My appeal

azmalik86

Good morning all.

I am hoping someone can help me.

I have followed all the advice on your newbies parking thread. Basically i received a ticket from P4Parking for "Parking in a bay without a valid permit". Now the driver was not aware of these restrictions being in place simply because there was no signage at the entrance and they saw none in the premises.

I visited the premises on the very next day and saw the signage inadequately placed (one was hidden amongst bushes which i sent to POPLA) and the other was 15 ft up against the wall a few metres away.

I followed the advice on the newbies thread and appealed after 2 weeks to P4Parking which i sent via post (i did get a receipt to prove postage). i stated the following,

Date 31/03/2015


Dear Sirs

Re: PCN No. ***********

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

a). The sum does not represent a genuine pre-estimate of loss, nor is it a core price term. It is a disguised penalty and not commercially justified.
b). As keeper I believe that the signs were not seen or are inadequately placed, the wording is ambiguous and the predominant purpose of your business model is intended to be a deterrent.
c). There is no evidence that you have any proprietary interest in the land.
d). Your 'Notice' fails to comply with the POFA 2012 and breaches various consumer contract/unfair terms Regulations.
e). There was neither consideration nor acceptance flowing from both parties and any contract with myself, or the driver, is denied.

Your clients should be thoroughly ashamed of the shoddy way you treat consumers visiting their premises. The landowner will be made fully aware of this matter and your response, which I will forward to them when I complain in writing and via social media, as appropriate. Parking firms like yours fail to demonstrate even a basic understanding of customer service. The reputation of your business model appears to be more akin to a protection racket than 'parking management'. Your ATA may offer sound-bites about driving up standards or fight for motorists' rights but in reality they are not a regulator; they merely exist to represent the interests of paying members, in order to gain access to DVLA data. The public have no faith in the private parking industry and, as far as I have seen, your firm has not shown it to be any different than the ex-clampers with whom you share a membership.

The purpose of this communication is:

1. Formal challenge
There will be no admissions as to who was driving and no assumptions can be drawn. As such, you must either rely on the POFA 2012 or cancel the charge. I suggest you uphold this challenge now or alternatively, send a rejection letter - subject to accepting my claim for costs as clearly stated below, since you have no case.

2. ''Drop hands'' offer
The extravagant 'parking charge' is baseless but I realise that you may have incurred nominal costs. Equally, I have incurred costs to date, for researching the law and responding to your junk dressed up to impersonate a parking ticket. It is clear that my costs and yours, at this point, do not exceed £10. Therefore, 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 without further expense and I will not pursue you for my costs. If you persist then I will charge in full for my time at £18 per hour plus my out-of-pocket expenses and damages for harassment.

3. Notice of cancellation of contract
I hereby give notice of withdrawal from this alleged 'contract' which was never properly offered by you and certainly was not expressly agreed. This 'contract' is hereby cancelled and any obligations now end. If you offer - and if I decide to use - IAS or POPLA, then the contract ends immediately on the date of their decision (whatever the outcome) so my notice of cancellation still applies. The Consumer Contracts (Information, Cancellation & Additional Payments) Regulations apply now to every consumer contract, save for a few exemptions, which parking contracts are not. It is the will of Parliament following the EU Consumer Rights Directive, that express consent is obtained for consumer contracts now - not implied consent - and that information is provided in a durable medium in advance.

You have failed to meet these requirements. The foisting of unexpected contracts like this on consumers, by stealth, is a thing of the past.

By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above. If you decide to persist with this unwarranted threat, I will be put to unnecessary expense and hours of time in appealing or defending this matter. As such, you will be liable for my costs and a pre-estimate of my loss - and in contrast with yours, mine is genuine - is that this sum will be likely to exceed £100.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.

Yours faithfully,

(keeper of vehicle)

(My address)

I thought all was well until a whole 5 weeks later i had TNC threatening me with payment or else they will take action. I sent TNC a letter saying:

Despite attempts by the Registered Keeper to appeal this notice with your client Nighthawk, no correspondence has been received. Your client has failed to follow the BPA Code of Practice and has therefore rendered the charge invalid. This failure has been reported to both the BPA and the DVLA.

Any liability of the charge is denied by both the Registered Keeper and the driver. Therefore you should return the charge to your client, Nighthawk. (P4Parking)

Any further correspondence except a cancellation of the charge or a POPLA code will be considered harassment and could leave you liable to legal action. No further correspondence will be entered into by the Registered Keeper.

I have not heard from TNC since.

Now over 35 days had passed. I emailed the DVLA who did not even reply and Steve Clark (BPA) who assigned Gemma Ridgewell of the BPA to get in touch with P4Parking as to why they had not replied to my appeal and why i was being harassed by debt collectors instead. They (P4Parking) gave the usual response that they had not received my appeal. I emailed Gemma the receipt but she said this does not prove they received it.

I then emailed Gemma my appeal to which she sent to P4Parking on the 9th of June. Now Gemma told me if i had no response within 35 days then i do not need to pay. So i go about my business for 35 days and i emailed Gemma saying that i have still received no reply to which she replied saying that P4Parking replied back the very next day (10/06) and that she was copied in on the email which was sent to me. Now i was regularly checking my inbox via my iPhone and did not see this email because i was waiting for this email to show up so i could appeal to POPLA. I am certain that they did not email me. When Gemma did forward me their email (supposedly sent 10/06 but not received by me until the 20/07) my time to appeal to POPLA (28days) was effectively over.

I still appealed to them explaining what had happened and that really i did not receive my POPLA code until the time limit was up, i explained everything and sent them the following,


Why they are appealing:
Charge exceeded
Not liable

Appeal reasons:
RE: POPLA CODE- ********** Parking Charge Number (PCN): ********* Vehicle Reg: M******* Operator: Nighthawk Parking (Trading name of P4Parking (UK) Ltd) I am the keeper of the vehicle which was issued with a PCN for parking with no permit on display. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention only after emailing Nighthawk again informing them that I have received no POPLA code and was being harassed by a company called TNC instead. I had to get in touch with Gemma Ridgewell of the BPA who forwarded my appeal to them on 09/06/2015. They apparently replied back the next day but i was not made aware of this despite regularly checking my emails via iphone. I emailed Gemma informing her of this but she informed me that they did actually reply on 10/06/2015 which i was not aware of otherwise i would have appealed earlier. Therefore I would like to appeal this notice on the following grounds please. 1. PCN neither a genuine contractual fee nor genuine pre-estimate of loss 2. No contract assigning rights to P4Parking to enforce contracts with drivers 3. No contract formed by the signage 4. Charge non-compliant to the BPA Code of Practice 1. Neither a genuine contractual fee nor genuine pre-estimate of loss The non-compliant signage refers to a ‘ticketed excess charge’, to be issued on breach of terms/failure to comply, this incorrectly implies that this penalty is an excess charge (which it cannot be, because parking is provided free of charge to visitors of residents living at the development). This also confirms that this demand is a punitive charge, not a contractually agreed parking tariff, which bore no relationship to any loss. P4Parking cannot demonstrate any initial quantifiable loss as the parking spaces are provided free of charge. 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. P4Parking notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from a parking event. 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. P4Parking 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. Therefore P4Parking cannot reasonably claim a broad percentage of their entire business running costs as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. Given that P4Parking charge the same lump sum for any alleged contravention (whether serious/damaging or trifling), it is clear this charge is not a genuine pre-estimate of loss caused by this incident in this car park. The Office of Fair Trading has stated to the BPA Ltd that ''a parking charge is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists''. Neither can the charge be 'commercially justified'. POPLA Assessor Chris Adamson stated in June 2014 that: ''In each case that I have seen from the higher courts,...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.'' I therefore require P4Parking to supply: • A detailed breakdown of their genuine pre-estimate of loss based on this charge I received. 2. No contract assigning rights to P4Parking to enforce charges in the courts or to form their own contracts with drivers I believe that P4Parking has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, or to pursue charges for breach in their own name. In the absence of such title, P4Parking 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 P4Parking in their rejection statement so I have no proof that such a document is in existence. I contend that P4Parking merely 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. I therefore require P4Parking to supply: • A contemporaneous copy of the contract between P4Parking and the landowner. This is required so that POPLA and I can check that it allows P4Parking to make contracts with drivers themselves and provides them with full authority to pursue charges, including a right to pursue them in court in their own name. Please note that a witness statement to the effect that a contract is in place will not be sufficient to provide sufficient detail of the contract terms (such as revenue sharing, genuine intentions of these restrictions and charges, set amounts to charge for each stated contravention, etc.). 3. No contract formed by the signage I submit that this signage failed to comply with the BPA Code of Practice (CoP) section 18 and Appendix B. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not see any sign entering the premises; there was no consideration/acceptance and no contract agreed between the parties. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. 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, as this is too late. The closest sign is inadequate in size and prominence, placed high on a wall, with small text and set far back from the entrance. I say that in order for drivers to read this, they must park, get out of their vehicles and use a stepladder to read the sign. The sign therefore breaches Appendix B of the BPA CoP, which states ''Signs should be readable and understandable at all times...”, Appendix B also states that the terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. These signs are not legible from any position within a vehicle or when entering the development. There are no signs on the outside of the entrance warning of incurring charges if you do enter to park. To breach a contract, one must have been formed in the first place. It is my submission that such a contract was not formed. At no time was it brought to the driver’s attention on any sign that they had the right to enter a contract for parking, if such a contract was intended it would have been made clear and the driver would have been afforded an opportunity to enter into a negotiation in order to influence the contractual terms which is also a necessary part of a contract. I therefore require P4Parking to supply: • Detailed evidence demonstrating that the signage on site complies with the BPA Code of Practice, including a map of signage throughout the site, detailing the heights and sizes of said signage, and photos of signage at the entrance to the site and in the bay in which the driver parked. I have attached my own photos of the signage which show nothing on the entrance to the premises and one sign which is clearly not visible as it is hidden amongst bushes. 4. Charge non-compliant to the BPA Code of Practice The ticket I received from P4 Parking had no reference to VAT shown on it. If it was an invoice for payment of a service contract, it must show VAT details on it, i.e., for parking services amount owed £50 + VAT at 20% = £60. Since there is no mention of VAT it must therefore be presumed to be nil or zero rated which would be the applicable rate for a fine or penalty, which of course is non-compliant to the BPA Code of Practice itself which states that the use of fine or penalty may not be used. That doesn’t legitimise the use of a more convenient term though. If the amount demanded were a contractual charge then it fails the test for that based entirely upon the wording on the ticket. It MUST show the VAT details of the company in accordance with the BPA Code of Practice, and it does not, therefore cannot be a breach of an alleged contractual arrangement. With all this in mind, I request that my appeal is upheld and for POPLA to instruct P4Parking to cancel the PCN.

Yours faithfully,
My name

Now POPLA sent me a letter saying unfortunately due to my appeal being sent after the 28 day time limit its not been registered. i have emailed them again explaining what has happened and that in special circumstances they can extend the appeal time, i am currently awaiting a response. I also emailed Gemma again (she is out of office till 19/08) asking for a screenshot of the email that P4Parking sent her just to see if they did get my email address correct or not because i am 100% sure i received no email on the 10/06 like they say i did.

Now the way this is going at the moment its all pointing to court action, all because i did not receive a POPLA code on time.

Can anyone advise as to what action i should take next. Your help would be greatly appreciated.

kind regards,
[COLOR]

Herzlos

I'd remove your name from the post, as the PPC may be monitoring it.

If the complaint is already with the BPA, I'd just let them know that they failed to provide you the POPLA code in time and as such your appeal was rejected, and ask them to intervene.

It's still hugely unlikely to result in court action. If it does, you can always push it back to POPLA.

azmalik86

Well Gemma Ridgewell of the BPA has given me the impression that because she was copied in on the email then i must have received it which is not true. Just how they said they did not receive my initial appeal despite proof of postage i genuinely did not receive an email. I did email POPLA again after they initially refused to register my appeal

Guys_Dad

Ask Ms Ridgewell to check what email address the PPC used to email you.

Simple trick of missing one letter out of your email address ensuring you didn't get a copy but making sure her email was right would cause her to believe that you did get the email and the PPC were telling the truth.

azmalik86

I have did that too, she is out the office until the 19th, i am hoping that is the case and they misspelt my email address.