PCN for not displaying ticket, when it was visible

agh100

ok, could someone check this over now please..


Dear POPLA Assesor,

Re parking charge notice
POPLA ref

I am the registered keeper and I wish to appeal this charge on the following grounds;

1) Contract with Landowner
2) Notice to Keeper fails to comply with POFA 2012 Schedule 4 - no keeper liability

3) Inadequate and non compliant signage - therefore no contract with driver
4) The alleged event did not occur - a Valid Permit WAS displayed
5) No Genuine Pre Estimate of Loss

1) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I request that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practice, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provide a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

2) Notice to Keeper fails to comply with POFA 2012 Schedule 4 - no keeper liability

The Notice to Keeper does not comply with POFA 2012 Schedule 4 - specifically, it shows two photographs of the rear of the car. This is not sufficient evidence as proof that no permit was displayed in the car.
Additionally, it does not inform the keeper of any discount offered for prompt payment.

A notice to keeper that complies fully with the statutory requirements of POFA 2012 Schedule is fundamental to establishing the right to pursue the keeper. The operators NtK fails to comply and therefore they have no right to pursue the keeper and I am not liable for this charge.

3) Inadequate and Noncompliant Signage

Please note that the appellant has made a subsequent visit to establish the state of signage in the disputed area. The visit was made in daylight on a dry day, completely opposite to the conditions /time of the alleged breach.

On entering the development there is only 1 visible sign which is placed approx 2m up a lamp post on the opposite side of the road. Other signs further away are attached to the apartment buildings and it is completely unclear as to whether the same rules apply to the whole development as the wording on the signs differs.

The BPA code of practice February 2014 clearly states that "Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing THE SPECIFIC PARKING TERMS throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand".

I assert that in order to comply with this code the signs should clearly state the charges for stopping outside of a marked bay which they do not. They simply indicate the penalty for not displaying a valid permit or for over staying in those bays.

I also assert that being unable to read the detail on the sign visible on entry without stopping a vehicle and having only one sign located as described at the far end of the development which may or may not be visible depending on which spaces are occupied at the time of parking, further breaches this code.

I therefore require that the Operator submit contemporaneous evidence of clear and prominent signage throughout the development in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

I have taken photographs myself today for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.



4) The alleged event did not occur - a Valid Permit WAS displayed

The Operator has said the reason for the PCN is that a valid Permit was not displayed. However, this is not the case, the permit was in the car and displayed, it was visible through the small side window, between the wing mirror and next to the windscreen, but still visible through the windscreen as well. All details on the permit visible. I have enclosed photographs of where the permit was displayed, which were included when appealing to the operator as well.
The Operator has not been clear on where exactly a permit should be displayed in the vehicle, but it cannot be correct that a £100 fee is a valid because the location of the displayed permit is not entirely as they require.


5) No Genuine Pre Estimate of Loss

a) The Charge is not a contractual fee – it is a disguised breach

The Operator has attempted to avoid the necessity of having to justify a pre estimate of loss by stating that this is a contractually agreed fee on their signage. However on both the parking charge notice (which is described as exactly that, NOT an invoice for an agreed fee) and the rejection letter to my appeal they state that the charge is for having "breached" the terms and conditions of parking. In addition, the wording on their sign also states that "unauthorised parking may result in your vehicle being issued with a parking charge notice".

The charge must be either for damages or a fee paid for parking (consideration) it cannot be for both and in order for it to be consideration, it would have to mean that permission to park for longer than 48 hours was given providing a fee was paid. Clearly permission to "park in breach" cannot be granted and I therefore submit that it is clear that the amount sought is for parking in breach and that the amount represents liquidated damages which is compensation agreed in advance.

I would like to highlight a similar appeal against CPM where POPLA assessor Marina Kapour found that

"The charge must either be for damages as submitted by the Appellant, or for consideration - the price paid for the parking as submitted by the Operator. In order for the charge to be consideration, the parking charge must be paid in return for something, here permission to park beyond the permitted stay. In other words, the sign must permit the motorist to park beyond the maximum stay provided he or she pay the charge. Clearly, permission to park 'in breach' is not granted, and so the parking charge cannot be a contractual price. Instead, it is clear that the charge is in fact a sum sought as damages, and therefore must be a genuine pre estimate of the loss which may be caused by the parking breach. I find it seems clear that the signs in this car park do not give permission to park in return for the parking charge and so it cannot be consideration".

I must also highlight POPLA appeal reference 9663053967 where an initially refused appeal against the same Operator who again, made the same attempt to describe the charge as a contractually agreed fee on their signage was allowed by the Lead Adjudicator. It was found that the charge was a penalty and as such was not a genuine pre estimate of loss. I contend that the same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee but is a disguised breach and must be shown to be a genuine pre estimate of loss to be enforceable.



b) The Charge is Not a Genuine Pre Estimate of Loss

The charge of £100 is being sought for an alleged breach of the parking terms namely “not displaying a valid permit” consequently I contend, and the BPA code of practice states, that a charge for breach must be based on the genuine pre estimate of loss.

The Office of Fair Trading has stated to the BPA that 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.

On the day in question, the vehicle was parked overnight with a valid permit displayed (see point 4), albeit not in the position they are suggesting is correct within the vehicle, there was neither damage nor obstruction caused (nor has been alleged) and it is clear that there was no loss caused to either the Operator, or the landowner, by any alleged breach.

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated that a stipulation "will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

As the charge in this case is the same lump sum whether the vehicle is parked for 1minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.
In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach. Operational business costs such as staffing, equipment, vehicles, uniforms, signage or fuel expenses cannot possibly flow as a direct result of any breach as the Operator would be in the same position whether or not any breaches occur.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.

The Operator will no doubt state as they have in their rejection of my appeal that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that

"the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonable moved away from a strict interpretation of what constitutes a genuine pre estimate of loss, recognising that in complex commercial situations an accurate pre estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in my case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss. I would refer the assessor to the lead assessor's words from his 2014 annual report and expect that any attempt of a breakdown of supposed losses from the operator that contained costs that do not conform to Mr Greenslade's definition be ruled as extraneous.

He wrote

"However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."








In their response to my appeal, the Operator has strongly recommended that I pay within 28 days in order to avoid further charges which doesn't allow me sufficient time to await your response. They add weight to their suggestion by quoting what they refer to as case law specifically the case of Beavis v Parking Eye which I understand is currently with the court of appeal and the judgement is not expected until Easter meaning it is not in fact case law at this point. This is a blatant attempt to dissuade me from following the correct appeal process which is unethical and will be reported to the BPA.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case. However, whatever the outcome of the Supreme Court appeal, it would not apply in this case, as this case involves a private car park, not a public car park with a time limit, so should be disregarded.

I respectfully request that my appeal be upheld and the Operator required to cancel this penalty.

Redx

The_Slithy_Tove wrote: »

Though Beavis is quite irrelevant in this case. The circumstances of a private car park like this are so wildly different from Beavis (a public car park with a time limit), that it should simply be pointed out that whatever the outcome of the SC appeal, it would not apply in this case, so should be disregarded.

so some of you keep saying, yet none of you can predict the outcome of the Beavis appeal at the Supreme Court this week

none of you predicted the outcome of his COA appeal

many cases are stayed at popla due to the Beavis case, if no other appeal point can be ruled upon

even IPC court cases are being stayed pending the Beavis appeal as mentioned by Barry Beavis this morning on tv and wasnt contradicted by Will Hurley

so in MY opinion, it costs nothing to add it in and you never know if it may prove useful

if it doesnt, then it took a tad longer to write or to upload as a word doc

I would add it IRRESPECTIVE of what anyone on here says, letting popla decide on what the S.C. decides in due course, IF the popla case was stayed pending Beavis

I agree that if you were all correct and the S.C. followed your lead, then it wouldnt need to be there, but none of you are in the S.C. with a case and none of you can predict the outcome , just the same as you cannot tell me tomorrow nights lottery numbers , so its only your opinion, not fact (the facts will be laid bare when the S.C. rule and possibly when the government do something about this topic due to the recent public survey) , so it may or may not be relevant, time will tell.

so IMHO the sooner people stop saying this and allow it to go in regardless , the better, cos if it aint in, it wont be considered, so better to be in and considered, even if its disregarded, than not in at all ( its doing no harm in being in there, same as not a gpeol, regardless !! )

coupon-mad says it in the NEWBIES sticky thread too, no caveats, just to put it in anyway - regardless , in any and all popla appeals (just in case it is or becomes relevant in the future)

also mentioned here too

http://forums.moneysavingexpert.com/showpost.php?p=68832173&postcount=21

parking prankster sort of make the point here, regarding innocent until proven "guilty"

http://parking-prankster.blogspot.co.uk/2015/07/independent-parking-company-sham-exposed.html

so if you run out of ammunition, throw rocks , but dont stop throwing

Redx

agh100 wrote: »

ok, could someone check this over now please..




In their response to my appeal, the Operator has strongly recommended that I pay within 28 days in order to avoid further charges which doesn't allow me sufficient time to await your response. They add weight to their suggestion by quoting what they refer to as case law specifically the case of Beavis v Parking Eye which I understand is currently with the court of appeal and the judgement is not expected until Easter meaning it is not in fact case law at this point. This is a blatant attempt to dissuade me from following the correct appeal process which is unethical and will be reported to the BPA.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case. However, whatever the outcome of the Supreme Court appeal, it would not apply in this case, as this case involves a private car park, not a public car park with a time limit, so should be disregarded.

I respectfully request that my appeal be upheld and the Operator required to cancel this penalty.

the part in red is rubbish, clearly copied and pasted from an appeal made months ago

it is in fact at the Supreme Court this week and the Beavis case is to be debated this thursday (it started today with Makadessi)

plus Assessor is spelt incorrectly in the opening paragraph

other than that it seems ok

plus if they are mentioning Beavis in their blurb, its important to refute it , because they brought it up, then its in play , hence my previous reply is also how I see it as well, not just in this case, but anyway, because a lot of these companies are quoting Beavis (perhaps they are copying and pasting too ? lol)

its a bandwagon, so everybody jump on , regardless

agh100

removed the red bit and sent this off.

thanks

Mike172

UKCPM dont fight. I bait them into giving me tickets - I just received my 19th today!!!

Umkomaas

Mike172 wrote: »

UKCPM dont fight. I bait them into giving me tickets - I just received my 19th today!!!

Hit a Neanderthal on the head with a sledgehammer, and guess what?

They keep walking on ............ and keep getting hit! So keep costing them @Mike172. :cool: