Local Parking Security Ltd - New ticket

Maudise

Hi,

I've been reading all the newbie posts and done a bit of a search and can't find my situation so hopefully this isn't a dumb question.

The situation is as follows; a car par we've used previously offered free parking on a Sunday, and has recently changed this without putting up any notifications that charges now apply on a Sunday. As a result, we used the car park today and came back to find an 'Excess Charge Notice' from a wonderful company called Local Parking Security Ltd. These lovely folk seem to be part of the BPA accreditation for ticketing, and nothing else if that adds any weight to anything?

My questions are as follows; is there any requirement for them to notify the changes to the parking conditions? I'm presuming not, but worth asking.

Does the fact that I didn't purchase a ticket, rather than overstaying alter the claim in anyway?

The ticket was issued to a friend's car, is there anyway that I can argue the case potentially as a driver without accepting liability at this stage? I know if the tickets and threatening letters are sent to their address they are likely to pay, and given it's a charge of £50 Vs. a £1 ticket on private land. This is at odds with the template advice, and claiming to be the owner would be fraud.

The final section, and I'm going to check this tomorrow is that I don't think the signs carry a warning of either over-staying resulting in an additional charge. It seems from a bit of reading around that notification that excess charges need to be stated as part of the so called contract?

Any advice from the learned people here would be very much appreciated.

It's worth noting that this is ticket day +0 so would be delaying anything for +19 days anyway.

Thanks
Maudise

Redx

the BPA CoP has the details on new signage and the grace periods for people to get used to it, so read the CoP and that will give you your answers

the template letter needs to be used, so send it after day 21 and before day 28 , as keeper, (not as driver and not as owner either) and use a serviceable address

make sure the RK passes you any correspondence they may get, so you are doing this as keeper and using a suitable address (doing the work for the RK and telling them this)

dont embellish the template letter, just use it "as is" , you were the keeper, so are appealing as KEEPER (not owner , not driver), cant stress this enough

then when you get a popla code, use the usual arguments and include this non-compliance on signage as detailed in the CoP , as well as

no contract
poor signage (that also failed the bpa cop)
POFA compliancy
not a gpeol
the Beavis paragraph from the newbies thread

Maudise

Thanks, I'll do as directed. Hopefully they will correspond with me rather than going via the DVLA which could cause confusion potentially.

It might be me being a bit dense (and thankfully new to the world of parking tickets) but I can't see anything within the BPA CoP which looks at when they go from a free-day to a paid day and the grace period of. Only references to the grace period of when people enter the car park. I suspect it's a moot point anyway but any additional help would be greatly appreciated.

Many thanks
Maudise

hoohoo

Maudise wrote: »

Thanks, I'll do as directed. Hopefully they will correspond with me rather than going via the DVLA which could cause confusion potentially.

It might be me being a bit dense (and thankfully new to the world of parking tickets) but I can't see anything within the BPA CoP which looks at when they go from a free-day to a paid day and the grace period of. Only references to the grace period of when people enter the car park. I suspect it's a moot point anyway but any additional help would be greatly appreciated.

Many thanks
Maudise

18.11 Where there is any change in the terms and conditions that materially affects the motorist then you should make these clear on your signage. Where such changes impose liability where none previously existed then you should consider a grace period to allow regular visitors to the site to adjust and familiarise themselves with the changes

enfield_freddy

its gone from the one I can see online , http://www.britishparking.co.uk/write/bpa_code_of_practice_2012_version_1_october_2012.pdf


admittedly that looks to be the 2012version ,

Maudise

Hi,

Apologies for the hiatus, Summer time chaos and all that!

Thanks for digging out the phrase, I'm looking at; britishparking.co.uk/write/Documents/AOS/BPA_Code_of_Practice_-_February_2014_-_Version_4.pdf (not allowed to post links!)
but it doesn't seem to exist in this version of the document.

I shall leave it out of the template letter as suggested, but raise at POPLA stage.

Thanks for your continued support

Maudise

Hi,

Please let me know if you'd rather I started a new thread with POPLA in the title, but thought for consistency I'd follow through here.

As expected, we got the rejection from LPS, hence forth known as The Theiving B......, via e-mail and so are on to the POPLA appeal stage.

I've read a lot of the template paragraphs and have put together the appeal below. Apologies for the length, but if someone could give it the once over it would be hugely appreciated. I've copied and pasted the general legal bumpf and interspersed with the facts specific to the case.

To whom it may concern,

Reference:XXXXX

I am the keeper of the vehicle which was issued with the Excess Charge Notice for ‘Parking without displaying a valid ticket’. I challenged this notice on a number of issues. I then received a rejection with regards to the alleged contravention. I would like to appeal this notice on the following grounds:
1. The Notice to Keeper fails to establish ‘Keeper liability’ under PoFA 2012
2. No landowner contract assigning rights to Local Parking Security Ltd to enforce contracts with drivers
3. 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
4. The car park in question was previously free on a Sunday, the day of the ticket, this recently changed with no warning, alteration to signage or sufficient grace period
5. Not a genuine contractual fee nor genuine pre-estimate of loss
6. The sum is extravagant and unconscionable and cannot be justified.

The Notice to Keeper fails to establish ‘Keeper liability’ under PoFA 2012

POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability. LPS can therefore only pursue the driver. As the keeper of the vehicle, I decline, as is my right, to provide the name of the driver(s) at the time. As PPC have neither named the driver(s) nor provided any evidence as to who the driver(s) were I submit I am not liable to any charge.
Specific omissions from the NTK received from PPC are as follows:

- The 'period of parking' is not 'specified', only the time of issue of an alleged PCN.
- It does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full.
- It does not state that the creditor does not know both the name of the driver and a current address for service for the driver.
- It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a PCN and NTK describe the 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the time of issue of the PCN. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the time of issue of the PCN because it only arises, if at all, at/after the time of issue of the PCN. The PCN amount should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff to be stated.
- It does not identify the creditor, who could be the landowner or another party, and specify how and to whom payment or notification to the creditor may be made. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are not the creditor
- It fails to show the arrangements for complaints and the address of the client/landowner, since this Operator is an agent (see my appeal point about the new Consumer Regulations which make this a requirement of any consumer contract from an agent of another trader).

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'.

No landowner contract assigning rights to Local Parking Security Ltd to enforce contracts with drivers
I add to my case the point of fact that LPS has no title in the land of Saracen’s Head, and no BPA compliant landowner contract assigning rights to pursue charges in their own name at court, or to allege trespass or loss if this forms the basis of their charge. I contend that LPS merely hold a bare licence to supply and maintain (non-compliant) signs and to post PCN as a deterrent.

I require LPS to provide proof of an unredacted, unambiguously-worded contract with the landowner that specifically states that LPS possesses authority to make contracts with the drivers themselves, and that gives them complete authority to pursue charges in their own name, in compliance with paragraph 7 of the BPA Code of Practice. Let it be known that a witness statement or documentation of ‘agreement’ to that effect will not be sufficient to show any legal right to pursue charges or provide any rights to litigation
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

It must be noted that the charges issued by third party, LPS, are both non-negotiated and imposed upon legitimate motorists who are not parties of equal bargaining power, or even aware that any ‘contract’ is possible. All terms are required to be both prominent and transparent to be both seen and accepted by the driver.

I maintain that the signage of the Saracen’s Head car park displaying core parking terms are non-compliant in their positioning, clarity and wording.

Furthermore, I contend that the signs in the car park fail to suitably inform/warn the driver of the core parking terms and consequences for any breach, and neither are the onerous charges prominent and legible enough so that a binding contract can be entered into between driver and operator, where the requirements of consideration, offer, acceptance, fairness and transparency of terms offered in good faith, can indeed be met.

The car park in question was previously free on a Sunday, the day of the ticket, this recently changed with no warning, alteration to signage or sufficient grace period

Further to the above, the alleged contract previously allowed for free parking on a Sunday. These terms and conditions appear to have changed without the acknowledgement of the legitimate motorists using the car park. As these changes occurred recently in relation to the ticket in question neither sufficient notice of change of terms and conditions previously agreed nor a sufficient grace period has been allowed in order to provide a fair contract between the parties.

As a POPLA Assessor has said previously in an adjudication:
“Once an Appellant submits that the terms of parking were not displayed clearly enough, the onus is then on the Operator to demonstrate that the signs at the time and location in question were sufficiently clear”.

LPS needs to prove that the driver actually saw, read and accepted the new terms, which means that I and the POPLA Assessor would be led to believe that a conscious decision was made by the driver to park in exchange for paying the extortionate fixed amount the Operator is now demanding.

Not a genuine contractual fee nor genuine pre-estimate of loss

Given the reasonable drop-hands offer was rejected, I assert that there is no genuine pre-estimate of loss being pursued as the cost of a day’s parking is £4 at the car park. The entire parking charge must, in accordance with the BPAs Code of Practice, be a genuine pre-estimate of loss in order to be enforceable under contract law, and therefore the inflated amount of £50, rising to £85 after a fourteen day period, is not a sum that might reasonably flow directly as a result of the parking event. Had the operator indeed accepted the offered amount, it would have been in exactly the same position in terms of business/staff/salary overheads as it would have been had there been no breach at all. Indeed, the only recoverable sum under the POFA 2012 is the sum of the ‘outstanding’ parking charge quoted above. Any additional fabricated costs cannot be applied to ‘top up’ the costs so that it matches the inflated PCN sum. The GPEOL calculation cannot include any tax deductible business costs such as administration, accounting, equipment or any other normal operational costs that do not flow directly from this particular ‘contravention’. As the Office of Fair Trading state: ‘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’.
I therefore require the parking company to submit a breakdown of how these costs are calculated. All of these costs must represent a loss resulting from the alleged breach at the time. Please note that the charges by the operator as ‘genuine loss’ are those allegedly incurred at the point of issuing the charge, and cannot include speculative future costs relating to internal appeal procedures or mounting a POPLA defence.

The sum is extravagant and unconscionable and cannot be justified.
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.

Lastly, it should be noted that the charge issued, based on terms that the Operator allege to be contractually binding, are, in fact, unreasonable, having not been previously negotiated and caused a significant imbalance to potential detriment. The charge is therefore an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘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.’

Furthermore, the charge contravenes the Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair:

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.’
5(1) ‘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. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.'

Please also note, from Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a 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.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'

I contend the above places the PCN issued by LPS firmly within the boundaries of the definition of ‘unfair financial burden’. Designed, perhaps, as a deterrent, the notices issued by LPS are nothing short of a disguised penalty, where the ludicrous sum of £50, rising £85 after 14 days is an unfair term based on its entirely disproportionate magnitude with respect to the alleged infringement of parking without purchasing a ticket from an out of order machine, with the immediate offer of remuneration for the three hours parked, where no damage or loss was incurred by the landowner, who, in this instance, is not LPS.

If LPS maintain that the parking charge in not punitive, I require a breakdown of the pre-estimate of the loss suffered by the operator to be provided, along with explanation of how it is possible for a blanket charge of £50, rising to £85, be applied no matter the breach or length of time that the breach occurred for (be it 3 minutes, 3 hours or 3 days!). I allege that the charge issued by Local Parking Security is disproportionate to the cost of parking, and that it is, in fact, being enforced as a contractual charge (as opposed to damage or loss).

In summary, on the above points I declare that the punitive charge issued by Local Parking Security Ltd. is both unfair and illegal, and respectfully request the appeal be upheld by POPLA and all charges rescinded.