Advice on my POPLA appeal

Hashboy69

Hi

Please can I have some advice on what to include on my POPLA appeal? I sent off a standard reply to the PCN company as shown below. I had a standard rejection letter with some evidence and my POPLA code. I have 10 days to reply with my appealword

Any help would be appreciated

Here is the the letter to the PCN company and the reply as an attachment

"Dear Sirs

Re: PCN No. 11529

I challenge this 'PCN' as keeper of the car, on these main grounds:

a). The sum is disproportionate, does not represent a genuine pre-estimate of loss, nor is it a core price term.
b) The sum is extravagant and unconscionable and cannot be justified.
c). There is no evidence that you have any interest in the land. I will complain to the landowner about your aggressive ticketing.
d). Your 'Notice' fails to comply with the POFA so there can be no keeper liability.
e). I believe that the signs were not seen/are ambiguous and the predominant purpose is to deter so there is no contract to pay this charge, which is a penalty.

Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 or cancel the charge. I will only appeal further if you offer POPLA, the only independent ADR with a scrutiny panel and trained Assessors. The 'IAS' offered by IPC firms will not be used, for well-documented reasons.

''Drop hands'' offer
The charge is baseless but I realise that you may have nominal postage costs. Equally, I have incurred costs for responding to your junk mail dressed up to mimic a parking ticket. It is clear that my costs and yours, at this point, do not exceed £15 so this is a formal “drop hands” offer. I remind you of the duty to mitigate any loss, so withdraw the spurious charge within 35 days and I will not pursue you for my costs.

Breach of CCRs
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered nor expressly agreed. This 'contract' is cancelled and any obligations now end.

I have kept proof of submission of this appeal and look forward to your reply.

Yours faithfully,
Registered Keeper
Thomas Martin


REPLY

“It is a condition of the site that a valid permit is clearly displayed whilst the vehicle is parked. In response to your comments. Following a recent appeal case in the high court where the court decided that the charge levied by the parking companies is effectively a deterrent and legally enforceable providing it is not extravagant or unconscionable. The fee charged by u.s is lower than that debated in court therefore the charge is enforceable.

As we are acting on behalf of the site owner enforcing their regulations we have a proprietary interest in the land as their agent and are able to act as principle in the contract formed when you enter the car park.

Our tickets comply with the terms of POFA and as you have provided your details as the keeper and have stated that you do not wish to name the driver you would be able to transfer liability.
You have stated that there is no signage or that it wasn’t seen. There are many signs at the car park including entry signs highlighting the regulations. By entering and using the car park you enter an implied contract to abide by the regulations.”

Then they say I have 3 options

Pay £40 now or £80 after 06/08

Make an appeal with POPLA

Do nothing.

They even spelt my name wrong!

Umkomaas

This is standard advice I give to everyone asking for similar help:

There is no standard POPLA appeal template, but your appeal needs to cover the following:

1. No keeper liability (but you need to check the NtK for correct dates and all requirements of PoFA have been included) - see here:
http://www.parkingcowboys.co.uk/keeper-liability/

2. Signage
3. No Contract with landowner to pursue charges in their own name at court
4. No proprietary interest in the land
5. Unlawful Penalty Charge
6. ANPR Accuracy (if appropriate)
7. No genuine pre-estimate of loss (GPEOL)

Read very carefully post # 3 of the NEWBIES FAQ sticky - it contains information important to your appeal.

There are plenty of examples of winning POPLA appeals across the forum; here are a couple of links for you to follow and research:

How to win at POPLA:

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

Some of the appeals linked here are now becoming a little dated, so be careful to use one of the more recent ones as your guide to framing your own.

Please don't do a 'copy and dump' of the first thing that looks 'legal' enough, then expect regulars to pick it apart and amend it all for you. We won't do that, so you need to understand what you're copying, you need to proof read it and make sure any references you make (Beavis in particular) are up to date, and everything relates broadly to your parking event.

POPLA Decisions

https://forums.moneysavingexpert.com/discussion/4488337

Read from the most recent backwards to get a feel for the appeal points on which POPLA Assessors are currently upholding appeals.

Hashboy69

Hi

I have started to put together my POPLA appeal but I only have a few days left to finish this, can anyone give me some help and let me know if what I have written so far is on the right track and what else I need to add or remove

Thanks

POPLA Code: xxxxxxxxx

I am the registered keeper and I wish to appeal a recent parking charge from NSGL Parking. I submit the points below to show that I am not liable for the parking charge:

1) The signage is not readable so there was no valid contract formed.
2) No standing or authority to pursue charges nor form contracts with drivers.
3) No genuine pre-estimate of loss

1, The signage is not readable so there was no valid contract formed between Parking Eye and the driver

The only signs are up on the walls away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any signs while entering the car park are either too low to be viewed or on the opposite side of the road not viewable to the occupants of the car. I believe that NSGL Parking placed their signs so that terms would only be legible if a driver got out of a car and crossed a road to view the signs. Any photos supplied by NSGL Parking to POPLA will no doubt show the signs in clear daylight or with the misleading aid of a close up camera and the angle may well not show how low or distant the sign is. As such, I require NSGL Parking to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed in relation to the Pay and display machine located at the site.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about this Operator's onerous inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

2, NSGL have no standing or authority to pursue charges nor form contracts with driver

The BPA Code of Practice states at 7.1 that:

“If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent) before you can start operating on the land in question. The authorisation must give you the authority to carry out all the aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice and that either you have the authority to pursue outstanding parking charges, through the courts if necessary or that you have the authority to pursue outstanding parking charges and, with their permission, through the courts if necessary..”

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, NSGL Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. This has not been produced by the operator in their rejection statement so I have no proof that such a document is in existence. I contend that NSGL Parking merely did hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. 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.

3, The parking charge issued by NSGL Parking is not a genuine pre-estimation of loss, The demand for £80 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 which 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 proportionate and commercially justifiable.

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.

Furthermore as the operator is clearly seeking to impose a penalty, it is their sole responsibility to provide a full breakdown as proof of the pre-estimated loss of £80. As of this point they have made no effort to provide me with a breakdown of the costs they allegedly incurred. To justify the charge of £80, I require NSGL Parking to back up their decision by providing POPLA with a full and detailed financial breakdown of the pre-estimated costs they have suffered as a result of the charge in question. I would like to add that normal costs of running their business (their day to day costs like provision of parking, enforcement, signage, salaries, rent etc) must not be included in the breakdown as NSGL Parking would need to pay these irrespective of this alleged charge. Parking enforcement costs cannot possibly represent any loss resulting from an alleged breach of contract, as these costs would need to be paid whether the breach had happened or not.

I respectfully request that this parking charge notice appeal be allowed and await your decision.

Redx

looks ok up to now, but needs the Beavis paragraph in blue from the NEWBIES sticky thread adding just above the last sentence

also check and maybe add a paragraph before not a gpeol about non-compliancy with POFA 2012, as few NTK,s etc comply with POFA 2012 (UNLESS YOU OUTED THE DRIVER ?) , so check for POFA 2012 failures and add them if they are there

and you are not replying to the PPC, you will be submitting this appeal as a word doc or pdf on the popla website, using the popla code (I hope you checked it is valid and the expiry date on parking cowboys website ?)

Hashboy69

Hi, thanks for your reply. I have added the Beavis paragraph from the newbie section. I have checked the NTD and it complies on all fronts so I have nothing to add there. If anyone can give me a few more pointers before I send this off that would be great. I have a day left to do this

Thanks

Hashboy69

Any last thoughts before I send this off? Any help would be appreciated

Thanks