Fresh help with POPLA please?

[FONT=&quot]Hi everyone,

This forum helped me back in July last year to successfully appeal a parking charge from UKPC and we are now eternally in your debt. Unfortunately though, my mother-in-law now has trouble with them for a vehicle parked in a residential parking area in a visitor's space without the correct permit. I'd please like to increase our debt to you all...

I have tried my best to understand the changes that have occurred since our last appeal and have incorporated/removed these into/from the appeal letter, which I have pasted below. I would really appreciate any help you can offer as I have tried my best but am not confident I've got it all covered with the changes.

Thank you so much in advance.[/FONT]




Dear POPLA Assessor,

Re: UK Parking Control Ltd, parking charge notice number: XXXXXXXXXXXXX
Vehicle registration number: XXXX XXX

POPLA Reference number: XXXXXXXXXX

I am the registered keeper of the vehicle with the above registration number and this is my appeal:


1. The parking charge is not a genuine pre-estimate of loss.
UK Parking Control Ltd claims that the charge is for ‘failure to comply’ with its ‘terms of parking’ and that the vehicle was ‘in breach’, so this operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park is a free car park that has no charging facilities whatsoever. The vehicle was parked in a marked visitors bay within The Hamptons housing development, using a Hamptons visitor’s permit.

Therefore, UK Parking Control Ltd cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back-office functions, debt collection, etc., cannot possibly flow as a direct consequence of this parking event. UK Parking Control Ltd would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

The charge of £100, being sought for an alleged breach of the parking terms, namely ‘parked in a permit area without displaying a valid permit’, is disproportionately high. Consequently I contend and the BPA code of practice states, a charge for breach must be based on the genuine pre estimate of loss. The Office of Fair Trading has stated to the BPA that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.

Christopher Adamson stated in a POPLA appeal against VCS Ltd stated: ‘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... that a charge for damages must be compensatory in nature rather than punitive.’

The case at hand involves a private parking area for residents with allocated spaces and visitors’ spaces. The vehicle was parked in an allocated visitor’s bay, which incurs no fees for parking at any point. Therefore, there is no loss to anyone. As the charge in this case is the same lump sum charged for any alleged ‘breach’ (irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this parking bay, etc.), it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre-estimate of loss in this case.

In addition, POPLA Assessor Christopher Adamson stated in June 2014 upon seeing Vehicle Control Services’ effort at a loss statement – likely to be broadly similar to any effort made by UK Parking Control Ltd – 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.’

In another upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs that were made up of general business costs was commercially justified. She said:

‘the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant.’

This case is the same and UK Parking Control Ltd is at best an agent, with a bare contractor’s license to put up signage and ‘issue tickets’. The vehicle was clearly parked in a visitors bay and it is therefore clear that this parking charge is punitive and no consideration has been given to calculating a genuine pre estimate of loss in this case. Therefore, I require the operator to submit a full breakdown of its genuine pre-estimate of loss to show how the loss is calculated in this particular parking area and for this particular alleged breach. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified nor proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2. No contract exists with landowner to pursue charges
The operator does not own the land in question and has provided no evidence that it is lawfully entitled to demand money from a Driver or Keeper. It owns neither proprietary nor agency rights and holds no title or share of the land. I do not believe that it has the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in its own name as creditor. I believe that at best it may hold a site agreement limited to issuing tickets and as such I require that it provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA Code of Practice, this contract must specifically grant the operator the right to pursue parking charges in its own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:

a) Some parking companies have provided ‘witness statements’ instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the operator which would obviously affect any ‘loss’ calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the operator to pursue charges in its own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was ‘not valid evidence’. If UK Parking Control Ltd provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Even if a basic contract is produced that mentions parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the operator and the Landowner containing nothing that UK Parking Control Ltd can lawfully use in its own name as mere agent that could impact on a third party. I therefore respectfully request that my appeal be upheld and the charge dismissed.

3. Unreasonable/Unfair Contract Terms.
There is no contract between UK Parking Control Ltd and I but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. According to 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...’

I believe UK Parking Control Ltd is in breach of the Unfair Terms Act 1977 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.

This is confirmed in the Office of Fair Trading’s extensive guidance on the UTCCRs 1999. The guidance includes the following advice:

‘The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a core term. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option.

‘The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term, or which purports to define what the consumer is buying, will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.’

This charge is not exempt from the test of fairness then. It represents an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’ I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. This charge caused a significant imbalance in the parties' rights and obligations arising under the contract, which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts. For example, in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G, it was stated that:

‘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. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.

4. Unclear and non-compliant signage not forming a contract
There are no clear sings in the parking area near the space the vehicle was photographed in. Any upright signs near to the visitors parking bay were unlit and were not seen by the occupants of the car. I believe that UK Parking Control Ltd places its signs so high that terms would only be legible if a driver got out of a car to try to read them. Any photographs supplied by the operator to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and flash and the angle may well not show how high the signs are. As such, I require UK Parking Control Ltd to state the height of each sign in its response and to show contemporaneous photographic evidence of these signs in the dark without the aid of flash photography. The operator also needs to show evidence in the way of a signage map on this point – specifically showing the location of the signs and whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed do not alter the contract, which must be shown in full at the entrance.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms beforehand. Nothing about this operator's inflated ‘parking charges’ was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied. 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.

There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third-party ‘charge’ foisted upon legitimate motorists who are not ‘customers’ of UK Parking Control Ltd but residents or visitors of the very buildings that are home to these parking spaces; they are not expecting to read a contract when they park at their home, or visit the home of friends or family. 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):

‘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.’

5. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Further to the above points, the notice I have received, as the registered owner of the vehicle, makes it clear that UK Parking Control Ltd is relying on Schedule 4 of the Protection of Freedoms Act 2012. UK Parking Control Ltd has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be UK Parking Control Ltd or its client, its debt-collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...’.

The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but ‘identified’. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, UK Parking Control Ltd has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under the Protection of Freedoms Act 2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is ‘fundamental to establishing liability’ for a parking charge, stating: ‘where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.’

As per the above points, UKPC’s charge has no legal basis and I ask that the assessor nullify the parking charge notice issued by UK Parking Control Ltd. 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 be adjourned pending the Beavis case.

Thank you for your time and I look forward to hearing from you.
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Replies

  • RedxRedx Forumite
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    looks reasonable to me :)

    wait for other replies if you have time before the popla expiry date
    Newbies !!
    Private Parking ticket? check the 2 sticky threads by coupon-mad and crabman in the Parking Tickets, Fines & Parking Board forum for the latest advice or maybe try pepipoo or C.A.G. or legal beagles forums if you need legal advice as well because this parking forum is not about debt collectors or legal matters per se
  • UmkomaasUmkomaas Forumite
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    A couple of points:

    1. You mention unlit signage. Did the parking event take place at night? If not, then the unlit signs sentence is redundant.

    2. Reorder your batting line-up of appeal points. Move the 'NtK not properly given.....' to point # 1, and your 'GPEOL' to point # 5, leave the final 'unconscionable and extravagant' paragraph where it is as it falls more naturally after 'GPEOL' rather than 'NtK'.
    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.
  • Redx wrote: »
    looks reasonable to me :)

    Thanks!
    Umkomaas wrote: »
    1. You mention unlit signage. Did the parking event take place at night? If not, then the unlit signs sentence is redundant.

    2. Reorder your batting line-up of appeal points. Move the 'NtK not properly given.....' to point # 1, and your 'GPEOL' to point # 5, leave the final 'unconscionable and extravagant' paragraph where it is as it falls more naturally after 'GPEOL' rather than 'NtK'.

    For the sign it was actually in the morning when the ticket was issued. I'll amend that section, silly oversight.

    I will rearrange also, it does read better in the other order.

    Once I've changed these would you say I have a reasonable chance at POPLA, as best I can do now, or is there anything I might need to add?

    Thanks again for your help.
  • UmkomaasUmkomaas Forumite
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    It looks pretty comprehensive. You need to look out for the PPCs Evidence Pack (EP) which they send to POPLA and copy to you (often by email, so please also check your email junk box as sometimes the EP has slipped into that, and where you might otherwise miss it).

    The EP isn't normally sent until about a week before the date POPLA advise you that your appeal will be dealt with. So some way off yet as your POPLA appeal is only likely to be assessed around 5-6 weeks after submission.

    On receipt of the EP, you will need to thoroughly read it and rebut any points you have issues with, you disagree with or which are incorrect - normally plenty to go at! You can really destroy a PPCs position with a surgical rebuttal.

    Here's a couple of links showing rebuttal examples - I'm just 'parking' (pardon the pun) them here for you to be able to find them easily, when needed.

    http://forums.moneysavingexpert.com/showthread.php?p=67385911&posted=1#post67385911

    http://forums.moneysavingexpert.com/showpost.php?p=67402366&postcount=26

    HTH
    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.
  • The_DeepThe_Deep Forumite
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    I have not read it, (too long, dodgy Spanish WiFi, beach beckons), but if the Beavis decision is mentioned, it has no relevance whatsoever, If UKPC mention it, come back to me.
    You never know how far you can go until you go too far.
  • Umkomaas wrote: »
    You need to look out for the PPCs Evidence Pack...
    Here's a couple of links showing rebuttal examples - I'm just 'parking' (pardon the pun) them here for you to be able to find them easily, when needed.

    Thank you so much! I'll be sure to keep an eye out for the email from UKPC. Hopefully I can address any issues myself, but if not I shall return here.
    The_Deep wrote: »
    but if the Beavis decision is mentioned, it has no relevance whatsoever, If UKPC mention it, come back to me.

    Thank you. I had the previous Beavis in from an older appeal but took it out - this one only has reference to it as suggested in the Newbies sticky.
  • edited 3 August 2015 at 9:23AM
    Jacob's_DadJacob's_Dad Forumite
    22 Posts
    edited 3 August 2015 at 9:23AM
    Edit: I originally quoted Umkomaas and The Deep but don't want to imply they have to help or are they only help I'll take. I know this forum is full of a wealth of knowledge that could help.

    I have had UKPC's evidence pack through from POPLA and they did include reference to Beavis. I'm really stuck on what to say, but I have included the bit about putting it on hold again, just in case. I haven't pasted UKPC's entire evidence pack as it is too big, but I've put below their text about the Beavis case and then my entire response - I responded to everything in there, including the photos.

    I would really appreciate if you could take a look at my response and let me know if it is ok, but if you are too busy could you please just help me with the Beavis bit, I'm really really stuck there!

    Thank you so much in advance.

    UKPC 'evidence'

    2.) Genuine Pre-Estimate of Loss.
    In the recent case of ParkingEye Ltd v Beavis [2015] EWCA Civ 402, the Court of Appeal unambiguously clarified the common law’s position on both the nature and enforceability of parking charges. It is now clear that a parking charge having the predominant purpose or intention to deter is ‘not sufficient in itself to invalidate [the charge]’. The principle test that should be used is whether the sum charged is ‘extravagant and unconscionable’ (see para 51). In the case, it was found that the parking charge was not extravagant and unconscionable and thus fully enforceable under the rules about contractual penalties (see para 31). This ruling now represents the most authoritative judgement in the area of parking law and must be strictly adhered to.

    In undertaking this ‘principle test’, an ‘excessive concentration’ on the difference between the amount payable under the charge and the measure of actual loss sustained has been strongly ‘deprecated’ (see para 18). The Court of Appeal understood that in certain circumstances parking operators may not suffer any ‘direct financial loss’ from parking contraventions. However, even in these circumstances, the Court recognised that such contraventions can cause an ‘indirect loss’ to parking operators. For example, the inability of an operator to prevent breaches of parking restrictions would likely result in the loss of its service contract with the landowner (see para 25).
    Though the Court recognised that it is theoretically possible to charge motorists more ‘modest amounts’, it would be ‘wholly uneconomic to enforce such charges by taking legal proceedings against them’ (see para 25). Further, the Court appreciated that charges must be large enough to act as a ‘deterrent’ and large enough to ‘justify collection’ (see para 30).

    Despite indications that a charge is extravagant and unconscionable, other factors may be present which ‘rob’ the charge of this character (see para 27). In prior cases, it has been the case that only commercial factors or justifications have been considered. However, in Beavis, the Court of Appeal stated that such charges can be justified using other considerations, such as ‘social’ factors, due to the fluidity of a ‘rule grounded in public policy’ (see para 27). Relevant public policy factors were highlighted by the Court when it stated that deterrent charges can be beneficial to drivers, shopkeepers and ‘the community as a whole’ (see paras 38 and 45). The Court also found that Parliament’s enactment of Schedule 4 of the Protection of Freedoms Act 2012 strongly supports the conclusion that the legislature considered it to be ‘in the public interest’ that parking charges be
    valid and enforceable (see para 28).

    Following the test of extravagance and unconscionability, as well as taking into account the applicable public policy factors, it is without doubt that your parking charge is wholly valid and fully enforceable.

    My response to send to POPLA

    This letter is written in response to the ‘evidence pack’ provided by UK Parking Control (herein UKPC) in relation to the above POPLA appeal. The pack is full of inconsistencies and inaccuracies and, indeed, downright fabrications, which are being used to mask the truth; that is, that the parking charge notice was incorrectly issued and should be cancelled immediately.

    The following are responses to the bulk of UKPC’s ‘evidence pack’, in the order that the points appear in said pack:

    1) The permit on display was valid
    It was for parking spaces in the XXXX roads (note, these roads are not spelled XXXX as seen in UKPC’s documentation). These roads are part of XXXX development, as evidenced by the photograph attached to this letter (photograph 1 below). This photograph, taken 31st July 2015, clearly shows the entrance into the housing development with the words XXXX’ printed on it, indicating that one is entering XXXX, contrary to UKPC’s claim. Their photographic ‘evidence’ with the date of 07/07/14 is clearly out of date and intended to confuse and mislead.

    The very same permit is used for another parking area on XXXX (stated clearly by UKPC as part of the parking zone) as can be seen in the second and third photographs (photograph 2 and 3 below). This photograph shows both vehicles parked in the visitors’ spaces using these permits. If time would allow, it would be possible to show countless cars using these permits in this area. A third photograph shows a sign for XXXX – one of the roads in the permit area identified by UKPC – with a noticeboard for residents of the area labelled XXXX (photograph 4).

    The fact that UKPC has misspelled the road names and is confused about the geographical locations of the parking areas clearly indicates the lack of knowledge of the area, or worse, its attempt to mislead POPLA about the parking situation. The parking permit was clearly issued by mistake, but instead of admitting this as an honest mistake the company is trying to extort money out of me.

    2) The fine, regardless of whether it is at £60 or £100, is not a genuine pre-estimate of loss by any stretch.

    UKPC claims that they have asserted the charges are a genuine pre-estimate of loss, and this is given as the justification that the charge is a genuine pre-estimate of loss.
    UKPC has failed to provide any evidence as to how the figures they quote are a genuine pre-estimate of loss. There is no attempt by UKPC to provide a clear and detailed breakdown of their estimate.
    ***Mention Beavis here?***

    3) No contract with landowner
    UKPC has made no attempt to prove in any way shape or form that it has any legal contract with the owner or occupier of the land that authorises it to enter into a contract with drivers entering the land. It has not in any way confirmed that parking management has been contracted to UK Parking Control Ltd. In order to do this, UKPC will need to provide an unredacted copy of the contract that clearly shows this.

    Some parking companies have in the past provided witness statements instead of the appropriate contract. In this case, UKPC has not even done that. Even if it had, there is no proof that the alleged signatory has ever seen the contract or that they are employed by the landowner. Such a statement would not show whether any payment has been made to the operator that would affect any ‘loss’ calculations. It also would not serve to provide proof that UKPC’s contract includes the necessary authority required by the BPA Code of Practice to allow it to enter into contracts with drivers and pursue charges as a creditor.

    Therefore, and as I am sure POPLA is aware, a witness statement is not valid ‘evidence’. Should a basic contract be produced, the lack of ownership or assignment of title or interest in the land reduces and contract to one that exists simply on an agency basis and therefore would contain nothing that UKPC can lawfully use in their name as mere agent that could impact on a third party.

    4) There was no consideration or acceptance of contract
    Driving into the parking space the driver would be unable to see the sign as it is placed too high above the parking space. Reversing into the space, the driver would be unable to see the sign because it is positioned at an awkward angle to the space. As such, the signage does not comply with the BPA’s code of practice. It would be impossible for the driver to see the terms and conditions of parking, when parking, and so they are not, as UKPC claims, ample, clear or in line with the BPA’s Code of Practice. Every sign that UKPC has placed around the parking area (of which there are not as many as their fabricated ‘datestamped’ photographs show) is at a height or angle to the roadway that means it is neither clear nor prominent. The driver was therefore not bound by any terms and conditions claimed by UKPC when parking or remaining on site.

    Further points addressed by UKPC relating to the POPLA appeal

    1.1) UKPC has not identified itself as the creditor, having not named itself as such. As pointed out, all they have done is provide their name, address and contact details, etc. These do not show they are the creditor, they merely make a demand for payment in an attempt to extort money out of me. The letters sent to me do not identify the creditor as required by the Protection of Freedoms Act 2012 Schedule 4 papa 8(2)(h) and as such do not identify the creditor nor do they imply keeper liability. The fact that some of this information may be implied by a reader familiar with the legal context of parking does not mean that the documentation created by UKPC is compliant.

    2) To state that ‘it is well known to drivers’ that ‘it is usual practice throughout the industry to operate on standard form agreements’ is again a massive assumption and wholly unacceptable. It cannot be assumed that a driver is aware of standard form agreements and worse again to think it is well known to anyone.

    The following are rebuttals of the Parking Charge Details and Other Photos supplied by UKPC

    Site Photos
    These are all dated 07/07/2014 and as such are somewhat outdated. They add nothing to this evidence pack apart from to aid in the attempt to use smoke and mirrors to confuse evidence with suggestion. All of the photographs are ‘taken on the same day’, yet none have time stamps as the previous photographs do. They also show two different weather conditions and the UKPC vehicle parked in multiple spots around the roads. These roads are so close together it seems unfeasible that the vehicle would have been driven and parked, driven and parked, etc., as the UKPC employee moved several metres around the development. Indeed, two of the photographs, included with my rebuttal (photograph 5 and 6), contradict one another. One shows speedbumps in the road. The next, taken from a different angle but of the same section of road, are missing the large speedbump. This shows clearly that UKPC has fabricated the dates on the photographs in a disgusting attempt to trick myself and POPLA into thinking they have genuine photographic evidence.

    Photographs dated 04/03/2015 07:47:22 and 07:47:34
    Clearly show the permit displayed on the dashboard, clearly visible through the window of the vehicle. As mentioned previously, the same permit can be seen in other cars on XXXX in the attached relevant photograph taken on 1st August 2015.

    Photographs dated 04/03/2015 07:47:45 and 07:47:52
    This ‘evidence’ is irrelevant to this case. The photographs show an NHS parking permit that has no relevance whatsoever to the parking areas. These are included simply as an attempt to muddy the waters and make the ‘evidence pack’ seem more comprehensive than it really is.

    Photograph dated 04/03/2015 07:48:21
    Shows the vehicle, displaying a visitor’s permit and parked in a visitor’s space. The photograph is stretched, but also shows the high positioning of the signage at this particular point, showing how difficult the signage is to read.

    Photograph 04/03/2015 07:48:34
    Shows a very sharp angle from which the signage was photographed by UKPC, again highlighting the fact that the signage is difficult to read from the ground. The UKPC employee taking the photograph couldn’t even get the camera high enough to take a photograph level with the signage – how could a driver be expected to read it while in their vehicle?

    Site Plan and boundaries photograph
    This photograph as submitted by UKPC clearly shows the section of roads that the vehicle is depicted as being parked in. The red circle added by me highlights another car park in the same stretch of road (XXXX in this case) where vehicles use this permit – these vehicles are shown in photographs 2 and 3 below)

    Signage and vehicle
    This evidence merely shows that UKPC’s signage does not comply with the BPA code of practice. The signage is clearly too high to be seen by the driver of a vehicle when parking in the space. It is also angled so as to make reading it even harder, and with the small fonts used it would not be possible to read the signage while in a moving car.

    As I stated in my previous correspondence the charge is unconscionable and extravagant and unrelated to local penalty charge levels in the area. It has, in fact, been levied despite the fact that the vehicle had the appropriate permit displayed. It is also believed that the Supreme Court’s decision in Parking Eye vs Beavis will have an impact on the outcome of this POPLA appeal. As staed in my previous correspondence, if UKPC does not cancel their speculative and disputed invoice and/or if there is no other ground upon which the appeal can be determined, I ask that my case be adjourned pending the Beavis case.
  • OK, so it was a shame that no-one could help with the rebuttal but I've sent it in. I'll come back when I hear from POPLA. I guess worst case it should be stayed until the Supreme Court decision.
  • UmkomaasUmkomaas Forumite
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    hobrucker wrote: »
    OK, so it was a shame that no-one could help with the rebuttal but I've sent it in. I'll come back when I hear from POPLA. I guess worst case it should be stayed until the Supreme Court decision.

    Just back from holiday!

    The workload shared by a mere handful of regulars is quite often pretty onerous. Sometimes it's just not possible, with so many to help, to go through detailed, lengthy text blocks to check back through the entire thread, analyse wording, context and current legal perspectives to give a detailed critique.

    We try to help as much as possible, but there comes a time when the OP has to move it on themselves.

    A skim read (and I mean a skim read) and it looks pretty comprehensive. Let us know the outcome. You'll be pretty experienced after this. Come back and help. Every contributor helps others and gives PPCs more to think about!

    Pay them back for the stress they've caused you.
    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.
  • Umkomaas wrote: »
    We try to help as much as possible, but there comes a time when the OP has to move it on themselves.

    Of course, and I appreciate all of the help I have received. That's now two speculative invoices cancelled, both from UKPC in our own residential parking area. I have added the win to the sticky in the forum with a link back to here in case the appeal is useful.
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