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POPLA appeal letter - wording advice pls
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Lizm
Posts: 9 Forumite
Hi, I have prepared the following POPLA appeal letter which I would be grateful for any feedback on - there seems to be some new guidance since I last appealed, hopefully I have picked this up correctly using some of the forum guidance and links to previous letters.
I have not admitted to being the driver, and appealed to NCP as the keeper. The PCN was received for parking in a disabled bay at Severn Tunnel Junction train station, the parking fee of £3.80 was paid in full (electronically via Dash).
I received the above PCN. As the registered keeper of the above vehicle, I am appealing on the following grounds which are further detailed in the paragraphs below these five bullet points;
1. The charge and NCP GPEOL statement' is not a genuine pre-estimate of loss.
2. There is no loss flowing from this parking event.
3. Unclear & non-compliant signage which created no contract
4. Lack of standing/authority from landowner
5. Unreasonable/unfair terms
1) The Charge is not a genuine pre-estimate of loss
I would contest the parking charge as not being a GPEOL on the following points:
i. Parking for the above vehicle was paid in full.
The parking contravention charge is out of all proportion to any potential loss on the part of NCP and therefore does not represent a genuine pre-estimate of loss. There is no dispute that the driver did in fact pay the amount required.
ii. There is no loss flowing from this parking event. This Operator 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.
iii. 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. The Operator 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. As was found by District Judge Charles Harris QC in 'A Retailer v Ms B' (a case which turned on whether there was a loss to pursue from a consumer) no staff have been 'significantly diverted' from their duties. In this case, issuing a PCN and then handling appeals is a part of NCP salaried staff's normal day to day activity, so staffing costs/NI contributions cannot be properly included in a loss statement.
iv. Cases only go to POPLA in some 1% of cases, so the cost of a POPLA appeal is far too remote to include in a GPEOL statement set before parking events occur. The possibility of the POPLA route is rarer even than the debt collector route, so it cannot have been in the reasonable contemplation of NCP when setting the level of 'charge' that POPLA costs would flow from an average parking event. As a matter of policy, POPLA Assessors do not allow debt collection costs to be included in a GPEOL because most cases do not follow that route. The same applies to 'POPLA costs', as was found by Nadesh Karunairetnam in ref 4212674003 in November 2014:
'... the cost of bringing the case to POPLA is too remote - it would not be in the reasonable contemplation of the parties at the time the parking contract was formed between the motorist and the operator. Therefore, I must find that the operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss. '
2) There is no loss flowing from this parking event.
This Operator 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. The Operator 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.
Payment for the parking on the day was paid in full.
3) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed.
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply. 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 when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) NCP have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
4) No standing or authority to pursue charges nor form contracts with drivers. NCP have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.
I require NCP to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority
5) Unreasonable/Unfair Terms
I would assert that the charge being claimed by NCP is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 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 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 attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put NCP 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.
I have not admitted to being the driver, and appealed to NCP as the keeper. The PCN was received for parking in a disabled bay at Severn Tunnel Junction train station, the parking fee of £3.80 was paid in full (electronically via Dash).
I received the above PCN. As the registered keeper of the above vehicle, I am appealing on the following grounds which are further detailed in the paragraphs below these five bullet points;
1. The charge and NCP GPEOL statement' is not a genuine pre-estimate of loss.
2. There is no loss flowing from this parking event.
3. Unclear & non-compliant signage which created no contract
4. Lack of standing/authority from landowner
5. Unreasonable/unfair terms
1) The Charge is not a genuine pre-estimate of loss
I would contest the parking charge as not being a GPEOL on the following points:
i. Parking for the above vehicle was paid in full.
The parking contravention charge is out of all proportion to any potential loss on the part of NCP and therefore does not represent a genuine pre-estimate of loss. There is no dispute that the driver did in fact pay the amount required.
ii. There is no loss flowing from this parking event. This Operator 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.
iii. 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. The Operator 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. As was found by District Judge Charles Harris QC in 'A Retailer v Ms B' (a case which turned on whether there was a loss to pursue from a consumer) no staff have been 'significantly diverted' from their duties. In this case, issuing a PCN and then handling appeals is a part of NCP salaried staff's normal day to day activity, so staffing costs/NI contributions cannot be properly included in a loss statement.
iv. Cases only go to POPLA in some 1% of cases, so the cost of a POPLA appeal is far too remote to include in a GPEOL statement set before parking events occur. The possibility of the POPLA route is rarer even than the debt collector route, so it cannot have been in the reasonable contemplation of NCP when setting the level of 'charge' that POPLA costs would flow from an average parking event. As a matter of policy, POPLA Assessors do not allow debt collection costs to be included in a GPEOL because most cases do not follow that route. The same applies to 'POPLA costs', as was found by Nadesh Karunairetnam in ref 4212674003 in November 2014:
'... the cost of bringing the case to POPLA is too remote - it would not be in the reasonable contemplation of the parties at the time the parking contract was formed between the motorist and the operator. Therefore, I must find that the operator has failed to produce sufficient evidence to demonstrate that the parking charge is a genuine pre-estimate of loss. '
2) There is no loss flowing from this parking event.
This Operator 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. The Operator 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.
Payment for the parking on the day was paid in full.
3) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed.
I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs at the ticket machine failed to properly warn/inform the driver that an additional punitive charge would apply. 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 when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) NCP have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
4) No standing or authority to pursue charges nor form contracts with drivers. NCP have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare licence to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.
I require NCP to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority
5) Unreasonable/Unfair Terms
I would assert that the charge being claimed by NCP is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 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 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 attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff and displayed the flimsy ticket in good faith. I put NCP 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.
0
Comments
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Hi
Just wondering how the appeal went.
I have just done the same thing at Newport station and am about to appeal to POPLA0 -
Lizm, if pcn was for 'parking in a disabled bay' are you a BB holder?
If not, your appeal seems mismatched.
Have you searched other Threads on station parking and bye-laws? Check their dates.
#
As for, 'there seems to be some new guidance since I last appealed', popla is now being run by OSLtd. There's a lot to read on Parking Prankster
http://parking-prankster.blogspot.co.uk/
and their own site,
http://www.ombudsman-services.org/parking-on-private-land-appeals-%28popla%29-.html
in addition to popla's re-jigged site:
http://www.popla.co.uk/.
You need to read this and current related mse threads and absorb implications before sending something that worked once before, possibly for a different parking event.CAP[UK]for FREE EXPERT DEBT &BUDGET HELP:
01274 760721, freephone0800 328 0006'People don't want much. They want: "Someone to love, somewhere to live, somewhere to work and something to hope for."
Norman Kirk, NZLP- Prime Minister, 1972
***JE SUIS CHARLIE***
'It is difficult to free fools from the chains they revere' François-Marie AROUET
0 -
Sorry I hadn't spotted your post sooner - good luck with your appeal. As I hadn't had a response on the forum to my post back in July, I submitted the appeal as I'd written it. It has all gone very quiet from POPLA - I got a couple of emails regarding appeal dates (it kept being pushed back), with the last one confirming my hearing was early in October - I haven't heard anything since. I'm hoping that means it has all gone away, will post back here if I do ever get anything one way or the other. I'm a bit concerned about today's article online in the Law Society Gazette re a supreme court ruling dismissing a parking ticket challenge.0
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check parking pranksters November 2015 blogs about Barry Beavis losing his court case0
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