MET - Beaconsfield - POPLA appeal help

Airwalker1979

Hello all.

I have read plenty and followed through the process from the newbie sticky. I have now received the rejection letter and have a POPLA code to issue my appeal letter as keeper. I have a template drafted out at below, but was hoping to get some clarification on a couple of points.

For reference, this case applies to Beaconsfield Railway Station with MET being the operator.

1. The rejection does not state specifically that the charge "represents a claim for liquidated damages" as I have noted in other cases. Does this matter? I have instead reiterated the core points from the initial template regarding genuine pre-estimate of loss.

2. The rejection letter specifically states that they “are the creditor and engaged by McDonald’s”. This threw me. McDonald's? I do not know who the land owner is, but presumably as railway land, it's not McDonald's. Is this a lazy use of a template regarding the fact that MET do operate within McDonald's carparks? Is there more I can do to lever against this point as an obvious error? Or is it correct and McDonald's do indeed own the land?

3. There was no reference in the original PCN or NtK that specifically stated they were pursuing the keeper as the liable party. As I understand it, this means there are no grounds to use this as a reason to appeal. I assume they have learnt from previous rejections. Their focus throughout is that the PCN was issued as a result of a breach of the T&Cs displayed on their signs.

My draft below is based on other documents I have seen from threads within this forum and I take no credit for the references made to other cases, which are the product of others' detailed research for which I am very grateful. It has been tailored to allow for the 3 points detailed above.

I would very much welcome your feedback and advice.

Dear Sir/Madam,
POPLA CODE xxxxxxx

As the registered keeper of the vehicle, registration number xxxx xxxx, I wish to appeal against the parking charge issued by MET Parking Services.

My appeal is based on the following grounds.

1. Genuine pre-estimate of loss.

2. Unlawful penalty charge

3. No contractual authority to levy charges.

4. Unclear and non-compliant signage


To expand on these points:

1) Genuine pre-estimate of loss
MET Parking Services applies a charge the sum of which does not represent a genuine pre-estimate of loss, nor is it a core price term. It is extravagant and unconscionable when compared to local parking charges issued by the Council so cannot be justified.

The Department for Transport guidelines state, in Section 16 Frequently Asked Questions, that:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."

MET Parking cannot lawfully include their operational day-to-day running costs in any 'loss' claimed. In this case, MET Parking has failed to provide any calculation to show how the £100 figure is arrived at, whether as an actual or pre-estimated loss.

In addition, the sum claimed cannot be a genuine pre-estimate of loss, as any contractual breach attracts the exact same apparent amount of loss, whatever the alleged breach of contract may be. If the sum claimed were a genuine pre-estimate of loss, it follows that the loss cannot be £50 on days 1 to 14, then £100 thereafter. This is clearly an arbitrary sum invented by the Respondent.


2) Unlawful penalty charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at dressing up an unlawful penalty to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

In the case of Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd, Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

(C) There is a presumption (but no more) 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".

And in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for 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...''

Finally, I believe MET are in breach of the Unfair Terms Act 1997 and Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
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.


3) No contractual authority to levy charges
MET have not provided me with any evidence that they are lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that MET Parking Services has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.

I request MET provide POPLA documentary evidence in the form of a full copy of the original contemporaneous site agreement/contract with the landowner/occupier signed and dated (not just a signed slip of paper saying it exists). Specifically, to comply with the Code of Practice, the contract needs to specifically grant MET the right to pursue parking charges in the courts in their own name, as creditor.

I also do not believe that MET has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012). I say that any contract is also not compliant with the requirements set out in the BPA Code of Practice.

Furthermore, MET Parking Services, in their letter of rejection state that they “are the creditor and engaged by McDonald’s”. The Private Land upon which this notice applies is not owned nor otherwise engaged by McDonald’s, and any claim stating that MET Parking Services have been granted any controlling authority by a party who have no legal right over such is fraudulent.


4) Unclear and non-compliant signage
I contend that the signs and any core parking terms MET are relying upon were too small for any driver to see, read or understand whilst simultaneously being in motion driving into the car park.

I request that POPLA verify the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the full terms and any consequences for breach, as in this case of ‘Excel Parking Services Ltd v Martin Cutts, 2011’ and;

In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:
“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”

So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance on the drivers side, and free of any obstruction to view, the elements of a contract have not been met. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.



On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999 and basic contract law.

This ‘charge’ is unfair and punitive and, as such, I respectfully request that this appeal be allowed.

fisherjim

Ha ha what a complete bunch of Muppets, no McDonalds do not own our railways yet.!
They have sent you a template NTK for the wrong location, I'm sure the regulars will have some ideas on this one.

Airwalker1979

Ha - yes, Muppets was definitely one of my first thoughts, until self doubt set in and I questioned myself thinking surely no one could be that stupid and that perhaps it was true!

Airwalker1979

Sorry to bump - just one more question in addition to the original post:

- At this stage, should photographic evidence also be attached for signs (and with specific annotations?), or is this best omitted unless requested?

Thanks in advance for for your help answering this and the original query.

prjohnsonnn10

Hi - if you search under my user name you will see i have a fair bit of experience with this lot.... I was the one who flagged up their inconsistencies some time ago and caused the furore with them having to change all of their signage and letters..but they are still operating in the margins of PoFA AND Byelaws. .

They are MANAGING the car parks under Railway Byelaws and have gone into print on this.

...BUT they claim to be able to levy 'parking charges' as opposed to Byelaw 14 style 'fines' ie they are still mixing the POFA and Non Pofa regimes... they have actually claimed that because the land is railway owned and is outside of PoFa they are only 'offering POPLA as a service to customers' as they are not obliged to.

In any appeal highlight that you are RK and NOT the driver and put that as your main headline point - back ed up with the photo of the sign at the car park which says it is managed under railway byel;aws and popla assessor SHOULD acknowledge that you have no liability. Lob in the No VAT on the Invoice argument too and push MET to send you a VAT invoice for their charge as they have stated its NOT a fine and they will refuse to. Another point useful at POPLA

If you have disclosed yourself as the driver then just go with the template including GPEOL etc. .

Happy POPLA ing .... you will win.

PJ

prjohnsonnn10

As an aside did you know that Chiltern Railways at the Beac car park now take over GBP 1m a year in parking turnover.... last year Chiltern railways (which is supposed to be a railway operator!!) actually made more money from parking charges than it did from operating the passenger train service...how about that one.... thats what you get when Gordon brown and co decided to bow to pressure from the railway opertaors and define the parking charge as a non regulated item (fare).... railway companies can charge what they like providing basically there is another (competing) car park within 1 mile of the station car park...Labour agreed to this definition of a 'competing car park' - who the fxxk walks ONE mile every day to and from the car park !! Anyway Chiltern railways car park ticket price 'inflation' at Beac car park since 2006 is 19% - they held the prices last year (due to public pressure i think) but the annual average since 2006 is 19% . Criminal and thats why they make more from car parks now than they do from running trains....

adieu...

Coupon-mad

There was no reference in the original PCN or NtK that specifically stated they were pursuing the keeper as the liable party. As I understand it, this means there are no grounds to use this as a reason to appeal.

You understand that wrong and MUST certainly add 'no keeper liability' if it's the keeper who has appealed - kind of obvious surely?!

Why does the keeper appeal - to give themselves the chance to argue exactly that appeal point. It's a slam dunk POPLA win as long as the driver is not admitted.

Airwalker1979

My confusion relates to phrasing used in other appeals where specific reference was made in the rejection letters from MET stating that they were "citing the Act". This wasn't the case in my letter, leading me to conclude that if they were not specifically mentioning it in the correspondence, then this was not a valid area to lay down an appeal response against. While this territory is familiar and patently obvious to those of you that contribute advice to this forum, as a layman seeking help it is simply not so simple to my perspective. I understand your point - this is a constant learning process.

I am indeed appealing as keeper, not driver.

I have added a 5th reason:

5. There is no 'keeper liability' since bylaws apply at this railway car park.

5) There is no 'keeper liability' since bylaws apply at this railway car park. This is not relevant land under POFA2012 so the NTK is flawed. This particular site fails to meet the definition of 'relevant land' under the Protection of Freedoms Act 2012 (POFA) that might otherwise have enabled the Operator to pursue this matter with myself (the keeper). The Operator has issued a defective Notice on the basis of an Act, which does not apply at this particular site, in an attempt to claim an unenforceable charge from the keeper (myself). No keeper liability is likely to apply at all, due to Chiltern Railway’s Bylaws taking precedence, and rendering this land outwith POFA and outwith 'registered keeper liability'. For this Operator to assume that they have the right to 'registered keeper liability' under POFA when that right is simply not available on land specifically covered by local Bylaws, is a breach of the Consumer Protection from Unfair Trading Regulations 2008. Such land is generally not 'relevant land' under the definition within POFA and if the Operator contends otherwise they will need to show POPLA documentary evidence from the landowner/client in possession of this site, or maps showing where the Bylaws cease to apply around this railway.

Airwalker1979

Hi all,

Do any of you have anything more to add before I send this appeal?

Love to know your thoughts on my original point 2, where the rejection letter incorrectly stated McDonald's as the land owner. Do I make more of this, or is it enough as framed?

Also on the question about photographic evidence. Include or not. Mark up with comments or not? The sign map does correlate to the actual placement. The issue is more about position and legibility while driving, which is all arguably subjective.

Airwalker1979

well, case submitted. Will update pending result!

Airwalker1979

Hi all, just a very quick post to advise that my Appeal was upheld by POPLA. Happy days, and many thanks to this forum for giving me the confidence to follow through with this process.