CEL Latest 'template' POPLA evidence

prjohnsonnn10

I have an appeal ongoing with this lot at a car park where they are going for the contractual charge route. My appeal is in covering off this as much as I can including no VAT, poor signage, etc etc, charge masquerading as a penalty etc . However, this just turned up yesterday post Beavis v PE and I would like to know any ways of rebuffing it . I think it may be the time for us on here to have a set of 'standard'rebuffs yes for these supplementary post Beavis docs that are going to come from PPC's in POPLA cases?

Thanks

]POPLA verification code xxxxxx
Contractual Obligation/Parking Charge amount.
As confirmed by the recent dismissal of the ParkingEye v Beavis appeal, we submit that the charge does not cause a significant imba lance of the parties' rights and obligations arising under the Contract.
The charge sought is a contractual term, which is within the recommended British Parking Association (BPA) guidelines, and is compliant with paragraph 19.5 of the BPA code. Furthermore, the BPA has authorised us to charge at this level.
The PCN was for the sum due to the Appellant, in consideration for the Operator making parking facilities available to them. To borrow the words of Lord Roskill, with whom the other members of the House of Lords agreed, in Export Credits Guarantee Department v Universal Oil Products Co and others [1983] 1 WLR 399, 402H, he stated:
"The clause was not a penalty clause because it provided for payment of money on the happening of a specified event other than a breach of contractual duty owed by the contemplated payer to the contemplated payee."
Further, it would be erroneous to conclude that the sum claimed must be a genuine pre-estimation of loss. Such a limitation arises only in respect of penalty clauses, not in respect of the contractually agreed consideration for performance of an obligation. We again refer you to the recent Judgment of ParkingEye v Beavis, which was upheld by the Court of Appeal. In the Court of Appeal's Judgment it is stated that a parking charge should be equated to a disincentive for drivers, not a penalty, as the charges are not so grossly unreasonable as to be unenforceable at common law. Moreover, it is stated that it would be correct to interpret Parliament's intention on passing section 56 Schedule 4 of the Protection of Freedoms Act 2012, as:
"...being in the public interest that parking charges of the kind now under consideration should be recoverable, provided that they had been brought clearly to the attention of the motorist at the time he made use of the car park."
Please note that in the recent Judgment of Civil Enforcement Limited v Ferris, the claim was decided in Civil Enforcement's favour, and it was decided by the Judge that:
"irrespective of the basis of the charge, contract or penalty, Civil Enforcement Limited are completely within their rights to charge to amount set."
Please further note Parking Eye's recent statement regarding the Parking Charge amount: "ParkingEye firmly believes that its Parking Charges are fair and reasonable, ParkingEye' s Parking Charges are in line with the British Parking Association guidelines, and have been tested at the Court of Appeal. A charge of £75 was found by HHJ Hegarty QC in the case of ParkingEye v Somerfield Stores (2011) to be a reasonable charge, by which the motorist (when exceeding the specified time limit) would be contractually bound.
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Umkomaas

First off you need to get photos of their signage - most of them contain terms such as 'deterrent' 'breach' as well as 'contractual', if one won't work, we'll try the other, and if that don't ......

You also might want to point out that in their excitement at hearing about the Court of Appeal decision, they missed the fact (or are they trying to hide it) that the case is now bound for a further and final appeal at the Supreme Court. Nothing is yet settled.

prjohnsonnn10

Thnaks Umko..... all other thghtgs grsatefully received chaps.

Anpother question for you guys on here - can anyone recall / dig out a successful POPLA appeal that was won in a çontractual charge'model car park? Has anyone pulled the POPLA rabbit out of the hat when arguing for instance No 'VAT invoice ..." etc etc and has POPLA ever ruled on thjose grounds does anyone know? Thanks

bod1467

VAT has been used previously, but - as I recall - POPLA stated they were unable to rule on such legal matters. (And yes - I appreciate the irony that they're content to ignore certain legalities whilst granting/denying appeals on the basis of other legal points).

Fight_the_good_fight

Despite reading a number of NtK on here, the various PPC's are quite clear on detailing PoFA the act,section and paragraphs and the onus this places on the RK but are extremely wishy washy with the actual legislation they are pursuing the PCN on,stating breaches of terms and conditions.From my understanding breach of T&C 's is not a definitive offence and is present in a number of various laws including Contract ,Sale of good Act and Trespass to name but a few.
With this in mind and on receipt of such PCN's and prior to lodging an appeal surely the question should be asked that in a similar vein to their explanation of POFA to detail the actual legislation they are pursuing their invoice.
Failure to provide such information would put the defendant at a disadvantage in being able to make an informed decision on their legal standing and may be construed in a court of law as with holding information which an adverse inference could be drawn.
To point out I am not legally trained or have legal knowledge but surely this is a point that needs addressing

Ryan_Bryan

This was a recently successful POPLA appeal as reported in the similarly named thread. It's the only POFA related win I remember seeing but there must have been more.
http://forums.moneysavingexpert.com/showpost.php?p=68241680&postcount=1689

Sadly the assessor's name is edited out.

Fight_the_good_fight

Ryan my argument is not in relation to POFA that is separate but which definitive piece of legislation they are perusing their invoices on

salmosalaris

Details of "infringement"?

Parking-Prankster

Ah yes, the famous CEL v Ferris case.


http://parking-prankster.blogspot.co.uk/2015/01/cel-turn-up-to-court-50-cases-of.html

Mr Ritchie suggested a test case could be heard. Mr Fealey explained that the claimants conduct so far was an indication of the nature of the beast. In the papers already submitted CEL had suggested that the test case be CEL v Ms Ferris which has already been held. However, in that case the papers had been submitted to Co-op funerals rather than Co-op stores, which resulted in the Co-op legal team not turning up. They were therefore currently seeking a set-aside for that case, which was objected to by CEL and that case was therefore not suitable to be a test case.

Perhaps they should quote a case where the papers were served on the correct defendant.

Ryan_Bryan

Fight_the_good_fight wrote: »

Ryan my argument is not in relation to POFA that is separate but which definitive piece of legislation they are perusing their invoices on

I was actually pointing it out to the O.P. The first lines in his post being
'I have an appeal ongoing with this lot at a car park where they are going for the contractual charge route.'

However, the point you make is interesting because the Appeal Court ruling signally failed to define what actual model parking lie work on. It's not a contract, it's not a fine, it's not a penalty but it is commercial justification. Thank God it's not a done deal.

Fight_the_good_fight

POFA is similar to similar to 172 of the RTA in the real world and is an arm used in legislation to name the driver for a specific offence.NtK do not mention the specific offence..it would be unacceptable in the real world to accept a summons asking you to appear before a court for an offence under the RTA without giving further details so surely this should be the same for PPC's and something that should be challenged