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Parking Charge Notice Received
AugustLeo
Posts: 8 Forumite
Hello Everyone,
I am in need of some help please. I recently received a parking charge notice for parking my car outside my apartment building - albeit not in a parking bay but not in anyone's way. My mother came to visit and had nowhere to park (all the visitors spaces were being used) so before she arrived, I moved my car so she could use my space. I did not know the car park was bound by terms and conditions. I had never seen them before and I only found out about them after receiving a parking charge notice.
I appealed to NGPM but as you can probably guess they didn't accept what I had to say on the matter. I am now about to submit an appeal and have therefore spent a long, long time reading up on this subject. I have used an example letter found on this website and tailored it to my needs, deleting out grounds that are not relevant to my situation. I would be grateful if somebody could read it and let me know what your thoughts are. Please let me know if you have any questions.
I am the registered keeper of the above mentioned vehicle and I wish to appeal a recent parking charge notice I have received from New Generation Parking Management (the Operator). My grounds of appeal are:
£100 is a sum seemingly 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on adopted highways. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.
I require the Operator to explain their calculations behind this charge based on pre-estimate of loss and not post-estimate, which is what their letter of 29 May appears to explain (copy of letter attached). My position is that, any new version cannot be accepted as a genuine PRE-estimate. It is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.
In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated:
“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."
If the Operator presents a genuine pre-estimate of loss statement, I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put the Operator to strict proof that they ever had such a meeting.
If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''
A direct comparison can be drawn with Brookfield v Van Boekel that, so far as the Operator made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.
I contend that the figure of £100 is a penalty clause ‘in terrorem’ to deter breach, neither can it be commercially justified.
POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle 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 reasonably 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.''
2. No standing/authority to form contracts with motorists
The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non-compliant) signage and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As an agent acting under an agency agreement 'on behalf of' the principal, the Operator has negative responsibility and no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA CoP.
I put the Operator to strict proof to provide an un-redacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that the Operator can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows the Operator to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that the Operator can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.
3. Non-compliant signage, unclear and inadequate, which created no contract with the driver, who did not see any terms and conditions signs.
The BPA CoP at Appendix B sets out strict requirements for entrance signage, including:
"The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''
Since receiving a PCN from NGPM, I have taken the time to look around the car park to establish exactly where the terms and conditions signs are displayed. The signs on this site are sparse in comparison to the size of the site. Please also note that there are TWO entrances to the car park. The notices that display the terms and conditions are positioned to be visible to persons entering the car park from Newfoundland Way. However, I do not use this entrance and never have done. I have always entered the car park via the entrance which is off The Anchorage. There are no signs at this entrance which state that the car park is subject to terms and conditions (photo attached). In addition as soon as I turn left upon entering the car park, the only sign that is visible ahead of me states that it is private parking for residents and visitors of residents only – I am a resident (photo attached). From the route that I take in and out of the car park, the terms and conditions signs are positioned at angles that would require the driver of a vehicle to look away from the road and upwards, due to the height of them. The background colour of blue is one specifically referenced as “not easy to read” in the Code of Practice above. The font used on the signs terms and conditions is of a small nature and are ambiguous. The signage is not lit or reflective (again referenced in the CoP) and in addition, its location discriminates disabled people (photo attached), contrary to The Equality Act 2010, referred to CoP. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.
The sign makes the statement ‘By parking on this private land you are entering into a contract with New Generation Parking Management Ltd’, there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with NGPM in this case.
I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'
I request that POPLA should check the Operator’s evidence and signage map/photos on this point. I contend that the signs in the car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach (as in the case of Excel Parking Services Limited v Martin Cutts, 2011), especially those drivers who enter the car park from The Anchorage.
I am in need of some help please. I recently received a parking charge notice for parking my car outside my apartment building - albeit not in a parking bay but not in anyone's way. My mother came to visit and had nowhere to park (all the visitors spaces were being used) so before she arrived, I moved my car so she could use my space. I did not know the car park was bound by terms and conditions. I had never seen them before and I only found out about them after receiving a parking charge notice.
I appealed to NGPM but as you can probably guess they didn't accept what I had to say on the matter. I am now about to submit an appeal and have therefore spent a long, long time reading up on this subject. I have used an example letter found on this website and tailored it to my needs, deleting out grounds that are not relevant to my situation. I would be grateful if somebody could read it and let me know what your thoughts are. Please let me know if you have any questions.
I am the registered keeper of the above mentioned vehicle and I wish to appeal a recent parking charge notice I have received from New Generation Parking Management (the Operator). My grounds of appeal are:
- The charge is not a genuine pre-estimate of loss.
- No standing/authority to form contracts with motorists
- Non-compliant signage, unclear and inadequate
£100 is a sum seemingly 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on adopted highways. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.
I require the Operator to explain their calculations behind this charge based on pre-estimate of loss and not post-estimate, which is what their letter of 29 May appears to explain (copy of letter attached). My position is that, any new version cannot be accepted as a genuine PRE-estimate. It is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever.
In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated:
“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."
If the Operator presents a genuine pre-estimate of loss statement, I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put the Operator to strict proof that they ever had such a meeting.
If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''
A direct comparison can be drawn with Brookfield v Van Boekel that, so far as the Operator made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.
I contend that the figure of £100 is a penalty clause ‘in terrorem’ to deter breach, neither can it be commercially justified.
POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle 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 reasonably 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.''
2. No standing/authority to form contracts with motorists
The Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non-compliant) signage and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As an agent acting under an agency agreement 'on behalf of' the principal, the Operator has negative responsibility and no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA CoP.
I put the Operator to strict proof to provide an un-redacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that the Operator can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows the Operator to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that the Operator can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention.
3. Non-compliant signage, unclear and inadequate, which created no contract with the driver, who did not see any terms and conditions signs.
The BPA CoP at Appendix B sets out strict requirements for entrance signage, including:
"The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''
Since receiving a PCN from NGPM, I have taken the time to look around the car park to establish exactly where the terms and conditions signs are displayed. The signs on this site are sparse in comparison to the size of the site. Please also note that there are TWO entrances to the car park. The notices that display the terms and conditions are positioned to be visible to persons entering the car park from Newfoundland Way. However, I do not use this entrance and never have done. I have always entered the car park via the entrance which is off The Anchorage. There are no signs at this entrance which state that the car park is subject to terms and conditions (photo attached). In addition as soon as I turn left upon entering the car park, the only sign that is visible ahead of me states that it is private parking for residents and visitors of residents only – I am a resident (photo attached). From the route that I take in and out of the car park, the terms and conditions signs are positioned at angles that would require the driver of a vehicle to look away from the road and upwards, due to the height of them. The background colour of blue is one specifically referenced as “not easy to read” in the Code of Practice above. The font used on the signs terms and conditions is of a small nature and are ambiguous. The signage is not lit or reflective (again referenced in the CoP) and in addition, its location discriminates disabled people (photo attached), contrary to The Equality Act 2010, referred to CoP. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed.
The sign makes the statement ‘By parking on this private land you are entering into a contract with New Generation Parking Management Ltd’, there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with NGPM in this case.
I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'
I request that POPLA should check the Operator’s evidence and signage map/photos on this point. I contend that the signs in the car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach (as in the case of Excel Parking Services Limited v Martin Cutts, 2011), especially those drivers who enter the car park from The Anchorage.
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Comments
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even if its not relevant, make sure you add the Beavis case detailed in the NEWBIES thread, even as point 4)0
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Was this a windscreen ticket, followed by a PCN (NtK) in the post - if so did they meet the timeline for keeper liability?
If it was just a postal PCN (NtK) - a camera capture, did it arrive within 14 days of the parking event?
Did the NtK meet all the requirements of PoFA for them to legitimately pursue keeper liability?
If they fail in any of the above, then you most certainly need a NtK/PoFA appeal paragraph.
If it was a camera capture PCN, then you need an ANPR appeal paragraph to question accuracy of their equipment; with NGPM it's more often the case of a man on a bike with a smart phone camera - so this definitely, if appropriate, needs to be challenged.
I'd put the GPEOL paragraph (including the 'Beavis' point referenced by Redx) as your final, rather than first appeal point.
HTHPlease note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
Thanks Redx but I couldn't see anything written about the Beavis case in the newbies page. I'm sorry, I'm a little new to this.
Hi Umkomaas, there was no windscreen ticket... just a letter in the post 5 days later. The letter included two lovely pictures of the rear of my car... although they are very small and in black and white. Incidentally, there are no visible terms and conditions signs in those pictures either! They have been very sneaky to only place signs at one entrance and so when you drive in through the other entrance, you wouldn't see the signs because you are too busy looking out for other cars reversing out of car-ports and spaces and in addition, pedestrians and cyclists cross through the car park to get to the marina so you have to be mindful of them too. I have had so many sleepless nights over this. It has caused me a lot of stress. I would never have parked there if I had seen the relevant signage.0 -
No ANPR on site... I think it was just a case of someone turning up and taking a couple of pictures.0
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On the NEWBIES sticky thread, near the top of the forum, look at post #3 of it which is all about POPLA and tells you the words to add as a safety net to catch your case if a PPC argue it fairly well. The blue words I posted there ensure in most cases that you can't lose and will be adjourned pending the Beavis case and you'll get another bite at the cherry after that in late Autumn to add more.Thanks Redx but I couldn't see anything written about the Beavis case in the newbies page. I'm sorry, I'm a little new to this.
No link to the Newbies thread from me - two clicks and you are there reading it. Use the FORUM JUMP on the right and click GO and you are then looking at the sticky threads back at the top, page one. Click on the Newbies trhead then scroll to post #3 of it (abut POPLA stage) and there's the wording (not post #1 of it).
Do we assume you've given away who was driving already?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
even if its not relevant, make sure you add the Beavis case detailed in the NEWBIES thread, even as point 4)
I am struggling to see why. Surely our aim here is to play down the Beavis decision, a longish overstay in a free car park with no facility to pay for extra time, where the car park operator had a financial interest in the land. None of which applies here.You never know how far you can go until you go too far.0 -
I am struggling to see why. Surely our aim here is to play down the Beavis decision, a longish overstay in a free car park with no facility to pay for extra time, where the car park operator had a financial interest in the land. None of which applies here.
All explained in the NEWBIES FAQ sticky (near the top of the forum thread list, one page back from this one, use the FORUM JUMP button to navigate there).
You need to read the sticky before asking further questions! :rotfl:Please note, we are not a legal advice forum. I personally don't get involved in critiquing court case Defences/Witness Statements, so unable to help on that front. Please don't ask. .
I provide only my personal opinion, it is not a legal opinion, it is simply a personal one. I am not a lawyer.
Give a man a fish, and you feed him for a day; show him how to catch fish, and you feed him for a lifetime.Private Parking Firms - Killing the High Street0 -
That's what I thought The Depp... but perhaps I should say exactly that as the Operator that sent me the parking charge notice made a point of including the Beavis decision on their letter to me. I did think when I read it that it had no relevance to my case as I did not park in a pay and display car park nor do the residents have permits.
Coupon-mad - in answer to your question, yes, I explained in my original appeal letter that "I parked the car where I did" I realise I should not have said that but I was being honest.
The letter I received from the Operator states the following:
Thank you for your letter concerning the above parking event. Please rest assured that our Appeals Managers have personally investigated this claim and carefully considered the various points you have raised with us. However, based on the information we have received, we will not be waiving charge on this occasion. For the reasons stated.
Parking restrictions are clearly stated at the entrance to and within the site, which must be adhered to at all times. Signage clearly states that parking, stopping or waiting on the roadways/yellow lines or hatched areas is subject to a parking tariff of £100 reduced to £60 if paid within 14 days. Our genuine pre estimated loss has been attached to this letter.
We appreciate that this is not the decision you will have hoped for. Unless you have any additional information that you have not already brought to our attention, this decision is final. Although further correspondence will be noted and filed, we will not respond except where you have provided new evidence to substantiate your claim. Whilst we are unable to revoke this notice, we hope this offers an explanation and addresses your concerns. If you are liable for this parking charge you have two options.
Option 1 would be to settle the parking charge at the rate of £60 within 14 days. Please call XXX XXX or visit XXX XXX to make payment. Alternatively send a cheque or postal order to the address below (please add additional £2.50 if paying by cheque/postal order). Please note after this time the parking charge would rise to £100 and may be passed over to our debt recovery team for their perusal. This may result in civil court proceedings.
Option 2 is to log a formal independent appeal. As of from October 2012 you are welcome to lodge an appeal with the Parking on Private Land Appeals (POPLA) regarding this parking charge. Please visit XXX XXX, complete the form and submit to POPLA. However, please note, you will no longer be entitled to the discount rate of £60 and should POPLA refuse your appeal you will be liable for the standard rate of £100. When using the POPLA service you will be required to quote your PCN reference number, vehicle registration mark and unique verification code, which is detailed above.
Alternatively complete the forms enclosed and send to POPLA, PO Box 70748, London, EC1P 1SN.
1. Detailed below is how we justify the cost of our service to our clients, customer, solicitors and regulatory bodies. In contract law, a breach, once claimed, is dealt with by suing for liquidated damages. These damages must represent a genuine pre-estimate of a loss (GPEOL) incurred.
2. Genuine pre-estimate of loss
Background/Business Model
2.1.1 Our business models are based on receiving small fees from members of the public that use our car parks in return for a service, such as the fee paid at a pay and display machine, or the price paid for a parking permit for tenants / residents. Parking permit payments can also be included in rental payments for the property, if arranged through a managing agent. On commercial developments tenants will be allocated a specific quantity of parking spaces for their customers and staff to use. This is also accounted for in their rental payments to their managing agents/landlords.
2.1.2 It is in order to protect this revenue stream that it is necessary to issue a Parking Charge Notice to those who fail to comply with the well-advertised and clear terms and conditions for the location.
2.1.3 If it were to become public knowledge that we took no action against motorists that failed to comply with the terms and conditions, there would be no reason for members of public to pay for their parking or comply with the parking requirements for the location.
2.1.4 In turn, there would be a real danger that this business model would break down and our clients revenue stream would be damaged.
2.1.5 It is for this vital reason that it is necessary to issue a Parking Charge Notice.
2.2 Contractual basis of parking
2.2.1 Our Parking Charge Notices represent liquidated and ascertained damages. The measure of their damages is the loss of its revenue (for example the pay and display ticket not paid for) plus the cost of recovering that sum. The method of determining the quantum of damages is through the mechanism of liquidated ascertained damages.
2.2.2 Lest there be any doubt as to the legitimacy or enforceability of a liquidated and ascertained damages clause, please refer to Chitty on Contracts, 31st Edition, paragraphs 26-171.
2.2.3 The terms and conditions are clearly advertised throughout the parking locations and make it clear that a Parking Charge Notice may be issued for a breach of contract.
2.2.4 It is lawful that an offeree can enter into a contract through conduct, so long as the terms and conditions are clearly advertised. In this case there is clearly an offer and acceptance, with the consideration for the contract being the benefit of being able to park. Therefore a clear and valid contract.
2.2.5 The final point to demonstrate is to show that their Parking Charge Notice is a genuine pre-estimate loss.
2.3 Genuine pre-estimate of loss
2.3.1 We have shown that our business model is operated on the basis of payments for parking or by way of purchase of a parking permit or by parking and breaching the terms and conditions clearly detailed. It is to protect our business model that we need to issue Parking Charge Notices.
2.3.2 In the normal course of events, a contract manager, regional manager, director, or a combination of all will spend a significant amount of time managing and pursuing outstanding Parking Charge Notices.
2.3.3 It is estimated that approximately 3 hours of time is spent pursuing the average Parking Charge Notice.
2.3.4 It is true that some Notices require very little time and are, for example, settled quickly, however some Notices take considerably longer than 3 hours, such as a case that is referred to POPLA.
2.3.5 Taking the range of different outcomes into consideration it is estimated that 3 hours is spent on a typical Parking Charge Notice.
2.3.6 Management time costs us approximately £35 per hour.
2.3.7 Any surplus revenue that is recovered is allocated towards the actual costs incurred in processing the case, for example actual POPLA fees paid as an average over the number of cases issued and the costs incurred in receiving legal advice.
2.3.8 It is for the reasons stated above that a £100 Parking Charge Notice is a genuine pre-estimate of loss.
PARKINGEYE LIMITED V BEAVIS - COURT OF APPEAL
May we also refer you to the judgment made in the court of appeal (ParkingEye Limited v Beavis). In this hearing the judge ruled that parking charges issued on private land were not excessive. Our charges meet the same guidelines (BPA AOS code of practice) as that of ParkingEye Limited. BPA requirements states that the parking charge must not exceed £100 and a discount of 40% must be in place if the charge is settled within 14 days of issue. I have enclosed the following points, which are relevant in this case.
1. The parking charge (£85, reduced to £50 if paid within 14 days) was considered to be a deterrent to overstaying, but the intention to deter was not sufficient to invalid the term of the contract with the driver (or license - there is some discussion in the judgment that it might be a license or a contract). In order to invalidate the contract (or license) the parking charge would have to be extravagant and unconscionable and the charge made in this case was considered to be fine. The judges did not say what amount of parking charge would be extravagant and unconscionable (and therefore not enforceable);
2. The parking charge made in this case was not a penalty, and the issue of genuine pre-estimate of loss is not relevant;
3. There is no need to graduate the amount of a parking charge after an initial free period of parking has expired;
4. Local authorities make similar parking charges and there is no reason why the private parking industry can't;
5. A parking charge is an acceptable way to encourage turnover in car parks and to prevent motorists from leaving their cars for extended periods of time;
6. Parliament has supported (via the Protection of Freedoms Act) that such parking charges could be made so long as they are brought to the attention of the motorists at the time of use of a car park.0 -
To check if they are POFA compliant, can you give us the date of contravention and date on the NtK? They should be within a 14 day timeframe, (usually!)0
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All explained in the NEWBIES FAQ sticky (near the top of the forum thread list, one page back from this one, use the FORUM JUMP button to navigate there).
You need to read the sticky before asking further questions! :rotfl:
It was not really a question, it was an observation. The event known to us all as "parking in my own space" could not be further divorced from the circumstances in which Mr Beavis found himself.
I am surprised that even a muddled thinking PPC would reference it when it has absolutely no relevance whatsoever.
Thank you however for your advice, it is always welcome when an eminence gris such as your good-self takes the time to explain things to an arriviste such as myself.You never know how far you can go until you go too far.0
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