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Please review my POPLA Appeal
Paddyshepherd
Posts: 33 Forumite
Hi all,
As per the title I'd like someone to look over my popla appeal before I send it. It is with reference to a PCN issued by LDK security but PCS have managed it and issued the Notice to keeper, using LDK as their creditor. I have based a lot of the wording on that found in the APCOA ticket thread as it suited my situation. Please have a read if you have time and advise of any changes. (I appreciate I may need to add the text regarding the Beavis case to the first point)
Dear POPLA,
This communication refers to PCN No: as issued to vehicle registration: . I am the registered keeper of this vehicle and I am not liable for this PCN. I wish to appeal on the grounds numbered 1-6 as outlined below:
The charge is not a genuine pre-estimate of loss;
Parking Collection Services have demanded a fee of £125 to be paid in relation to the alleged parking offence, without providing any evidence of how this fee has been calculated. The fee demanded falls foul of the BPA code of practice, of whom LDK Security (LDK Security are the operator of the site and PCS have issued the NTK on their behalf) claim to abide by. In addition, PCS’s charge represents liquidated damages for breach and as such must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable. PCS cannot demonstrate any initial loss caused by the parking event and even if they do try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.
In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.
Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’
In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.
Further, if PCS claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put PCS to strict proof that a GPEOL was ever discussed and decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.
The signage was not seen before parking - so there was no valid contract formed between PCS and the driver
A lack of signs at the entrance to a car park, and unclear wording, creates no contract. Since receiving the NTK, I have visited the site where PCS have claimed the alleged offence took place, and have noted that there are no signs shown on the entrance to the car park from the public highway, and as such a contract was not formed between the driver and LDK Security (whom PCS have issued the NTK on behalf of), before the vehicle was parked. During this visit to the site in question, I did notice signage within the car park. These signs were set at an elevated height in small print font and were not reflective. It would therefore be impossible to assume that the driver saw these signs from within a moving vehicle, and as such no contract could be formed. I put PCS to strict proof otherwise; as well as a site map they must show photos. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. PCS/LDK signs in this car park are and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) PCS has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
Lack of standing/authority – neither LDK nor PCS has shown evidence that they have permission to issue parking charges on this land.
I have been given no evidence as to the authority that LDK or PCS have on this land. The car park in question is a large plot of land of which more than one company is responsible for. Part of the car park is owned and maintained by Middlesbrough College, who do authorise LDK to operate on their property. However, the charge in question relates to a section of the car park which is operated and maintained by another company, and no evidence has been provided to show that LDK or PCS have the authority to operate on that car park as well. Therefore it would be perfectly reasonable to assume that LDK could be operating without due authority to do so, and I put this to PCS/LDK to prove otherwise.
Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
Under Schedule 4, Paragraph 8 of POFA 2012, strict guidelines are given for the issue of NTK documents. I have found that this Notice to Keeper falls foul of these guidelines as detailed below:
The “period of parking” is not shown (as required by POFA 2012 Schedule 4, paras 8(2)(a) and 8(2)(b)), nor a time given as to when the Parking Charge Notice was issued; only the date of issue of the alleged PCN is given.
The NTK document does not repeat the information given on the original parking charge notice (as required by POFA 2012 Schedule 4, para 8(2)(c)) It has also been noted that the charge of £125 that PCS are demanding is inconsistent with the £90 fee of which LDK claims to charge on their signage.
The NTK document also briefly mentions a reduced rate offer, but then does not give detail of what this offer consisted of, as required under
The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.
Unreasonable/Unfair Terms
I would assert that the charge being claimed by PCS is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''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...''
Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
Schedule 2 of the Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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".
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
Unfair view of original appeal
In addition to the points mentioned previously, I feel it is necessary to add that I do not believe that my appeal, as registered keeper, to PCS was appropriately reviewed. This is based on the fact that the response given was evidently generic and did not directly give response to any of the points made in the appeal. It would therefore be perfectly reasonable to assume that the appeal was not reviewed appropriately and that the PCS appeals procedure is flawed.
I contend it is wholly unreasonable to rely on barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event.
If this appeal is not successful then I hereby give notice to PCS that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.
Yours,
As per the title I'd like someone to look over my popla appeal before I send it. It is with reference to a PCN issued by LDK security but PCS have managed it and issued the Notice to keeper, using LDK as their creditor. I have based a lot of the wording on that found in the APCOA ticket thread as it suited my situation. Please have a read if you have time and advise of any changes. (I appreciate I may need to add the text regarding the Beavis case to the first point)
Dear POPLA,
This communication refers to PCN No: as issued to vehicle registration: . I am the registered keeper of this vehicle and I am not liable for this PCN. I wish to appeal on the grounds numbered 1-6 as outlined below:
The charge is not a genuine pre-estimate of loss;
Parking Collection Services have demanded a fee of £125 to be paid in relation to the alleged parking offence, without providing any evidence of how this fee has been calculated. The fee demanded falls foul of the BPA code of practice, of whom LDK Security (LDK Security are the operator of the site and PCS have issued the NTK on their behalf) claim to abide by. In addition, PCS’s charge represents liquidated damages for breach and as such must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable. PCS cannot demonstrate any initial loss caused by the parking event and even if they do try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.
In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.
Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’
In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.
Further, if PCS claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put PCS to strict proof that a GPEOL was ever discussed and decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.
The signage was not seen before parking - so there was no valid contract formed between PCS and the driver
A lack of signs at the entrance to a car park, and unclear wording, creates no contract. Since receiving the NTK, I have visited the site where PCS have claimed the alleged offence took place, and have noted that there are no signs shown on the entrance to the car park from the public highway, and as such a contract was not formed between the driver and LDK Security (whom PCS have issued the NTK on behalf of), before the vehicle was parked. During this visit to the site in question, I did notice signage within the car park. These signs were set at an elevated height in small print font and were not reflective. It would therefore be impossible to assume that the driver saw these signs from within a moving vehicle, and as such no contract could be formed. I put PCS to strict proof otherwise; as well as a site map they must show photos. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. PCS/LDK signs in this car park are and unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) PCS has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
Lack of standing/authority – neither LDK nor PCS has shown evidence that they have permission to issue parking charges on this land.
I have been given no evidence as to the authority that LDK or PCS have on this land. The car park in question is a large plot of land of which more than one company is responsible for. Part of the car park is owned and maintained by Middlesbrough College, who do authorise LDK to operate on their property. However, the charge in question relates to a section of the car park which is operated and maintained by another company, and no evidence has been provided to show that LDK or PCS have the authority to operate on that car park as well. Therefore it would be perfectly reasonable to assume that LDK could be operating without due authority to do so, and I put this to PCS/LDK to prove otherwise.
Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
Under Schedule 4, Paragraph 8 of POFA 2012, strict guidelines are given for the issue of NTK documents. I have found that this Notice to Keeper falls foul of these guidelines as detailed below:
The “period of parking” is not shown (as required by POFA 2012 Schedule 4, paras 8(2)(a) and 8(2)(b)), nor a time given as to when the Parking Charge Notice was issued; only the date of issue of the alleged PCN is given.
The NTK document does not repeat the information given on the original parking charge notice (as required by POFA 2012 Schedule 4, para 8(2)(c)) It has also been noted that the charge of £125 that PCS are demanding is inconsistent with the £90 fee of which LDK claims to charge on their signage.
The NTK document also briefly mentions a reduced rate offer, but then does not give detail of what this offer consisted of, as required under
The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'.
Unreasonable/Unfair Terms
I would assert that the charge being claimed by PCS is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''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...''
Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
Schedule 2 of the Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "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".
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
Unfair view of original appeal
In addition to the points mentioned previously, I feel it is necessary to add that I do not believe that my appeal, as registered keeper, to PCS was appropriately reviewed. This is based on the fact that the response given was evidently generic and did not directly give response to any of the points made in the appeal. It would therefore be perfectly reasonable to assume that the appeal was not reviewed appropriately and that the PCS appeals procedure is flawed.
I contend it is wholly unreasonable to rely on barely readable signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event.
If this appeal is not successful then I hereby give notice to PCS that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.
Yours,
0
Comments
-
I have skim read the above and it looks OK to me except it could do with a bit of tidying up.
Put in numbered bullet points such as
1) No GPEOL
2) Unclear signage
3) etcetera
Then number and underline the heading at the start of each relevant section.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
A bit of a 'wall of text' to comfortably check it closely, but if you haven't got it in already, you need to add the blue typeface text from post # 3 of the NEWBIES sticky as a final 'catch all' statement.
I'd redo your batting order and place No GPEOL as your last appeal point - you want POPLA to adjudicate positively on one of the other points, otherwise they may just immediately stay this for Beavis if GPEOL commences your appeal.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 -
Gents;
The appeal is in numbered bullets in the word document, for some reason it hasn't transferred over. I will be adding that text I just hadn't done it at the time. I'll take that on board and put GPEOL at the end.
Thanks!0 -
Appeal updated and sent, will update when I get a response!0
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