Athena POPLA letter May '15

ChocoNutPillows

Afteroon all,

I have received a letter from Athena rejecting my appeal, as expected, from a charge issued on 12th May 2015. I have a draft ready to submit to POPLA but I'm a bit unsure of the process having not done it before.

I have admittedly used a draft from this forum and tweaked it slightly for my case, so there is a paragraph I am unsure of.

5) Cameras
Athena ANPR are obliged to make sure their equipment is in working order and comply with the requirements of the BPA Code of Practice part 21. The appellant required them to present evidence on whether the cameras were checked and maintained recently in relation to the date of the alleged incident, to ensure the accuracy of any Athena ANPR images. They have failed to do so, although this is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
I also challenge The Operator to show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and demand that they demonstrate adherence.

This sounds as if I have already asked for proof of maintenance does it not? Is that something I should have asked for in my initial appeal letter?

Finally, do I wait for Athena to submit evidence to POPLA or am I the one to make the first move?

Thanks,
ChocoNutPillow

ColliesCarer

You can still raise an ANPR challenge even if you didn't in your initial appeal to the ppc.

There are better drafts for this than the one you have included though which refer to a case lost as the ANPR was shown to be faulty?( I think) - if I can find it I'll post it for you.

Also was this a Lidl/Athena (or the type of sign that tries to say it was a contractual charge)?
If so might be worth posting up your not a GPEOL point - as needs wording that challenges whether their charges are truly contractual - because they're not.


Finally, do I wait for Athena to submit evidence to POPLA or am I the one to make the first move?

You must submit your POPLA first and within the deadline.
The PPC will submit their evidence to POPLA in response to POPLA sending them your appeal. You should receive a copy too - usually only about a week before your appeal will be assessed . Check it when it arrives and rebut anything that still needs to be challenged by sending a further submission to POPLA.

If you Search the Forum (search posts not threads) for Athena POPLA you will examples of POPLAs and rebuttals

ChocoNutPillows

Thanks for that ColliesCarer (I'm a massive fan of Collies, btw!).

If you don't mind I'll post up what I have so far.

POPLA Code:
Vehicle Reg:
PPC: Athena ANPR
PCN Ref:
Alleged Contravention Date & Time:
Date of PCN:

On xx of xxx 2015 I was sent an invoice from Athena ANPR as keeper of the above vehicle requiring payment of a charge of £90 for an alleged parking contravention.
I would like to appeal this notice on the following grounds:


1a) - This charge is not a contractually agreed sum
1b) - Charge not a genuine pre-estimate of loss
2) - No Creditor identified on the Notice to Appellant
3) - No authority to levy charges
4) - Lack of contract
5) - Cameras




1a) The charge is not a contractually agreed sum – it is a disguised breach

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.

This is a free (for 10 minutes) car park and there is no mechanism to pay for additional parking. The signage indicates that parking for over 10 minutes attracts a £90 charge and, as no limits are specified, this could equally apply for an additional 10 minutes, 10 weeks or indeed 10 years!

In their letter to me rejecting my appeal they state "There are sufficient number of signs in the car park, which clearly state that if you fail to comply with the terms you will be liable to pay a parking charge". The words "fail to comply" indicate the charge is in fact a sum sought as damages for an alleged breach of contract and therefore the charge must be a genuine pre estimate of loss.

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' at Lidl is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.



In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, 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”.

It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.

I require Athena ANPR Ltd to provide a VAT invoice, details of the daily rates of parking and proof that this chargeable regime at this location is registered for business rates.

1b) Charge not a genuine pre-estimate of loss

If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach.

The car park is free and there was no damage or obstruction caused (nor is any being alleged). I submit that on a free car park there can be no loss arising from any alleged overstay.

The demand for £90 is punitive, unreasonable, exceeds an appropriate amount
has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.
The BPA Code of Practice states:
19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.
The appellant requires Athena ANPR to provide a detailed breakdown of how the amount of the charge was calculated. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.

I therefore respectfully request that my appeal is upheld and the charge dismissed.



2) No Creditor identified on the Notice to Appellant
Failing to include specific identification as to who ‘the Creditor’ may be is misleading and not compliant in regard to paragraph 9(2)(h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to Athena ANPR, there is no specific identification of the Creditor who may, in law, be Athena ANPR or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that ‘The Creditor is…’ and the Notice does not.

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. Where a Notice is to be relied upon to establish liability under Paragraph 9 it must, as with any statutory provision, comply with the Act. As the Notice was not compliant with the Act, it was not properly issued.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

3) No Legal Standing or Authority to Pursue Charges or Form Contracts with Drivers

Athena ANPR Ltd are not the landowner and do not have title or assigned interest in this land which means that they have no have no legal standing to allege trespass or loss, if that is the basis of their charge. Nor do they have the legal status at that site, which would give them any right to offer parking spaces on a contractual basis as they are not the landowner and I have seen no evidence that they are lawfully entitled to demand money from a driver or keeper.

Athena ANPR Ltd is a member of the British Parking Association, and the BPA Code of Practice states, in Section 7.1, that the operator must have written authority from the landowner to recover parking charges, including pursuing through court action in their own name.

I therefore put Athena ANPR Ltd to strict proof that they have the necessary authorisation at the location in question i.e. a relevant contemporaneous contract with the landowner (not an individual lessee or managing agent as they are another third party) to pursue these charges in the courts in their own name as creditor. In the event that witness statements are submitted instead of the landowner contract itself, I require that this should be disregarded as insufficient to prove full BPA compliance.

Even if a basic contract is produced and mentions Parking Charge Notices, I submit that such a contract is a commercial matter between the Operator and the owner/occupier and the lack of ownership or assignment of title or interest in the land reduces any such contract to one that exists simply on an agency basis between Athena ANPR Ltd and the owner/occupier. Such a contract would contain nothing that Athena ANPR Ltd can lawfully use in their own name as a mere agent, that could impact on a third party customer as it doesn’t create any contractual relationship between Athena ANPR Ltd and motorists who used the land. A parking operator has no standing to bring the claim in their own name.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

4) No contract

There was no contract between the driver and Athena ANPR. The driver did not see any contractual information on any signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied. And even if there was a contract, which has yet to be proven, then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

5) Cameras

Athena ANPR are obliged to make sure their equipment is in working order and comply with the requirements of the BPA Code of Practice part 21. The appellant required them to present evidence on whether the cameras were checked and maintained recently in relation to the date of the alleged incident, to ensure the accuracy of any Athena ANPR images. They have failed to do so, although this is important because the entirety of the charge is founded on two images purporting to show the vehicle entering and exiting at specific times.
I also challenge The Operator to show that DPA registration (data collecting CCTV) is also compliant with legal and BPA requirements and demand that they demonstrate adherence.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully ,
xxxx

Umkomaas

The charge is not a contractually agreed sum – it is a disguised breach

Sorry, that doesn't make sense! It should read '.... it is a disguised penalty'.

Please drop this grovelling pleading after each appeal point. Once at the end of the whole appeal is more than enough!

I therefore respectfully request that my appeal is upheld and the charge dismissed.

The rest looks ok - but the 'grovelling' in the example you've seemingly worked from does rather date this - we've been telling people to drop it for many months now.

Was this from an actual Athena POPLA appeal?

Guys_Dad

Your point "I therefore put Athena ANPR Ltd to strict proof that they have the necessary authorisation at the location in question i.e. a relevant contemporaneous contract with the landowner (not an individual lessee or managing agent as they are another third party) to pursue these charges in the courts in their own name as creditor." should be slightly rewritten

I therefore put Athena ANPR Ltd to strict proof that they have the necessary authorisation at the location in question i.e. a relevant contemporaneous contract with the landowner in person. If the contract is with an individual lessee, managing agent or another third party, then I require that the contract between the landowner and the contracting client be produced to show that the 3rd party has the relevant authority to appoint a Private Parking Company.

ChocoNutPillows

Umkomaas - I have address those points, thanks. Yes I was an actual appeal, I can't remember by who but I have only used bits from appeals I have found linked rather than that I've just found by myself.

Guys Dad - Thanks, I've changed that paragraph.