Kernow Parking Solutions POPLA Appeal

Cactus32

Hi,

I received a PCN while parked in Mousehole in Cornwall. It was a hire car so sent appeal to get POPLA code and hire car company out of the equation.

I have put my POPLA appeal together below based on info on the forum. Point 1 is based on some of the posts I have read but not sure if I need to elaborate more on this. I wasn't sure how to incorporate the statement about the Beavis case so have just included at the end.

Any advice on what I have will be appreciated.

Thanks.

Kernow Parking Solutions (KPS) PCN, Serial No xxx
POPLA Code: xxx

As the vehicle in question was on lease under my signature on the date this Parking Charge Notice was issued I am the 'keeper' as defined in the Protection of Freedoms Act 2012. I submit the points below to show that I am not liable for the parking charge:

1) No company exists called “Kernow Parking Solutions”
2) No contract with landowner
3) No genuine pre-estimate of loss
4) Unreasonable / Unfair Terms
5) The Parking Charge Notice does not comply with Schedule 4 of the Protection of Freedoms Act 2012
6) The signage was not seen before parking – so there was no valid contract formed between KPS and the driver.


1) No company exists called “Kernow Parking Solutions”

No company exists called “Kernow Parking Solutions”. This can be confirmed by Companies House. Therefore:
- No legal entity exists to form an alleged contract with a keeper or driver.
- No legal entity exists to form a contract with the land owner authorising it to issue parking charges.

2) No contract with landowner

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, KPS must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put KPS to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between KPS and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to KPS.

3) No genuine pre-estimate of loss

This car park is Pay and Display and I can confirm, as keeper, the correct payment was made. Based on the fee paid up to 1 hour cost £1 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £1 at the most. KPS have not told me these details, despite it being a prerequisite of Schedule 4.

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. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator 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 must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which is not the case as a ticket was purchased) 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 include '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’’

xxx.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

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.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has stated in June 2014 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.''

Further, if KPS claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put KPS 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.

4) Unreasonable / Unfair Terms

I would assert that the charge being claimed by KPS 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.”

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.

5) The Parking Charge Notice does not comply with Schedule 4 of the Protection of Freedoms Act 2012

The following points (A)-(B) may be observed on the Parking Charge Notice, making this a non-compliant Parking Charge Notice under the POFA 2012, Schedule 4 para 7:
(A) The “period of parking” is not shown, only the “time seen” and “time issued” (as required by POFA 12 Schedule 4 paras 7(2)(a) and 7(2)(b));
(B) Whilst the Parking Charge Notice has indicated that a payment be made to “Kernow Parking Solutions” there is no specific identification of the “Creditor”, who may, in law, be “Kernow Parking Solutions” or some other party. PoFA requires a Parking Charge Notice to have words to the effect that “The Creditor is…”

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 Parking Charge Notice is compliant. A Parking Charge Notice is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant Parking Charge Notice are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory Parking Charge Notice wording means there is no 'keeper liability'.

6) The signage was not seen before parking – so there was no valid contract formed between KPS and the driver.

A lack of signs at the entrance to a car park, and unclear wording, creates no contract. I put KPS 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. KPS 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) KPS has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

This concludes my POPLA appeal points. As a final statement I say 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.

The_Slithy_Tove

I like point #1, but I think it should be reworded a little, in that the relevant fact is that there cannot have been any contract in place for you to have breached/agreed to pay a charge for. Then go on to say why this is, i.e. there is no legal entity named who can offer such a contract.

Umkomaas

Your statement in your Beavis paragraph suggests you haven't read what you've just copied and pasted!

Please actually read what you've put. Your appeal needs to have credibility with both the PPC and, most importantly the Assessor!

Redx

+1 ^^^^^^^^^^^^^^^^^^

you definitely have not read or amended the Beavis section of the "not a gpeol" appeal point

plus it should be last

plus it should be followed by the Beavis paragraph in blue from the newbies thread, which is currently last and not after gpeol, but it will be when you fix everything

please proof read the appeal for any other errors, that is your task and then we will skim read it and point out errors etc

Cactus32

Thanks for the feedback. Sorry, I thought I had proof read it all but was using the ipad so had indeed missed some of the GPEOL.

I have made the following changes.
- Updated point 1 as advised.
- Based on even myself missing a chunk of the GPEOL section I decided it was too long. I have updated it with a shorter version. Also now last point with the Beavis paragraph after it as advised.
- For point 4 removed the points about keeper liability. Since I had to admit to being the driver I assume that is not relevant?

Again any advice appreciated.

Kernow Parking Solutions (KPS) PCN, Serial No xxx
POPLA Code: xxx

As the vehicle in question was on lease under my signature on the date this Parking Charge Notice was issued I am the 'keeper' as defined in the Protection of Freedoms Act 2012. I submit the points below to show that I am not liable for the parking charge:

1) No contract to have breached or agreed to
2) No standing or authority to pursue charges, nor form contracts with drivers
3) Unreasonable / Unfair Terms
4) The Parking Charge Notice does not comply with Schedule 4 of the Protection of Freedoms Act 2012
5) The signage was not seen before parking – so there was no valid contract formed between KPS and the driver.
6) No genuine pre-estimate of loss


1) No contract to have breached or agreed to

There cannot have been any contract in place for the keeper to have breached or agreed to pay a charge for. The reason for this is there is no legal entity named who can offer such a contract. It can be confirmed by Companies House that no company exists called “Kernow Parking Solutions”. If “Kernow Parking Solutions” is meant to be a trading name it does not comply with the legal requirements to run a business this way.

Therefore:
- No legal entity is named who can offer a contract with a keeper or driver.
- No legal entity is named who could enter in to a contract with the land owner authorising it to issue parking charges.

I therefore put KPS to strict proof to POPLA and myself that KPS is a legal entity that can offer the alleged contract.

2) No standing or authority to pursue charges, nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, KPS must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put KPS to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between KPS and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to KPS.

3) Unreasonable / Unfair Terms

I would assert that the charge being claimed by KPS 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.”

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 KPS 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.

4) The Parking Charge Notice does not comply with Schedule 4 of the Protection of Freedoms Act 2012

The following points (A)-(B) may be observed on the Parking Charge Notice, making this a non-compliant Parking Charge Notice under the POFA 2012, Schedule 4 para 7:
(A) The “period of parking” is not shown, only the “time seen” and “time issued” (as required by POFA 12 Schedule 4 paras 7(2)(a) and 7(2)(b));
(B) Whilst the Parking Charge Notice has indicated that a payment be made to “Kernow Parking Solutions” there is no specific identification of the “Creditor”, who may, in law, be “Kernow Parking Solutions” or some other party. PoFA requires a Parking Charge Notice to have words to the effect that “The Creditor is…”

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 Parking Charge Notice is compliant.

5) The signage was not seen before parking – so there was no valid contract formed between KPS and the driver.

A lack of signs at the entrance to a car park, and unclear wording, creates no contract. I put KPS 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. KPS 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) KPS has no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

6) No genuine pre-estimate of loss

The Parking Charge Notice states the charge is for ‘contravention’ of the conditions at the location so KPS must prove the charge to be a genuine pre-estimate of loss (GPEOL). There is no loss flowing from this parking event because a ticket had been purchased for the required duration. Please refer to the copy of the purchased ticked included for evidence.

KPS 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. KPS 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.

Further, as KPS have claimed in their appeal rejection letter that this is a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put KPS 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 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.

This concludes my POPLA appeal points.

ampersand

Cactus - please use 3rd person, rather than 'I', 'I','I' ,'I' ,'I'.
You can write well enough, so use advised format please and hone it. Lose clumsiness.
I'm assuming the parking event is alleged overstay.

'specifically for this client in this car park.' - 'client' is incorrect.
No landowner is 'client' of a parasite pp scumpany - vice versa.

Quick scan -
#
Kernow Parking Solutions (KPS) PCN, Serial No xxx
POPLA Code: xxx

On the date this Parking Charge Notice was issued, the vehicle reg. no.xxx was on lease to the respondent, who was thus the 'keeper' as defined in the Protection of Freedoms Act 2012.
The points below are submitted to show that the respondent is not liable for the alleged parking charge:

'1)[STRIKE]No contract to have breached or agreed to'[/STRIKE] -??? re-word, re-order.
No contract agreed, therefore no contract breached.

2) No standing or authority to pursue charges, nor to form contracts with drivers

3) Unreasonable / Unfair Terms

4) The Parking Charge Notice does not comply with Schedule 4 of the Protection of Freedoms Act 2012

5) The signage was not seen before parking[so what? You must have seen something to use the P&D machine. Just being devil's advocate:-)] – so there was no valid contract formed between KPS and the driver.[defective understanding of contract law]

Just stick with 'non-compliance' / 'unfair/ill-lit' / too high/small - whatever.etc. Remember you are challenging them to prove all was tickety boo at that moment on that day. Proof? The guidance templates are worded thus because they work, are accurate. No personal quirkery or cleverness.Make the popla assessor your friend with articulate, well set out points.


6) No genuine pre-estimate of loss


1) No contract agreed, therefore no contract breached.
[re-word, simplify]
No valid contract was in place because there is no legal entity named Kernow Parking Solutions who can offer such a contract. It can be confirmed by Companies House that no company exists. If “Kernow Parking Solutions” is meant to be a trading name it does not comply with the legal requirements [STRIKE]to run a business this way[/STRIKE].[which are? You must say why]

Therefore:
- No legal entity is named who can offer a contract with a keeper or driver.
- No legal entity is named who could enter in to a contract with the land owner authorising it to issue parking charges.

I therefore put KPS to strict proof to POPLA and myself that KPS is a legal entity that can offer any such allegedly valid 'contract.'

2) No standing or authority to pursue charges, nor form contracts with drivers

This Operator has no proprietary interest in the land, so has no standing to make contracts with drivers in its own right, nor to pursue charges for any alleged breach in its own name. In the absence of such title, KPS must have assignment of rights from the landowner to pursue charges for breach in its own right, including at Court level. No commercial site agent for the landowner has any automatic standing or authority in its own right which would meet the strict requirements of section 7 of the BPA Code of Practice.

I therefore put KPS to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between KPS and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to KPS.

3) Unreasonable / Unfair Terms

I would assert that the charge being claimed by KPS is a punitive sum. The following refers to this.: 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.''
Attention is drawn again to the respondent's rebuttal of the existence of any such contract [point 2].

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.”

It is wholly unreasonable to rely on non-compliant, illegible signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking.

KPS must justify that this 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.

4) The Parking Charge Notice does not comply with Schedule 4 of the Protection of Freedoms Act 2012
[selectively use these points under para.5

The following points (A)-(B) may be observed on the Parking Charge Notice, making this a non-compliant Parking Charge Notice under the POFA 2012, Schedule 4 para 7:
(A) The “period of parking” is not shown, only the “time seen” and “time issued” (as required by POFA 12 Schedule 4 paras 7(2)(a) and 7(2)(b));
(B) Whilst the Parking Charge Notice has indicated that a payment be made to “Kernow Parking Solutions” there is no specific identification of the “Creditor”, who may, in law, be “Kernow Parking Solutions” or some other party. PoFA requires a Parking Charge Notice to have words to the effect that “The Creditor is…”

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 Parking Charge Notice is compliant.

5) re-word

There are no signs at the entrance to a car park, and unclear wording, [you contradict yourself here]
[STRIKE]creates no contract.[/STRIKE]
There were no signs at the car park entrance.

I put KPS to provide strict contemporaneous proof that this was not so[ site map plus timed and dated photos].
A Notice is not imported into any alleged 'contract' unless brought home so prominently that the party 'must' have known of it and agreed terms.

KPS signs in this car park are sparse and invalid in their wording, to the extent that they are incapable of offering a valid contract even if a driver has seen and agreed to the terms.

This was 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,[STRIKE] such as when[/STRIKE]and the driver leaves the carpark[STRIKE]walks away and past a sign[/STRIKE], as this is too late.[careful, because someone has read sthg and p&d in consequence - devil's advocate again]

In breach of Appendix B (Mandatory Entrance Signs) KPS has no entry signage [ or any other where reg. no was parked] with full terms which could be readable at eye level, for a driver in moving traffic on arrival.

6) No genuine pre-estimate of loss

The Parking Charge Notice states the charge is for ‘contravention’ of the conditions at the location so KPS must prove the charge to be a genuine pre-estimate of loss (GPEOL). There is no loss flowing from this parking event because a ticket had been purchased for the required duration. Please refer to the copy of the purchased ticked included for evidence.

KPS 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. KPS 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.

Further, as KPS have claimed in their appeal rejection letter that this is a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put KPS 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 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.

This concludes my POPLA appeal.
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Wait till others check. Popla submission deadline?

Cactus32

Ampersand, thank you for the advice. The alleged event was an incorrectly displayed ticket.

My appeal has been updated and submitted. The POPLA deadline was on the 11th. Due to be considered on the 15th September.

bazster

"Incorrectly displayed"? Is that really what it says?