Beavis case.

3. No evidence has been submitted proving that the driver of the vehicle left the sight.

4. Photographic evidence submitted by operator shows that ‘contract’ should be void.

5. JAS Parking Solutions Ltd intentionally withheld evidence from the appellant, in an attempt to deny the appellant a chance to challenge their points.


Details:

1. Contract from landowner

What was admitted in the evidence provided by the operator was that Staples is not the landowner. There is no copy of the contract from landowner to tenant to illustrate that even Staples has the authority to use JAS to issue tickets. Furthermore, the letter from Staples misses key information such as the date it is valid until.

To summarise: JAS has not even begun to demonstrate that it has standing to issue tickets at the site from where the ticket was issued. This is in clear violation of section 7 of the BPA code of practice. As I submitted in my original appeal in 2015, a statement like “we would assume that JAS Parking Solutions would seek legal action” does not convey the authority to do so. The BPA requires that “[the Operator has] the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary”. This transfer of authority is entirely missing from the contract, even if were not so redacted as to be useless as evidence.



2. Pre-estimate of loss

Quoting from the operators original evidence sent to POPLA in April 2015:

“We consider the amount on the Parking Charge Notice as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘penalty’ for a number of reasons. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs…”

And now to extract relevant quotes directly from the recent ParkingEve Ltd vs Beavis case, relating to the construction of such charges:

''LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees) found at 9 in ParkingEye Ltd v Beavis:
''The distinction between a clause providing for a genuine pre-estimate of damages and a penalty clause has remained fundamental to the modern law, as it is currently understood. The question whether a damages clause is a penalty falls to be decided as a matter of construction, therefore as at the time that it is agreed…This is because it depends on the character of the provision, not on the circumstances in which it falls to be enforced.''

And at 14: ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;''

In that judgment, at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

And at 97: ''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing ...''

Lord Mance at 191: '' ...(Schedule 4, paragraph 1). The reference to a relevant “obligation” does not exclude the penalty doctrine. On the contrary, if a charge stipulated contractually is a penalty, there will be no obligation.’’

Lord Hodge at 247: ‘’The focus on the disproportion between the specified sum and damage capable of pre-estimation makes sense in the context of a damages clause...''

To summarise: The fact that the operator has argued 'GPEOL' was the basis for the construction of the charge in advance, over a year ago, means their case fails as a result of the Beavis case now. The charge remains disproportionate and as the rationale and construction of the charge was argued by JAS to be 'damages/GPEOL' (yet their calculations failed to show this) their charge is unenforceable when compared to the case law of ParkingEye v Beavis.



3. Evidence of leaving site

As part of their original evidence, JAS Parking Solutions stated: “The driver was seen leaving the car park, this is a breach of the car parks terms and conditions. Please see attached witness statement”. However there was no such witness statement included in the evidence pack sent to the appellant (myself). Therefore, it is entirely unclear that that there was a contravention. There is no named witness or continuous video feed to act as any sort of corroboration for the allegation of breach of terms and conditions.

Furthermore, had there been a parking warden present to witness the driver leaving the site in question, then that warden would have had a duty of care to mitigate any purported losses by simply informing the driver at the time. By failing to do so, JAS have effectively admitted that they have failed to mitigate any potential loss.



4. Photographic evidence

The operator has submitted pictures of the car which is registered to me, in a car park with spaces to the left and right of it. All this would demonstrate is that the car was in the car park and that there was still parking availability, meaning the retailer (and thus its agent) could not possibly suffer loss by denial of parking resources.

Furthermore, the evidence shows that as the carpark is approached Houlton St, there is clear visible signage stating ‘Car Park’. It is not until a driver has turned into the site that the signage put in place by JAS Parking Solutions Ltd is visible and legible, meaning that drivers are in breach of the supposed ‘contract’ claimed by JAS before even being aware of it, which makes it nonsensical and therefore unenforceable, and should be void.



5. Evidence withheld by operator

Regarding the initial submission of evidence by the operator in 2015, the appellant would like to draw attention to quotes made by Henry Greenslade, a longstanding Lead Adjudicator of parking ticket appeals across the board, with high integrity and a fair reputation, from page 15 of the POPLA Annual Report 2015:

“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''

“…Operators should therefore ensure that their evidence is sent to POPLA and to the appellant in good time. Many operators now send their evidence to POPLA and the appellant simultaneously by email. This provides clear evidence as to the date it was sent, should any issue arise.

The appellant would like to draw your attention to the timing of the submission of evidence in 2015. The appellant’s original evidence was submitted to POPLA against the operator on 2nd March 2015, receiving confirmation of the appeal on 3rd March. The confirmation stated that the scheduled hearing date for the case was the 8th April 2015, and that any evidence submitted by the operator would be sent to the appellant.

After the 8th April, the appellant had received no evidence from the operator. On Thursday 16th April the appellant phoned POPLA to enquire about the situation, and to ask why no evidence had been received from the operator. The appellant was informed that the case was still ongoing, and that no action was required from them. On 17th April 2015, the appellant then received an evidence pack through the post from JAS Parking Solutions Ltd. This meant that a period of 51 days had elapsed between the appellant’s evidence being submitted to POPLA, and the evidence of the operator being received by the appellant. Therefore, it is clear that the operator intentionally waited until after the scheduled hearing date to send any evidence to the appellant, in an attempt to prevent a response to any of their evidence.

As can be seen from the scanned email included in the operator’s original evidence pack sent to POPLA in March 2015, the operator chose not to simultaneously send any evidence to the appellant by email, as Mr Greenslade suggested should happen for the sake of transparency and lack of doubt. It could therefore be concluded that the operator was intentionally trying to prevent the appellant from rebutting the points made in their evidence pack, in an attempt to sway the judgement in their favour. Such actions should reflect negatively on the operator, displaying their lack of integrity and respect for the appeals process established by POPLA.



Finally, I would like to point out that the operator has submitted no evidence to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th 2015 they tweeted that the judgment was taking in account use of this particular car park. It should therefore be recognised that this case is entirely different from that of ParkingEye v Beavis, and the onus should therefore be on the operator to prove otherwise.

It is asked that all of the aforementioned points are included in your decision.

Regards,
xxx

Coupon-mad

'Sight' should read 'site'.

da0092

Thank you. Sending today, will update as and when required.

da0092

I received an email from POPLA today, containing a letter from Wright Hassall informing me that my appeal has been rejected.

Can't really see what reasonable steps I can take from here, and so advice would be appreciated. By reasonable, I don't intend to take this to the supreme court of appeal.

Have others heard back from Wright Hassall and if so, what has the outcome been?



************************************************** *******

Dear Sir/Madam

Car Park Operator J.A.S. Parking Solutions Ltd also t/as J.A.S. Parking

Solutions

Appellant xxx xxxx
Appeal Verification Code (“the Appeal”) xxxxxxxxxx
Parking Charge Reference Number xxxxxxx
Wright Hassall Reference POPLA Appeal Outcome: Rejected

We have been appointed by the British Parking Association (“BPA”) to act as an independent appeals body, under the brand of Parking on Private Land Appeals (“POPLA”), in respect of the Appeal and to consider both the Appellants and the Car Park Operator’s positions before providing a decision to the parties. We are not instructed to act on behalf of either party.

We confirm that we have considered the appeal, taking into account all of the evidence at hand and applying the prevailing legislation and with reference to the BPA Code of Practice, and have decided to reject the Appeal on this occasion. To avoid further action, including Court action, the Appellant can make payment to the Car Park Operator in the next 28 days. The Parking Charge Notice (“PCN”) will not be cancelled.

Reasons for dismissing the Appeal

• The Appellant stated in the Appeal that the amount of the parking charge is unreasonable. Pursuant to the guidance set out in the Supreme Court’s decision in ParkingEye v Beavis and in accordance with the BPA Code of Practice, a reasonable charge would be £100.00. As the charge the Car Park Operator has imposed is equal to or less than £100.00, we have no option but to reject the Appeal.

• The Appellant has stated in the Appeal that the signage at the car park is not adequate and that they were unaware that they had entered into a contract by remaining at the location. Upon reviewing the evidence provided by both parties we contend that the signage is adequate and does comply with the BPA Code of Practice. Accordingly, the Appeal is rejected.

• The Appellant has requested evidence that the Car Park Operator has a legal right to manage the site. We are in receipt of sufficient evidence from the Car Park Operator to satisfy us that the Car Park Operator does have a legal right to manage parking at this location and to issue Parking Charge Notices. Accordingly, the Appeal is rejected.

• The Appellant has stated in the Appeal that the Car Park Operator has failed to prove that the Appellant left the site, in breach of the Terms and Conditions of the car park. We are receipt of sufficient evidence from the Car Park Operator in respect of this, namely a signed and dated witness statement confirming that the Appellant was seen parking their vehicle and leaving the site. Accordingly, the Appeal is rejected.

To the Appellant

To avoid further action, including Court action, the Appellant can make payment to the Car Park Operator in the next 28 days. The Parking Charge Notice will not be cancelled.

To the Car Park Operator

As the Appeal has been rejected, you must allow the Appellant 28 days to make payment. If payment is not forthcoming, you may take further action to recover the PCN.

This is the final decision in this Appeal. We are not able to respond to any future correspondence from either party, nor are we able to provide any information to either party over the telephone.

Yours faithfully

WRIGHT HASSALL LLP

Grimble

Well they have shot themselves in the foot as far as court goes as the witness should have mitigated any loss by informing you of terms and conditions.

Redx

just goes to show the BPA have employed the fox to run the henhouse , hence Nicola Mullaneys recent comments as detailed on pranksters website