Appeal for help with the appeal!

Lools

Hi, newbie to the forum, but have been pointed in this direction for sound advice re: parking notice problem that is making me feel very wibbly!

Long and short of it is that I parked in a private carpark in Swansea (Oystermouth Square) - machines were displaying an error message 'trying to connect please wait' - I hung around for several minutes along with several others, but the machines continued to display the message. I took a photo of the machine on my phone, went for a walk, cam back to a parking notice from Local Parking Security Ltd.

As soon as I got home I emailed the address on the back of the notice, basically explaining what had happened / attached photo / offered to pay for the time I used the carpark (I can hear you all shouting at me at this point - but with no knowledge of parking notices I thought I would be dealing with reasonable people at this point!)

They responded to say, more or less, get lost - you didn't display a ticket - pay us £50, or £85 after 14 days. £85!!!!

It appears I have just read the 'newbies' sticky (too late!) and realised I've already made the fatal error of admitting to being the driver in my first 'appeal' to the company, plus I responded straight away to the initial ticket instead of waiting for a reminder through the post. Is there a way back from this, and could I kindly ask for your advice in handling the POPLA appeal?

Thanks in advance!

Umkomaas

Do you have a POPLA code from LPS?

Lools

Yes, they sent me a code in the reply.

Guys_Dad

Ok, then crib from one of the template appeals concentrating on the GPEOL, contract, lack of authority points and not the very fair mitigation that they have already turned down. And read the POPLA DECISIONS sticky as well (latest first).

POPLA don't do mitigation.

Umkomaas

Lools wrote: »

Yes, they sent me a code in the reply.

OK - thanks for confirmation.

First job - check it's legit and what expiry date it has, using this link.

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

Then, if OK, read through the NEWBIES sticky, post #3 'How to win at POPLA' blue hyperlink and look for some examples that closely match (you won't find a perfect match, so don't go seeking utopia).

Start drafting up your own and post it up here for an overview. As a minimum your appeal should cover the following:

1. No genuine pre-estimate of loss (GPEOL)
2. Signage
3. No Contract with landowner to pursue charges in their own name at court
4. No proprietary interest in the land
5. Unlawful Penalty Charge

You'll need to leave out any references to keeper liability as that ship has sailed once the driver was outed.

HTH

Lools

That's massively helpful - thank you both for taking the time to reply. I will have a look this evening and start drafting my appeal. I'll keep you updated! Thanks again, Lools.

Lools

Ok, have drafted a POPLA appeal using the templates - would someone be so kind as to cast their eye over it. Any pointers welcome! Thanks in advance.

I am the registered keeper of the above vehicle, and write to refute a parking charge notice issued by Local Parking Security Ltd. On the 1st April 2015 at the Oystermouth Square carpark, the Mumbles, Swansea. I submit to you information in points 1-6 that demonstrate that I am not liable for the parking charge:

1. Reasonable mitigating circumstances
The Oystermouth Square car park is a Pay and Display car park. On the aforementioned date, at around 2.25pm both Pay and Display machines were displaying the message ‘trying to connect please wait’. Having waited for several minutes, it was clear that the machines were offline, and thus Local Parking Security Ltd. (hereafter referred to as LPS) did not comply with their own conditions for parking (i.e. enabling a patron to purchase a ticket from the machines provided to be displayed in the parking vehicle). The LPS were contacted by email as per instruction on the back of the parking ticket, on the same day as the PCN was issued and as soon as was practically possible. The situation / events were clearly detailed, photographic evidence supplied along with an offer to pay the parking charge for the total of the three hours that the vehicle was parked at the usual car park tariff of £3 for 3 hours. This judicious offer of payment and reasonable mitigation was subsequently denied by LPS, who are resolute in obtaining a parking charge of £50, elevated to £85 after 14 days, for the reason of: ‘parking without a valid ticket’. I am therefore being penalised for breaching terms that, at that particular time, were impossible to comply with.

2. No genuine pre-estimate of loss (GPEOL)
Given that the reasonable offer to pay a parking fee of £3 for the total time of three hours parked was turned down, I therefore assert that there is no genuine loss being pursued, since an acceptance of this sum would easily cover any reasonable initial loss that the parking event could possibly have produced. The entire parking charge must, in accordance with the BPAs Code of Practice, be a genuine pre-estimate of loss in order to be enforceable under contract law, and therefore the inflated amount of £50, rising to £85 after a fourteen day period, is not a sum that might reasonably flow directly as a result of the parking event. Had the operator indeed accepted the offered amount, it would have been in exactly the same position in terms of business/staff/salary overheads as it would have been had there been no breach at all. Indeed, the only recoverable sum under the POFA 2012 is the sum of the ‘outstanding’ parking charge quoted above. Any additional fabricated costs cannot be applied to ‘top up’ the costs so that it matches the inflated PCN sum. The GPEOL calculation cannot include any tax deductible business costs such as administration, accounting, equipment or any other normal operational costs that do not flow directly from this particular ‘contravention’. As the Office of Fair Trading state: ‘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’.
I therefore require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Please note that the charges by the operator as ‘genuine loss’ are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

3. No Contract with landowner to pursue charges in their own name at court
I add to my case the point of fact that LPS has no title in the land of Oystermouth Square, and no BPA compliant landowner contract assigning rights to pursue charges in their own name at court, or to allege trespass or loss if this forms the basis of their charge. I contend that LPS merely hold a bare licence to supply and maintain (non-compliant) signs and to post PCN as a deterrent.

I require LPS to provide proof of an unredacted, unambiguously-worded contract with the landowner that specifically states that LPS possesses authority to make contracts with the drivers themselves, and that gives them complete authority to pursue charges in their own name, in compliance with paragraph 7 of the BPA Code of Practice. Let it be known that a witness statement or documentation of ‘agreement’ to that effect will not be sufficient to show any legal right to pursue charges or provide any rights to litigation.

4. No proprietary interest in the land
As stated above, to the best of my knowledge, LPS have no legal possession of the land that constitutes Oystermouth Square carpark. Their lack of title means they have no authority to issue legally enforceable parking notices. This being the case, the burden of proof shifts to LPS to demonstrate that they are not in breach of section 7.1 of the BPA code.


5. Unclear and non-complaint signage
It must be noted that the charges issued by third party, LPS, are both non-negotiated and imposed upon legitimate motorists who are not parties of equal bargaining power, or even aware that any ‘contract’ is possible. All terms are required to be both prominent and transparent to be both seen and accepted by the driver.

I maintain that the signage of the Oystermouth Square car park displaying core parking terms are non-compliant in their positioning, clarity and wording.
It must be noted that there are no obvious signs at the carpark entrance to indicate that the car park is indeed pay and display, aside from a small notice attached to a knee height crash barrier as you turn in to the carpark, which contravenes Appendix B of the BPA CoP which states that the terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead.

Owing to the unusual shape of the carpark, it is also not possible to see the signs from all angles (see photographs attached), and as such the terms cannot be imported into a contract since they are not so clearly and prominently displayed that ‘the customer is bound by those terms as long as they are sufficiently brought to his notice beforehand’ (Lord Denning, Thornton v Shoe Lane Parking Ltd. [1971] 2 QB 163, Court of Appeal).

Furthermore, I contend that the signs in the car park fail to suitably inform/warn the driver of the core parking terms and consequences for any breach, and neither are the onerous charges prominent and legible enough so that a binding contract can be entered into between driver and operator, where the requirements of consideration, offer, acceptance, fairness and transparency of terms offered in good faith, can indeed be met.

Coupled with the lack of clear, readable and comprehensible entrance signage, that the carpark itself is untarmacked, potholed with a generally coarse surface with broken tarmac, loose surface stones / rubble and with no bay markings, the piece of land itself lends no indication that it is indeed an official, managed car park and not just a scrap of wasteland.

6. Unfair Terms
Lastly, it should be noted that the charge issued, based on terms that the Operator allege to be contractually binding, are, in fact, unreasonable, having not been previously negotiated and caused a significant imbalance to potential detriment. The charge is therefore an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Furthermore, the charge contravenes the Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair:

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.’
5(1) ‘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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.'

Please also note, from Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a 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.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above places the PCN issued by LPS firmly within the boundaries of the definition of ‘unfair financial burden’. Designed, perhaps, as a deterrent, the notices issued by LPS are nothing short of a disguised penalty, where the ludicrous sum of £50, rising £85 after 14 days is an unfair term based on its entirely disproportionate magnitude with respect to the alleged infringement of parking without purchasing a ticket from an out of order machine, with the immediate offer of remuneration for the three hours parked, where no damage or loss was incurred by the landowner, who, in this instance, is not LPS.
If LPS maintain that the parking charge in not punitive, I require a breakdown of the pre-estimate of the loss suffered by the operator to be provided, along with explanation of how it is possible for a blanket charge of £50, rising to £85, be applied no matter the breach or length of time that the breach occurred for (be it 3 minutes, 3 hours or 3 days!). I allege that the charge issued by Local Parking Security is disproportionate to the cost of parking, and that it is, in fact, being enforced as a contractual charge (as opposed to damage or loss).

In summary, on the above points I declare that the punitive charge issued by Local Parking Security Ltd. is both unfair and illegal, and respectfully request the appeal be upheld by POPLA and all charges rescinded.

Coupon-mad

I would not call any appeal point 'Reasonable mitigating circumstances'. I would say 'The P&D machines were all broken that day, see attached proof in the form of a photo taken at the time, all were buffering. Therefore any contract was frustrated by this systems error which was not within my control, so the other party cannot lawfully charge me for their own systems failure...blah blah.

And maybe head that bit up 'Frustration of contract by virtue of failure of payment machines to take money.' Or something like that.

Lools

Thanks for taking the time to read and reply - will make some adjustments. I am so frustrated by having to deal with all of this though - who the hell do some of these companies think they are?!:mad:

pjn100

Struggling with the same lot in Oystermouth car park. Any updates?

Ralph-y

It was April that the OP last posted , so don't hold your breath for a reply

read the newbie thread and then start a new thread if you need

https://forums.moneysavingexpert.com/discussion/4816822

Ralph:cool: