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UKPC - Their evidence for GPEOL at POPLA
prjohnsonnn10
Posts: 100 Forumite
A very interesting doc from UK PC....received this today in respect of my POPLA appeal which has been submitted a while back and they are now submitting htis as 'further evidence'..... i was expecting the latest Beavis case to be referenced but instead its a latest re hash of the lengthy blurb aimed at POPLA assesors i think.
Can someone have a read through it and highlight for me any total bloopers on their part that i can shoot down in my response?. My original full popla appeal is in already and as per my previous wins i have covered off a), GPEOL, b) inadequate signage and c) no authority to enforce on the land in question.
Interestingly UKPC here in the last paragraph state that they have 'attached evidence ' to support the fact that they can enforce on this site ...but in fact they have NOT. I have requested full sight of the relevant documentation and they have not provided it at all.
so any input here gratefully received please.
UK Parking Control -28/04/2015
POPLA Ref xxxxxx
Parking Charge Ref xxxx
VRM xxxxxxxx
Site name xxxxy
Contravention Date/Time 20/03/2015 20:49:10
Lower Charge Rate £60.00
Contravention Parked in a permit area without displaying a valid permit.
On 20/03/2015 our warden issued a parking charge to vehicle registration xxxxxx at xxxxxxxx . The
parking charge was issued because the vehicle was parked in a permit space without displaying a valid
permit.
The Parking Charge amount was £100, reduced to £60 if payment was received within 14 days.
An appeal was received from Mr xxxxxx on 21/03/2015, to which the appeals department investigated and
decided to reject.
The basis of the POPLA appeal is threefold and is addressed below.
1)
It is confidently argued that the parking charge in question should be fully enforced by the independent
appeals service. UK Parking Control Ltd (UKPC) is entitled by common law to be fully compensated for the
genuine pre-estimate of loss stemming from the appellant’s breach of contract.
It will come as no surprise to read that the burden of proving that a clause is a penalty clause, not representing
a genuine pre-estimate of loss, lies upon the person who seeks to escape liability under it (Robophone Facilities
Ltd v Blank [1966] 1 WLR 1428, 1446, per Diplock LJ). This sound interpretation of the law has also been endorsed
by both Professor Richard Hooley of Cambridge University and Allen and Overy LLP (2008).
Nevertheless, in order to assist POPLA in resolving this dispute as effectively as possible, UK Parking Control Ltd
has provided a redacted breakdown of the greatest potential loss stemming from the breach of contract.
Since the breached clause provides for liquidated damages, the specific loss caused to UK Parking Control Ltd
for this particular breach is not at issue. Lord Dunedin in Dunlop Pneumatic Tyre Company Co Ltd v New
Garage & Motor Co Ltd [1915] AC 79 explains that quantifying the loss from a single breach in such cases as
these would be ‘impracticable’ and that it would be ‘quite reasonable’ to estimate damage from a single
breach at a single figure. The greatest potential loss for a breach has been provided, since it is certain that
whether liquidated damages represent a penalty or compensation should be assessed in relation to whether
the sum is ‘extravagent and unconscionable by comparison with the greatest loss that could be proved’
(emphasis added) (Clydebank Engineering and Shipbuilding Co Ltd v Don Jose Romas Yzquierdo y Castenda
[1905] AC 6, per Lord Davey and Parking Eye Ltd v Beavis and Wardley [2014] 3JD05152-69, per HHJ Moloney
QC).
It is hoped that the Assessor can appreciate that the provision of a full breakdown would highly prejudice the
commercial interests of UK Parking Control Ltd. However, the redacted version’s heads of costs mirror those
recommended by Mr Recorder Lowe QC in James Paul Mayhook v National Car Parks [2012] 1CM00569, para
66. Further, the full version of the breakdown has been reviewed and commended by Steve Clark (Head of
Operational Services for the British Parking Association) and our lawyers. It is also strongly doubted that a full
breakdown would assist the Assessor any more than the redacted version, since POPLA is understandably illequipped
to cast judgement on each specific cost involved in effective parking management by hundreds of
British Parking Association members.
As aforementioned, the heads of costs chosen in the provided breakdown have been judicially endorsed. The
site-based costs include (but are not limited to) the cost of producing the charge itself with accompanying
weatherproof wallet, which directly relates to the breach. The costs involved in validating the parking charge
include checking that the registration plate matches the vehicle in question, which directly relates to the breach.
The appeals’ costs would obviously not be incurred but for the breach. These costs include the telephone costs
of the call centre, employee costs to review the appeal and legal fees. POPLA costs are also directly attributable
to the breach. They include the preparation of evidence packs, which are completed by employees of different
pay grades and takes time to complete. Payment costs include the bank and employee costs involved in
processing the payment of parking charges issued for breaches. In line with the Protection of Freedoms Act
2012, DVLA costs include requesting from the DVLA the Registered Keeper details of the relevant vehicle, which
was parked in breach of contract. Written communication costs include the cost to produce and send initial
notices to the Driver/Registered Keeper and final notices, which are required to follow up on payments of
charges. If charges remain unpaid, a debt recovery company will be employed to obtain compensation for the
breach on our behalf. Costs involved under this head include employing the debt recovery company’s services
and preparing sufficient information to allow the external company to pursue the debt. Legal action costs
include the cost of preparing cases to take a number of people to court per year. UKPC has started taking more
people to court and anticipate we will continue to take more in the future. As a result, we have sat down with
our lawyers and advisors to try and estimate the likely costs involved in doing so.
It should be noted that for relevant costs an aggregate has been calculated and an average applied, where
costs differ depending on the breach in question. This is well-established practice when calculating certain
costs in determining liquidated damages for breaches. Largest Conceivable Loss is not factored down to take
account of the likeliness that each individual event will occur. It is nevertheless included to heed Lord Davey’s
emphasis on making a comparison between the charge and ‘the greatest loss that could be proved’ (emphasis
added) (Clydebank Engineering and Shipbuilding Co Ltd v Don Jose Romas Yzquierdo y Castenda [1905] AC 6,
per Lord Davey and Parking Eye Ltd v Beavis and Wardley [2014] 3JD05152-69, per HHJ Moloney QC). Factored
Loss is, however, factored to take into account the likelihood of each event occurring. Grand Total of costs has
been split into two subtotals to reflect the typical costs incurred by UKPC when payment of the charge is made
within 14 days of issuance and when payment is made afterwards. As a result, Subtotal 1 reflects the typical
costs incurred for charges which are paid at the discounted rate for early payment, whereas Subtotal 2 reflects
the typical late payment costs.
Many costs, however, have not been included. Court costs would likely be sought to be recovered at court,
which is why it has been omitted under legal action costs. Though it could be argued that including the
following costs is commercially justified, we have taken the view not to, since these costs are incurred
independently of breaches occurring: head office rent rates, wages of employees not directly dealing with
parking enforcement, signage on site, warden training, hiring costs, company insurance, membership to the
ATA, installation of ANPR equipment, installation of pay and display equipment, warning flyers, iWarden
software, employee uniform and employing area managers.
The predominant purpose of this charge is to compensate UK Parking Control Ltd for the predetermined loss
caused by the breach of contract. The provided breakdown of costs firmly evidences this notion. Another major
purpose is to ensure the effective management of parking areas by the operator. It is superfluous to say that
another effect of the charge is to deter parties from breaching the contract. Potentially having to compensate
another for breach of contract would naturally create some deterrent effect.
However, to say that deterrence is the predominant purpose of the charge would be wholly unfounded. Even if
this unsubstantiated assertion were to be entertained, high judicial authority has stated that even this does not
preclude the charge being enforceable. In the recent Court of Appeal case of Talel el Makdessi v Cavendish
Square Holdings [2013] EWCA Civ 1539, Clarke LJ says that despite the predominant purpose of a charge being
to deter, a clause can still be upheld if there is a ‘commercial justification’ for it. Further support for this
approach can be found in the combined wisdom of the EU and Parliament in the Unfair Terms Regulations
1999, which effectively strike a balance between the commercial interests of the receiving party and the fairness
towards the paying party.
The clause in question is unambiguously commercially justified. As aforementioned the charge represents a
genuine pre-estimate of loss and is compensatory in nature. It is also agreed with HHJ Moloney QC that the
supply of parking is a ‘limited and valuable commodity’, thus commercially justified for a clause to deter parties
from breaching the contract. It is further agreed that, in the present context, the deterrence factor is thus an
‘entirely legitimate and acceptable one’, where ‘ordinary principles of compensation for breach have no
application’ Specifically, HHJ Moloney QC was minded to look at the profit margin of Parking Eye Ltd when
deciding the commercial justification of the clause. Though UK Parking Control Ltd will not release its profit
margins for reasons of commercial sensitivity, comparing its figures with that of those revealed by Parking Eye
Ltd, it is certain that the judiciary would accept the level of profitability the company maintains (Parking Eye Ltd v
Beavis and Wardley [2014] 3JD05152-69).
UK Parking Control Ltd urges the Assessor to find in its favour for the solid reasoning which has been provided.
Considering the detailed and thorough response provided by UKPC, it would be appreciated that any finding
against UKPC is accompanied by detailed and thorough reasoning for making such an adverse finding,
supported by judicial authority.
2)
We have attached evidence that we are authorised to enforce parking regulations at the site in question.
3)
Our photographic evidence clearly indicates that the vehicle was parked directly next to a sign. All of our
signage is fully compliant with the BPA Code of Practice.
There are sufficient signs warning drivers that should they choose to park without displaying a valid permit they
may become liable to receive a Parking Charge. Mr xxxxxxx vehicle was parked without displaying a valid
permit and consequently the Parking Charge was issued.
A letter was sent to Mr xxxxxxx informing them of our decision on 23/02/2015.
Can someone have a read through it and highlight for me any total bloopers on their part that i can shoot down in my response?. My original full popla appeal is in already and as per my previous wins i have covered off a), GPEOL, b) inadequate signage and c) no authority to enforce on the land in question.
Interestingly UKPC here in the last paragraph state that they have 'attached evidence ' to support the fact that they can enforce on this site ...but in fact they have NOT. I have requested full sight of the relevant documentation and they have not provided it at all.
so any input here gratefully received please.
UK Parking Control -28/04/2015
POPLA Ref xxxxxx
Parking Charge Ref xxxx
VRM xxxxxxxx
Site name xxxxy
Contravention Date/Time 20/03/2015 20:49:10
Lower Charge Rate £60.00
Contravention Parked in a permit area without displaying a valid permit.
On 20/03/2015 our warden issued a parking charge to vehicle registration xxxxxx at xxxxxxxx . The
parking charge was issued because the vehicle was parked in a permit space without displaying a valid
permit.
The Parking Charge amount was £100, reduced to £60 if payment was received within 14 days.
An appeal was received from Mr xxxxxx on 21/03/2015, to which the appeals department investigated and
decided to reject.
The basis of the POPLA appeal is threefold and is addressed below.
1)
It is confidently argued that the parking charge in question should be fully enforced by the independent
appeals service. UK Parking Control Ltd (UKPC) is entitled by common law to be fully compensated for the
genuine pre-estimate of loss stemming from the appellant’s breach of contract.
It will come as no surprise to read that the burden of proving that a clause is a penalty clause, not representing
a genuine pre-estimate of loss, lies upon the person who seeks to escape liability under it (Robophone Facilities
Ltd v Blank [1966] 1 WLR 1428, 1446, per Diplock LJ). This sound interpretation of the law has also been endorsed
by both Professor Richard Hooley of Cambridge University and Allen and Overy LLP (2008).
Nevertheless, in order to assist POPLA in resolving this dispute as effectively as possible, UK Parking Control Ltd
has provided a redacted breakdown of the greatest potential loss stemming from the breach of contract.
Since the breached clause provides for liquidated damages, the specific loss caused to UK Parking Control Ltd
for this particular breach is not at issue. Lord Dunedin in Dunlop Pneumatic Tyre Company Co Ltd v New
Garage & Motor Co Ltd [1915] AC 79 explains that quantifying the loss from a single breach in such cases as
these would be ‘impracticable’ and that it would be ‘quite reasonable’ to estimate damage from a single
breach at a single figure. The greatest potential loss for a breach has been provided, since it is certain that
whether liquidated damages represent a penalty or compensation should be assessed in relation to whether
the sum is ‘extravagent and unconscionable by comparison with the greatest loss that could be proved’
(emphasis added) (Clydebank Engineering and Shipbuilding Co Ltd v Don Jose Romas Yzquierdo y Castenda
[1905] AC 6, per Lord Davey and Parking Eye Ltd v Beavis and Wardley [2014] 3JD05152-69, per HHJ Moloney
QC).
It is hoped that the Assessor can appreciate that the provision of a full breakdown would highly prejudice the
commercial interests of UK Parking Control Ltd. However, the redacted version’s heads of costs mirror those
recommended by Mr Recorder Lowe QC in James Paul Mayhook v National Car Parks [2012] 1CM00569, para
66. Further, the full version of the breakdown has been reviewed and commended by Steve Clark (Head of
Operational Services for the British Parking Association) and our lawyers. It is also strongly doubted that a full
breakdown would assist the Assessor any more than the redacted version, since POPLA is understandably illequipped
to cast judgement on each specific cost involved in effective parking management by hundreds of
British Parking Association members.
As aforementioned, the heads of costs chosen in the provided breakdown have been judicially endorsed. The
site-based costs include (but are not limited to) the cost of producing the charge itself with accompanying
weatherproof wallet, which directly relates to the breach. The costs involved in validating the parking charge
include checking that the registration plate matches the vehicle in question, which directly relates to the breach.
The appeals’ costs would obviously not be incurred but for the breach. These costs include the telephone costs
of the call centre, employee costs to review the appeal and legal fees. POPLA costs are also directly attributable
to the breach. They include the preparation of evidence packs, which are completed by employees of different
pay grades and takes time to complete. Payment costs include the bank and employee costs involved in
processing the payment of parking charges issued for breaches. In line with the Protection of Freedoms Act
2012, DVLA costs include requesting from the DVLA the Registered Keeper details of the relevant vehicle, which
was parked in breach of contract. Written communication costs include the cost to produce and send initial
notices to the Driver/Registered Keeper and final notices, which are required to follow up on payments of
charges. If charges remain unpaid, a debt recovery company will be employed to obtain compensation for the
breach on our behalf. Costs involved under this head include employing the debt recovery company’s services
and preparing sufficient information to allow the external company to pursue the debt. Legal action costs
include the cost of preparing cases to take a number of people to court per year. UKPC has started taking more
people to court and anticipate we will continue to take more in the future. As a result, we have sat down with
our lawyers and advisors to try and estimate the likely costs involved in doing so.
It should be noted that for relevant costs an aggregate has been calculated and an average applied, where
costs differ depending on the breach in question. This is well-established practice when calculating certain
costs in determining liquidated damages for breaches. Largest Conceivable Loss is not factored down to take
account of the likeliness that each individual event will occur. It is nevertheless included to heed Lord Davey’s
emphasis on making a comparison between the charge and ‘the greatest loss that could be proved’ (emphasis
added) (Clydebank Engineering and Shipbuilding Co Ltd v Don Jose Romas Yzquierdo y Castenda [1905] AC 6,
per Lord Davey and Parking Eye Ltd v Beavis and Wardley [2014] 3JD05152-69, per HHJ Moloney QC). Factored
Loss is, however, factored to take into account the likelihood of each event occurring. Grand Total of costs has
been split into two subtotals to reflect the typical costs incurred by UKPC when payment of the charge is made
within 14 days of issuance and when payment is made afterwards. As a result, Subtotal 1 reflects the typical
costs incurred for charges which are paid at the discounted rate for early payment, whereas Subtotal 2 reflects
the typical late payment costs.
Many costs, however, have not been included. Court costs would likely be sought to be recovered at court,
which is why it has been omitted under legal action costs. Though it could be argued that including the
following costs is commercially justified, we have taken the view not to, since these costs are incurred
independently of breaches occurring: head office rent rates, wages of employees not directly dealing with
parking enforcement, signage on site, warden training, hiring costs, company insurance, membership to the
ATA, installation of ANPR equipment, installation of pay and display equipment, warning flyers, iWarden
software, employee uniform and employing area managers.
The predominant purpose of this charge is to compensate UK Parking Control Ltd for the predetermined loss
caused by the breach of contract. The provided breakdown of costs firmly evidences this notion. Another major
purpose is to ensure the effective management of parking areas by the operator. It is superfluous to say that
another effect of the charge is to deter parties from breaching the contract. Potentially having to compensate
another for breach of contract would naturally create some deterrent effect.
However, to say that deterrence is the predominant purpose of the charge would be wholly unfounded. Even if
this unsubstantiated assertion were to be entertained, high judicial authority has stated that even this does not
preclude the charge being enforceable. In the recent Court of Appeal case of Talel el Makdessi v Cavendish
Square Holdings [2013] EWCA Civ 1539, Clarke LJ says that despite the predominant purpose of a charge being
to deter, a clause can still be upheld if there is a ‘commercial justification’ for it. Further support for this
approach can be found in the combined wisdom of the EU and Parliament in the Unfair Terms Regulations
1999, which effectively strike a balance between the commercial interests of the receiving party and the fairness
towards the paying party.
The clause in question is unambiguously commercially justified. As aforementioned the charge represents a
genuine pre-estimate of loss and is compensatory in nature. It is also agreed with HHJ Moloney QC that the
supply of parking is a ‘limited and valuable commodity’, thus commercially justified for a clause to deter parties
from breaching the contract. It is further agreed that, in the present context, the deterrence factor is thus an
‘entirely legitimate and acceptable one’, where ‘ordinary principles of compensation for breach have no
application’ Specifically, HHJ Moloney QC was minded to look at the profit margin of Parking Eye Ltd when
deciding the commercial justification of the clause. Though UK Parking Control Ltd will not release its profit
margins for reasons of commercial sensitivity, comparing its figures with that of those revealed by Parking Eye
Ltd, it is certain that the judiciary would accept the level of profitability the company maintains (Parking Eye Ltd v
Beavis and Wardley [2014] 3JD05152-69).
UK Parking Control Ltd urges the Assessor to find in its favour for the solid reasoning which has been provided.
Considering the detailed and thorough response provided by UKPC, it would be appreciated that any finding
against UKPC is accompanied by detailed and thorough reasoning for making such an adverse finding,
supported by judicial authority.
2)
We have attached evidence that we are authorised to enforce parking regulations at the site in question.
3)
Our photographic evidence clearly indicates that the vehicle was parked directly next to a sign. All of our
signage is fully compliant with the BPA Code of Practice.
There are sufficient signs warning drivers that should they choose to park without displaying a valid permit they
may become liable to receive a Parking Charge. Mr xxxxxxx vehicle was parked without displaying a valid
permit and consequently the Parking Charge was issued.
A letter was sent to Mr xxxxxxx informing them of our decision on 23/02/2015.
0
Comments
-
Have a look at https://forums.moneysavingexpert.com/discussion/5229452
Where/how were you parked for the charge to be issued?0 -
I have not read I, (just a quick skim), but it seems a case of !!!!!!!! baffles brains. I think that we should all get together to see if we can pour cold water on it. It Popla throw it out they will be unlikely to use it again
They quote Takel el Makdessi v Cavandish, a case involving £millions. I cannot see how it relates to a parking ticket, I do not know what a County Court Judge would make of it.
http://www.blackstonechambers.com/news/cases/talal_el_makdessi_v.html
They aslo quote Mayhook v NCP. Why, AIUI, NCP Lost heavily? I hope, if they are relying on these cases, they will produce transcripts.
They also quote PE v Beavis and Wardley and PE v Beavis 2-3 times without mention of appeal to Supreme court.
I am not qualified to venture an opinion on the legal arguments, have they overegged the pudding?You never know how far you can go until you go too far.0 -
The paragraph they've quoted in relation to the Robophone v Blank case isn't actually from that case. UKPC seem to think it is/suggest that it is, but it's actually a plagiarised segment from the mentioned professor's lecture notes where he has referred to the case and not quoted it. The notes themselves state they shouldn't be relied on as legal advice, which doesn't suggest he's endorsed it, Allen & Overy haven't endorsed it but rather the notes were produced for their seminars.
UKPC seem to latch on to anything legal that looks good for them. As for "recommendations" (particularly laughable in Mayhook v NCP) or "endorsements", these don't have fact of law and aren't first hand meaning UKPC could spout anything they want. Next thing they'll have their grannies telling POPLA that they are good boys and girls and deserve the money!0 -
Perhaps, in view of the complexity of the evidence the OP could ask for a postponement, perhaps until the Supreme Court decides.You never know how far you can go until you go too far.0
-
Have they have provided a signed witness statement from Steve Clark to support this assertion?prjohnsonnn10 wrote: »66. Further, the full version of the breakdown has been reviewed and commended by Steve Clark (Head of Operational Services for the British Parking Association)0 -
The paragraph they've quoted in relation to the Robophone v Blank case isn't actually from that case. UKPC seem to think it is/suggest that it is, but it's actually a plagiarised segment from the mentioned professor's lecture notes where he has referred to the case and not quoted it. The notes themselves state they shouldn't be relied on as legal advice, which doesn't suggest he's endorsed it, Allen & Overy haven't endorsed it but rather the notes were produced for their seminars.
UKPC seem to latch on to anything legal that looks good for them. As for "recommendations" (particularly laughable in Mayhook v NCP) or "endorsements", these don't have fact of law and aren't first hand meaning UKPC could spout anything they want. Next thing they'll have their grannies telling POPLA that they are good boys and girls and deserve the money!
Doesn't look to me like they have quoted anything from Robophone itself, they just seem to refer to the interpretation of the law based on the case, by Richard Hooley.
They quote Takel el Makdessi v Cavandish, a case involving £millions. I cannot see how it relates to a parking ticket, I do not know what a County Court Judge would make of it.
I believe Makdessi was considered at both the County Court and Court of Appeal in the Parking Eye v Beavis case, so clearly the principles, if not the facts, are somewhat relevant.0 -
So what if they have quoted Mr Clarke ,it's meaningless .
The ridiculous thing is that they don't need to go to those pathetic lengths now , for an overstay in a free car park gpeol is dead in the water unless the Supreme Court overturns the CoA judgment0 -
Definitely point out that no evidence of authority has been provided and try searching the forum for UKPC rebuttal to find examples of others who have recently received and rebutted the same/very similar evidence pack - like this one
https://forums.moneysavingexpert.com/discussion/51352680 -
salmosalaris wrote: »So what if they have quoted Mr Clarke ,it's meaningless .
The ridiculous thing is that they don't need to go to those pathetic lengths now , for an overstay in a free car park gpeol is dead in the water unless the Supreme Court overturns the CoA judgment
This I suspect is the reason why for the last year or so PE have refused to cooperate with POPLA by providing an evidence pack to justify GPEOL. It would hardly have supported their case for 'commercial justification' or whatever it was the CoA decided if PE were producing thousands of evidence packs to POPLA claiming that their charges are a GPEOL.0 -
Hi
I was issued a parking ticket for not displaying the pay and display ticket. I appeal to the issuer and they have rejected this. And have advised that I can appeal using POPLA form.
Where do I stand? Please help
Regards0
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