Settlement offer to F1rst Parking

enfield_freddy

R9Green wrote: »

Okay, looks like I'll be appealing to POPLA then.

Is there genuinely a good chance of winning the appeals to POPLA? I mean he did park there knowing that it was breaking the terms, and the photos of the vehicle taken by the ticket warden show the parking terms in the background.

and have you checked if all the tickets are valid , how about loosing 5 of the 6 coz the scum broke the rules , HAVE YOU CONTACTED or do you intend to contact the DVLA to ask if they have applied for your details 6 SEPERATE times?

R9Green

^ Nope I have not.

Would I simply ring the DVLA, and ask if they have applied for the details of six separate times?

Mike172

How is POPLA 50/50? Surely its 100% win. I keep monitoring the form for failures and nothing ever fails unless its a POPLA appeal made 'outside the forum guidelines'.

UKCPM never fight me so I never get the chance to see the !!!!!!!! attempts made by a PPC.

bazster

Redx wrote: »

wot they said ^^^^^^^^^^^^^^^

popla is 50/50

Across all appeals, including the "my dog ate the permit" ones. Much better odds for appeals done properly, using the points you listed.

bazster

R9Green wrote: »

^ Nope I have not.

Would I simply ring the DVLA, and ask if they have applied for the details of six separate times?

No, you'd have to write to them. But if your son is the vehicle registered keeper it's a red herring, just forget about it unless you want to start doing battle with DVLA also over a potential DPA breach. It certainly will not help at PoPLA (unless you are the registered keeper and not your son).

enfield_freddy

R9Green wrote: »

^ Nope I have not.

Would I simply ring the DVLA, and ask if they have applied for the details of six separate times?

no , but now at least your brain is in gear


you can ask @ FOI@dvla.gsi.gov.uk



ask a simple question like


how many times have "x parking" of "address" applied for info from the DVLA regarding my vehicle "xxx xxxx" , between the dates of x and y ,


signed and sent by the owner of the car , with a clear return email address

Redx

popla issued those figures mike !

with help from forums like ours, the ratio is much better for those members using our help

those who never come here may well lose and so the popla figures will never match MSE figures or pepipoo figures, goes without saying that a little help goes a long way

bazster

Mike172 wrote: »

How is POPLA 50/50? Surely its 100% win.

It's 50/50 according to PoPLA's figures, but that includes all the rubbish mitigation appeals. Forum-fuelled appeals still seem to be near 100%, with PoPLA now amusing itself by finding grounds other than GPEOL to allow appeals on!

ColliesCarer

bazster wrote: »

...... with PoPLA now amusing itself by finding grounds other than GPEOL to allow appeals on!

Yep agree - the two new lead contenders seem to be NtK not properly given for keeper liability to apply or no standing to pursue charges through the courts in their own name

@R9Green - if you use the Search the Forum function, select search posts and use F1rst POPLA as the search term you should find recent winning examples of POPLA's written by other ops like this one

https://forums.moneysavingexpert.com/discussion/comment/68479495#Comment_68479495

Select one and edit it to match your circumstances - then post it here for help refining it

R9Green

^ That has given me much more faith!

Dear POPLA,
I am the registered keeper of the above vehicle and I am not liable for this PCN. I wish to appeal on the grounds outlined in points 1 - 6, listed below:

1) The Charge is not a Genuine Pre-Estimate of Loss
2) The signage was not seen before parking, so there was no valid contract formed between First Parking and the driver
3) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
4) There is no Commercial Justification for the PCN
5) First Parking's appeal system is biased and unfair
6) The Terms of Contract are unfair


1) The Charge is not a Genuine Pre-Estimate of Loss
First Parking’s charge represents liquidated damages for breach of contract, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable.

Even if F1rst Parking try to suggest a small initial loss, this does not give them unconditional authority 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 not mentioned on the Notice to Keeper, so this cannot be ascertained) they certainly cannot claim the grossly inflated amount of £50. 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 First Parking - 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 F1rst Parking claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put F1rst Parking 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.


2) The signage was not seen before parking, so there was no valid contract formed between F1rst Parking and the driver
I believe that there is a lack of adequate signage at the car park. The signs are too high up, are not prominently shown, and the terms and conditions are in far too small a font to reasonably be read from within a vehicle. I believe that these signs do not meet the BPA's code of practice. I put F1rst Parking to strict proof otherwise. As well as a site map, they must also show photos as evidence. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. F1rst Parking's signs in this car park are sparse 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) First Parking has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.


3) The Notice to Keeper is not properly given and does not establish keeper liability under the Protection of Freedoms Act 2012
The following points (i - iv) may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4:
(i) The 'period of parking' is not shown, only the date of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b));
(ii) It specifies that there are unpaid parking charges due to “either not purchasing the appropriate parking time or by remaining at the car park for longer than permitted”, even though neither of these statements are true (in contravention of POFA 12 Schedule 4 para 9(2)(c)).
(iii)It does not inform the keeper of any discount offered for prompt payment (as required by POFA 12 Schedule 4 Para 9(2)(g))

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'.


4) There is no Commercial Justification for the PCN
In the rejection letter issued by F1rst Parking on 15/06/2015, it is stated that the PCN amount is "based on commercial justification". The charge being claimed by First Parking is without commercial justification since the car park is a University car park and the majority of those parking in it are students at the University. Therefore, there are no commercial losses which can be attributed to a potential customer not being able to find a parking space. I would assert that those who are wishing to park have already paid the landowner in the form of tuition fees. If the charge is genuinely 'based on a pre-estimate of loss and calculated using company records as stated by F1rst Parking', then I request that F1rst Parking divulge these calculations.




5) F1rst Parking's appeal system is biased and unfair
In the rejection letter issued by First Parking on 15/06/2015, it is stated that "A warning has previously been issued to you for the same offence". I contend that no such warning was ever given. I put F1rst Parking to strict proof that such a warning was given either in writing or verbally (via CCTV evidence) to the driver of the vehicle in question. If evidence is not able to be provided then this seriously damages the credibility of F1rst Parking and its representatives, and the use of such a blatant lie should be reported by POPLA to the BPA. I believe that this will show that the wording used in the appeal rejection is not actually based on any real review of evidence, but is in fact a standard reply to all parking appeals, and as such is simply an attempt to maximise profit without regard to fair process.


6) The Terms of Contract are unfair
In the rejection letter issued by F1rst Parking on 15/06/2015, it is stated that "F1rst Parking have also ensured that their parking charge amount is not punitive". I would assert that this is a lie and the amount being charged is absolutely punitive, as can be clearly deduced from points 1 and 4 above. 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.”

I contend it is wholly unreasonable for a company to attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put F1rst Parking 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 F1rst Parking that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.

Yours Faithfully,
The Registered Keeper.

I believe I've removed the points which are irrelevant to these tickets, if I've missed anything please let me know. Also if anyone has any suggestions to make it better, I'm all ears!