"UK Car Park Management" PCN.

jezdafi

Hi, I've been reading the forums for advice for a while now and have never needed to actually post anything as most of my PCN's were always cancelled on the first appeal.

My father has now however received a PCN from UKCPM. I am dealing with his PCN as he does not have time to do it himself. I went through the usual procedure, using the template in the sticky thread and surprise surprise, got refused.

They sent me a POPLA code along with the longest letter I have ever received! The letter has many points that are interesting and make me a little nervous tbh.

One of the main points in the letter is that they mention the Parking Eye and Barry Beavis case of April 2015.

This company seems to know I used an online forum to get my information and template and I am now wondering if I should advise my father to just pay the reduced fee of £60, instead of appealing to POPLA.

Any advice will be greatly appreciated, I have tried my best to not make a new thread but I am now stuck.

These are pictures of the letters, and the signage at the car park.

EDIT: imgur com/a/4rrXP

Thanks in advanced.

The_Deep

Beavis is under appeal and should never have been referenced. Also, it would only a apply in very limited circumstance, in a free car park with no facility to purchase extra time, and where the PPC held a financial interest in the land, and where local council charges are similar.


The long letter is intended to intimidate you, to make you pay, but why should, did your father actually cause them to lose £60, of course not.

Appeal to PoPLA, and cost them real money.ly

Umkomaas

http://m.imgur.com/a/4rrXP

Their GPEOL is garbage. There can be no losses in the context of normal business costs. And they can't add in their POPLA appeal fee - a POPLA appeal is free to the motorist.

So your POPLA appeal should follow the examples in Section 3 of the NEWBIES sticky (adapted to your case), but in the same process you should start to dismantle the points raised in the CPM missive.

jezdafi

Thanks for the replies, I will be appealing to POPLA in that case. This is my draft copy for the appeal to POPLA.

Dear POPLA Assessor,

As the registered keeper of vehicle registration

---

, I am appealing against parking charge number

---

using POPLA appeal code

---

. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.

1) Charge not a genuine pre-estimate of loss
2) UK Car Park Management Ltd have failed to establish keeper liability
3) Contract with Landowner
4) Inadequate Signage

1) This charge is not a contractually agreed sum. It is a disguised breach and is not a genuine pre estimate of loss.

UK Car Park Management Ltd have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum which I dispute.

a) This charge is not a contractually agreed sum – it is a disguised breach

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.

The signage indicates that parking for over 24 hours attracts a £100 charge and, as no limits are specified, this could be the same price for 10 minutes, 10 weeks or indeed 10 years.

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.

I require UK Car Park Management Ltd to provide a VAT invoice and proof that this chargeable regime at this location is registered for business rates.

b) Charge not a genuine pre-estimate of loss

If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach.

The parking area is free and there was no damage or obstruction caused (nor is any being alleged).

The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.
The BPA Code of Practice states:
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 based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.


The appellant has received a breakdown of how the amount of the charge was calculated from UK Car Park Management Ltd. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss, despite this UK Car Park Management Ltd stated that the genuine pre-estimation of loss included things such as customer service and telephone expenses, staff wages including staff national insurance payments, staff uniforms etc. which are all standard costs needed to run any business.

UK Car Park Management Ltd have also stated that the POPLA appeals fee is included in their costs, which should in fact be free for motorists.

POPLA Assessor Matthew Shaw has stated that the entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. For example, were no breach to have occurred, then the cost of parking enforcement, such as erecting signage, would still have been the same. The estimate must be based upon loss flowing from a breach of the parking terms, and in this instance there was no such loss.


I therefore respectfully request that my appeal is upheld and the charge dismissed.

2) UK Car Park Management Ltd has failed to establish keeper liability


3) Contract with Landowner

UK Car Park Management Ltd does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

4) Inadequate Signage


The signage provided by the parking company is inadequate and almost not visible when entering or parking at the site. The signage is placed in between two protruding walls, which if parking at either side of, would obstruct the view of the signage. If the sign cannot be seen, then no “contract” can be agreed to.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

[FONT=&quot]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.[/FONT]

Yours faithfully,

I wasn't too sure what to put for the second point about keeper liability. I feel I should focus on the inadequate signage section, as the signage is actually pretty hard to see.. My father said at the angle he was parked, the sign is not at all visible. I don't know what else to add though.

Thanks again.

Umkomaas

How old is this example? You need to do more research and come up with a better example.

This charge is not a contractually agreed sum. It is a disguised breach

Sorry, but that just doesn't make sense. What's a 'disguised breach'?

2) UK Car Park Management Ltd has failed to establish keeper liability

Where's the rest of this appeal point, beyond the heading?

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Please drop this awful, obsequious pleading which started to crop up in appeals a couple of years ago. I thought we'd seen the end of it! Once, at the end of the appeal is very much more than enough.

We now recommend that the GPEOL paragraph is placed as the final appeal point, followed by the final paragraph you've (rightly) got at the end re the Beavis Supreme Court stuff.

You've covered the one rebuttal point I suggested in my prior post on some of the PPC costs put forward as part of their GPEOL - that's good - but there must be far more for you to go through, given the length of their rejection reply. If you don't rebut a PPC assertion, the danger is that POPLA will take it that you don't disagree with it.

jezdafi

I got the example from an old thread that seemed to be similar to this case. I will edit it once again with all the points you've raised.

I wasn't sure what to put for the failed to establish keeper liability, this part confused me a lot.

Thanks.

Mike172

UKCPM never put up any evidence or a fight at POPLA.

Dont over think it. Copy and paste the POPLA appeal in my threads if you want to make things simple.

They are prone to making admin errors so feel free to check your code (Google POPLA code checker) before you submit.

Umkomaas

jezdafi wrote: »

I got the example from an old thread that seemed to be similar to this case. I will edit it once again with all the points you've raised.

I wasn't sure what to put for the failed to establish keeper liability, this part confused me a lot.

Thanks.

Mike172 has had significant success against UKCPM, so go with his suggestion. A 7-0 winning score-line (so far, with more to come) can't be bad!

The_Deep

1) This charge is not a contractually agreed sum. It is a disguised breach and is not a genuine pre estimate of loss.

Are they claiming that it is? Most BPA member go for BOC on which vat is not chargeable. Can you show us the sign.

bod1467

See post #3 for a link to the signage. It claims a contractual parking charge.

jezdafi

I looked at your threads Mike172 and based a lot of my edits on your POPLA letters. This is the new draft.

Dear POPLA Assessor,

As the registered keeper of vehicle registration

---

, I am appealing against parking charge number

---

using POPLA appeal code

---

. I am not liable for the parking charge on the grounds stated below, and I respectfully ask that all points are taken into consideration.

1. This charge is not a contractually agreed fee

UK Car Park Management Ltd have not made clear the basis of their charge. Having visited the site, it appears they may be claiming the charge is a contractually agreed sum which I dispute.

If this charge was a contractually agreed fee the sign would been worded to offer various durations of parking at various costs. In addition a payment mechanism would have been provided on-site and a VAT invoice supplied. This is not the case here.

The signage indicates that parking for over 24 hours attracts a £100 charge and, as no limits are specified, this could be the same price for 10 minutes, 10 weeks or indeed 10 years.

In addition no VAT invoice has been provided and I have no evidence that this business operation on this car park has been registered for business rates.

Despite what the sign attempts to say, it is not an offer to park for a fee and it is clear that the true and predominant purpose of the alleged 'parking operation' is to deter breach and, in the absence of evidence that this charge is a genuine pre estimate of loss, it is an unrecoverable penalty.

In a recent ruling at Luton Crown Court 2014 (Civil Enforcement Ltd v McCafferty) the judge ruled that sum quoted on the sign was not a genuine offer to park at that price, but its main purpose was to deter. It was, therefore, a penalty dressed up as a contractual term, and not recoverable.

In the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

It would normally be for the owner to claim for loss which is nothing as there are no fees for using this car park and there was no damage or obstruction caused (nor is any being alleged). It is unfair to attempt to make a party pay excessively for an event that would normally be 'breach of contract'.

I require UK Car Park Management Ltd to provide a VAT invoice and proof that this chargeable regime at this location is registered for business rates.

2. Contract with Landowner

UK Car Park Management Ltd does not own the land in question and has provided no evidence they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary nor agency rights and hold no title or share of the land. I do not believe that they have the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in their own name as creditor. I believe that at best they may hold a site agreement limited to issuing tickets and as such I require that they provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).

In order to comply with the BPA code of practise, this contract must specifically grant the Operator the right to pursue parking charges in their own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons;

a) Some parking companies have provided 'witness statements' instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the Operator which would obviously affect any 'loss' calculations. Furthermore it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practise to allow the Operator to pursue charges in their own name as creditor and to enter into contracts with drivers.

b) In POPLA case 1771073004, it was ruled that a witness statement was 'not valid evidence'. If the Operator provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.

Should a basic contract be produced mentioning parking charge notices, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

I would remind the Operator of their obligation to provide the Appellant with a copy of any evidence provided to POPLA as requested sent with sufficient time for consideration and rebuttal.

3. Inadequate Signage – not compliant with the BPA Code of Practice section 18, appendix B.

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) UK Car Park Management Ltd have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival. The signage provided is inadequate and not visible when entering or parking at the site. The signage is placed in between two protruding walls, which if parking at either side of, would obstruct the view of the signage. If the sign cannot be seen, then no “contract” can be agreed to, meaning no valid contract can be formed.


I therefore require that the Operator submit evidence of the "clear and prominent signage throughout the development" referred to in their rejection letter in the form of site maps and photographs clearly indicating the location and height of said signage at the time of the alleged breach.

I have taken photographs myself today for the purpose of rebuttal should the need arise and would once again remind the Operator of the requirement to submit copies of any evidence to the Appellant allowing sufficient time for consideration and rebuttal.

4. Non-compliant Notice to Keeper - no keeper liability established under POFA 2012

The following points (A)-(E) may be observed on the NTK, making this a non-compliant NTK under the POFA 2012, Schedule 4 para 8:
A) The 'period of parking' is not shown, only the time of issue of an alleged PCN (as required by POFA 12 Schedule 4 paras 8(2)(a) and 8(2)(b));
It does not repeat the information on the parking charge notice (as required by POFA 12 Schedule 4 para 8(2)(c))
C) It specifies that there are unpaid parking charges “for the specified period of parking” (which was not specified), even though there are no unpaid charges for parking (in contravention of POFA 12 Schedule 4 para 8(2)(d));
D) It does not identify the creditor (as required by POFA 12 Schedule 4 para 8(2)(h)).
E) The ‘date on which the notice is sent’ is not explicit (as required by POFA Schedule 4 para 8(2)(i)).

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'.

5. Charge not a genuine pre-estimate of loss

If the sum is sought as damages for breach of contract then under established contract law it must be shown to be a genuine pre estimate of loss arising from the breach.

The parking area was free and there was no damage or obstruction caused (nor is any being alleged).

The demand for £100 is punitive, unreasonable, exceeds an appropriate amount, has no relationship to the loss that would have been suffered by the Landowner, and is therefore an unenforceable penalty. Furthermore, it exceeds the BPA’s own Code of Practice.
The BPA Code of Practice states:
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 based on the genuine pre-estimate of loss that you suffer.
19.6 If your parking charge is based upon a contractually agreed sum, that charge cannot be punitive or unreasonable.


The appellant has received a breakdown of how the amount of the charge was calculated from UK Car Park Management Ltd. I am aware from Court rulings and previous POPLA adjudications that the cost of running the business may not be included in these pre-estimates of loss, despite this UK Car Park Management Ltd stated that the genuine pre-estimation of loss included things such as customer service and telephone expenses, staff wages including staff national insurance payments, staff uniforms etc. which are all standard costs needed to run any business.


As the charge in this case is the same lump sum whether the vehicle is parked for 10 minutes or for 24 hours and the same amount is charged for any alleged contravention, it is clear that this is punitive and that no consideration has been given to calculating a genuine pre estimate of loss in this case.

UK Car Park Management Ltd have also stated that the POPLA appeals fee is included in their costs, which should in fact be free for motorists. Cases rarely go to POPLA, so the cost of a POPLA appeal is far too remote to include in a GPEOL statement made before parking events occur. This means it cannot be set as a pre-estimated 'charge' as POPLA costs do not 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. '

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.

I would also refer them to the Unfair Terms in Consumer Contract Regulations, where it states that parking charges for breach on private land must not exceed the cost to the Landowner during the time the Motorist is parked there and remind them that the amount in this case is nothing.


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 Parking Eye 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.

Yours faithfully,

Good to go? I wasn't too sure about the keeper liability part again, the points you made for your appeal Mike, were for a parking charge that had the possibility to purchase a ticket for the day. This PCN requires a permit, not a ticket. So I don't think I can argue the same points.

Regards,