Parking Charge Notice Received

Umkomaas

The_Deep wrote: »

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.

De rien, Monsieur! Passez une bonne journee!

AugustLeo

date of contravention = 25.04.2015
and date on the NtK = 28.04.2015


They didn't hang around. Although I didn't receive the NtK until 30.04.2015 - still within the 14 days.

AugustLeo

Hello again! I have read the sticky thing! Swapped the grounds around and added a paragraph to the bottom re the Beavis case. Please can you let me know your thoughts. I would ideally like to get this submitted tomorrow as the deadline is this Friday.


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:

• Non-compliant signage, unclear and inadequate
• No standing/authority to form contracts with motorists
• The charge is not a genuine pre-estimate of loss.
  
  1. 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.
  
  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. The charge is not a genuine pre-estimate of loss.
  
  £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.''
  
  I note that the Operator refers to the ParkingEye Limited v Beavis Judgment. This judgment related to a pay and display car park. The judgment is irrelevant in this particular case because my car was not parked in a pay and display car park. Nor are permits issued for parking there. 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.

Umkomaas

What about an ANPR paragraph where you really have to dismantle 'the man on a bike with a camera' not constituting real ANPR - which in itself is open to challenge on maintenance, accuracy, calibration - but a man with any old digi-cam - come on!

AugustLeo

I have bitten the bullet and submitted it.