Settlement offer to F1rst Parking

Fruitcake

R9Green wrote: »

^ That has given me much more faith!


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!

It looks like you are getting the hang of things now.

Have you got a PoPLA code and if so, have you used the Parking Cowboys code checker on their website to see if it is a valid code?

I suggest you move GPEOL to last position as this is not now seen as the silver bullet to kill this off. However, any one of the other points should do the trick.

bazster

Fruitcake wrote: »

I suggest you move GPEOL to last position as this is not now seen as the silver bullet to kill this off.

Although hopefully it will be again by the time PoPLA adjudicates these.

Redx

I too would currently move the not a gpeol to the last point, immediately followed by the BEAVIS CASE info in blue from the NEWBIES sticky thread

ColliesCarer

ColliesCarer wrote: »

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

You need to include an extra challenge on the point highlighted in my quote above - those two challenges are the ones most frequently winning POPLA's at the mo (when the PPC bothers to submit evidence that is).

F1rst parking are not the landowner and unless their contract with the landowner assigns them proprietary rights they have no locus standii (i.e. do not have the right to pursue payment of charges through the courts in their own name, nor to form contracts with drivers)

see point 2) of the POPLA in this thread for wording you could half inch but I would leave out the couple of paragraphs starting
"In that case the Judge found that, as the Operator did not own any title in the car park..... up to .........and then try to paint that profit as a perpetual loss."

as that is more about the validity of the charge and doesn't really support the no locus standii point very well.

https://forums.moneysavingexpert.com/discussion/comment/68228489#Comment_68228489

and I would also suggest this order to help the assessor hone in on a winning point - then they don't need to even consider the rest

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

followed by the blue bit from Newbies post #3 (as Redx has advised)

R9Green

The deadline is tomorrow, so any last minute changes guys before I get this sent off?

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

1) 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'.

2) Contract with Landowner - no locus standii
F1rst Parking LLP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the underacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between F1rst Parking LLP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013

I challenge this Operator to rebut my assertion that their business model is the same 'nonsense', and is unenforceable. F1rst Parking LLP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

3) 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.

4) 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.

5) 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.”

6) 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.

7) 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.

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.

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.

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.

Thanks in advance!

Redx

looks good to me , but wait for other replies, but do not miss the popla deadline date !!

Umkomaas

(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))

This is normally a ParkingEye NtK statement. Is it also the case with F1rst Parking's NtK?

If you're going to dismantle their NtK to remove Keeper Liability, then it needs to be as a result of what FP has included in their NtK, rather than a random copy and paste from some other POPLA appeal (ParkingEye) found on the forum.

If FP are using those words in their NtK - ignore me and send it away to POPLA.

R9Green

So today I've just received two letters from Debt Recovery Plus Ltd... I've appealed all the NTK's received to POPLA, and yet they're requesting £150.

The parking charge date, and notice no. doesn't match any of the ones I received on the NTK's, so I'm very confused; either way I never received NTK's for the two they're requesting debt recovery from, otherwise I obviously would have appealed to POPLA.

Now what?

EDIT: I found the parking tickets themselves with the code, but never received the NTK for those two.

Umkomaas

Complaint time to the BPA (and copy to the DVLA) - contacts in post #6 of the NEWBIES FAQ sticky.

Send copies of all documentation and ask that an investigation is opened with immediate effect.

Often the BPA (possibly the DVLA too) rattling cages can lead to fairly swift cancellations by the PPC. Another avenue of attack!

The_Deep

Never conduct any business of this nature by telephone, always start a paper trail, courts love paper trails.