POPLA Appeal template wording

tibbs68

Hi,
A big thanks to everyone who supports this fantastic forum with their time and effort, it's been a great source of info and advice.

I've read the FAQs and followed as instructed up to this point but would appreciate advice on the wording for the appeal to POPLA.

Case: Pub car park close to son's school often used by parents as a means to walk kids safely into school. Signs went up weeks ago indicating no parking. Attendant then appeared few weeks ago around 850am to issue several PCNs to parents.

Appeal seems best based on GPEOL as parked there for 10 mins max when the pub is not even open for business.

Have put the following together as 1st draft based on other appeal letters seen and advice given here:

PCN No: XXXXXX
POPLA Code: XXXXX

I am the registered keeper and I wish to appeal a recent parking charge from Millennium Parking Services (MPS). I submit the points below to show that the driver is not liable for the parking charge:

No genuine pre-estimate of loss

In ParkingEye v Smith at Manchester County Court in 2011, claim number 1XJ81016, the original claim of £240 was deemed an unrecoverable penalty, unrelated to damages incurred and the only sum that could be recovered was deemed to be £15 (the amount of the pay and display fee for more than one visit). The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable.

As the PCN sum is massively inflated, I require MPS to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

The ParkingEye Notice to Keeper alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This might be, for example, a reasonable sum based purely upon the alleged lost parking revenue, or even loss of retail revenue at a shopping centre if another car was prevented from parking. However, this is not the case because the occupants of the car recall that the car park had a large number of available parking spaces and at the time of the alleged parking and that the premise’s was not even open for business.

The Operator cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks.

Given that MPS charge the same lump sum to any alleged contravention whether the premises is open or not, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss caused by this incident in this car park.

The DfT Guidance and the BPA Code of Practice require that a parking charge for an alleged breach must be an estimate of losses flowing from the incident. MPS cannot change this requirement so they have no option but to show POPLA their genuine pre-estimate of loss for this charge, not some subsequently penned 'commercial justification' statement they may have devised afterwards (since this would not be a pre-estimate):

The British Parking Association Code of Practice uses the word 'MUST':
"19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be proportionate and commercially justifiable. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.''

Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Supreme Court by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:

''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”.

This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

In the appeal rejection MPS claim the recent case Parking Eye v Beavis heard at the Court of Appeal gives justification to their claim.

MPS cannot reject the appeal on the basis of the most recent Beavis decision, as it has attempted to do so, pending the outcome of the Beavis case at the Supreme Court

Penalties imposed in my local authority car parks are £60 and this is reduced even after appeal by 50%.

Therefore I contend that the charge imposed by Millennium Parking Services is indeed 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.

Redx

at the moment not a gpeol cases are being stayed by popla for several months

plus you need to put in the other legal arguments AS WELL !

with not a gpeol the last point

get some inspiration from these previous appeals

http://forums.moneysavingexpert.com/showpost.php?p=62180281&postcount=15

you also want to add

POFA 2012 flaws with the NTK
NO CONTRACT
POOR SIGNAGE

anything else you can think of (not mitigation, so we dont need to know "what happened on the day and neither do popla , its irrelevant)

so good start, must try harder

ps:- you have 2 parking companies in your appeal above, there willl only be one, so proof read what you type

ColliesCarer

^^^^^^^ as Redx has said ^^^^^^^

Plus - Reading between the lines - it sounds like you appealed the windscreen notice PCN (aka Notice to Driver) hopefully as KEEPER not driver though.

Is that the case or did you wait for the postal notice to keeper (NtK)?

If you appealed the windscreen notice AND you appealed as Keeper -
when was the notice issued?
when did you 1st appeal?
The reason I'm asking is - you may have a slam dunk winning point but to best advise you we need answers to the questions I've raised.

Also the opening paragraph of the draft in your post needs to be changed:

To either delete the reference to the driver e.g.
"I am the registered keeper and I wish to appeal a recent parking charge from Millennium Parking Services (MPS). I submit the points below:

or include the keeper e.g.

"I am the registered keeper and I wish to appeal a recent parking charge from Millennium Parking Services (MPS). I submit the points below to show that neither the keeper nor the driver is liable for the parking charge:"

tibbs68

Thanks RedX & ColliesCarer for feedback. Will use example POPLA appeals to update my appeal wording.See further info in red below as requested.

ColliesCarer wrote: »

^^^^^^^ as Redx has said ^^^^^^^

Plus - Reading between the lines - it sounds like you appealed the windscreen notice PCN (aka Notice to Driver) hopefully as KEEPER not driver though.

Is that the case or did you wait for the postal notice to keeper (NtK)? Yes appealed windscreen notice

If you appealed the windscreen notice AND you appealed as Keeper -
Appealed naively with mitigation stating "You issued me with a PCN"
when was the notice issued? 24/6
when did you 1st appeal? 29/6 in writing
The reason I'm asking is - you may have a slam dunk winning point but to best advise you we need answers to the questions I've raised.

Also the opening paragraph of the draft in your post needs to be changed:
OK will amend
To either delete the reference to the driver e.g.
"I am the registered keeper and I wish to appeal a recent parking charge from Millennium Parking Services (MPS). I submit the points below:

or include the keeper e.g.

"I am the registered keeper and I wish to appeal a recent parking charge from Millennium Parking Services (MPS). I submit the points below to show that neither the keeper nor the driver is liable for the parking charge:"