Serious help needed with Private PCN

Mr_Reality

In the case of Dunlop Pneumatic Tyre co v New Garage Motor co (1915), Lord Dunedin stated 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" and "there is an assumption that it is penalty when a single lump sum is made payable by way of compensation on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

In the case of Parking Eye v Smith in Manchester County Court December 2011, the Judge ruled that the only amount the Operator could claim is the amount that the Driver should have paid into the machine. In this case, as stated earlier, no monetary loss occurred to either the Operator or to the Landowner.

I therefore require the Operator to submit a full breakdown of their genuine pre estimate of loss to show how this loss was calculated in this particular parking area and for this particular alleged breach.
Operational business costs cannot possibly flow as a direct result of any breach as the operator would be in the same position whether or not any breaches occur.

We 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 operator will no doubt state that loss was incurred as a result of the appeals process after the parking charge notice was issued but in order for this to represent a genuine pre estimate of loss, they must first show that they incurred an initial loss as a direct result of the alleged breach.

This initial loss is fundamental and without it, costs incurred subsequently cannot be reasonably claimed to have been caused by the breach and as I have stated earlier - there was no initial loss.

Christopher Adamson stated in a POPLA appeal against VCS Ltd that

Mr_Reality

"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 reasonable 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. In this case it is clear that the dominant purpose of the charge is to deter parking for longer than the time paid for. Accordingly, I am not satisfied that the charge can be commercially justified".

In another recently upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs which were made up of general business costs was commercially justified. She said:

"the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant".

The same applies in our case, and POPLA must show consistency where similar arguments are raised by appellants. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can be neither be commercially justified or proved to be a genuine pre estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.

2) Contract with Landowner

The Operator does not own the land in question and have provided no evidence that they are lawfully entitled to demand money from a Driver or Keeper. They own neither proprietary or 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. We 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 provide 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.

Even if a basic contract is produced that mentions 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
The wording of the signage is unclear and ambiguous

Aquila have two sets of signage 1) stating in a strict pohibited red circle “No Parking” 2.) Premier Park notice of contractual terms and conditions as indicated - no parking without valid permit, ticket or written authority.


Premier Park sign can reasonably be interpreted as an invitation to residents and prospective residents of Aquila to park on the land.

There is a clear contridiction if no parking is allowed on any terms than Premier Park are causing confusion by displaying their contary signage.

No information is offered on how and from where a displayable permit may be obtained

Mr_Reality

The signs in this car park are unclear, to the extent that they are incapable of forming a contract even if the driver had seen and agreed to the terms, which is not the case in this instance.

We therefore require that the Operator submit evidence of the fact that their invitation to contractual parking is not a contridiction and confusion of the No Parking sign adjacent to their parking notice.

We 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 employee, subcontractor or other agent (“attendant”), who acted on behalf of the operator within the car park and took the photographs, has made no mention in the PCN of trying to interact with the driver. In particular, no attempt was made by the attendant:

to explain the terms and conditions under which the operator wished parking to be conducted;

to request that the vehicle be removed;

to inform the driver where and how a permit may be obtained;

to engage in negotiation of a contract or make an offer;

to deliver a copy of a contact in durable form;

or to solicit a fee for parking.

By not engaging in any of the above interactions despite having a clear opportunity to do so, the attendant acting on behalf of the operator granted de facto permission for the vehicle to be parked without charge, at least for the short period during which it was there.

No detailed terms relating to the operator’s onerous and inflated penalty charge were visible, and it is therefore apparent 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.

The only wording on the signage which might be construed as a requirement to pay a fee is within the “terms” relating to parking without permission.

Any contract for parking must necessarily grant permission for parking, so the “terms” and any requirement to pay a fee cannot apply to such a contract.

No monetary value is associated with the “parking charge fee”.

Mr_Reality

The sum of £100 relates to a “parking charge notice”. The only other context in which a parking charge notice is mentioned is that of the vehicle “receiving” such a notice (presumably by having the notice attached). Since the vehicle (as opposed to the keeper) did not receive a parking charge notice, no payment can be due.

No information is given on who is competent to grant permission: whether the operator, the proprietor of the land, any or all of the businesses located in the buildings referred to in Sign B, or all of the above.

No explanation is offered as to whether permission is always associated with issue of a valid displayable permit or may independently be granted or obtained

No information is offered on how and from where a displayable permit may be obtained

The signs in this car park are unclear, to the extent that they are incapable of forming a contract even if a driver had seen and agreed to the terms.

The operator has no right to recover parking charges from the keeper through the provisions of Protection of Freedoms Act 2012 (“PoFA”).

In the following paragraphs, “Section” means a paragraph or section of Schedule E of the PoFA

No notice was attached to the vehicle or given to the driver, so Section 7 does not apply

Additionally, 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.

Once again, we request that our appeal is upheld and for POPLA to inform Pfemier Park to cancel the Penalty Charge Notice.

Yours faithfully,

THE REGISTERED KEEPER

Mr_Reality

the evidence pack sent to me include

1. Evidence checklist 2. Case summary and rules/conditions
3. Parking charge notice and any notes 4. Registered keeper details and liability trail. 5. Original representations and notice of rejection 6. Images, plans etc. 7. Other evidence.

Their case summary reads -

Site - xxxxxxxx

Reasons for issue - Parking in No Parking Area.

Actions taken - Parking Charge Notice (PCN) issued to the registered keeper as the vehicle was parked in a manner whereby the driver became liable for a parking charge. Letter received. The Appellant claimed that no contravention occurred. Letter sent refusing the appeal. The account was held for 14 days at £60.00 then at £100.00 thereafter.

(They then enclose copies of the signage at the site). The appellant has not denied seeing said signage. These signs are situated throughout the site and clearly state that vehicles must park in a marked bay. From the photographic evidence, it can clearly be seen that the vehicle has been parked on the pavement. It is the responsibilty of the motorist to ensure that they have read and parked in compliance with the terms and conditions. We request that the appellant's appeal be refused. Could we request that this case is not heard until after the supreme court have made a decision regarding the genuine pre estimate of loss case Beavis V Parking Eye, in view of the Appellants comments.

There is a copy of the contract (not original) dated from 2012 for 12 months and ongoing afterwards until notice. The client details has 3 sections blocked out i believe it is the email and contact number. The client printed name is also blanked out but the signature is visible why would they do that?

Again i believe that the signage is contradictory to have both clear "No Parking" sign and PCN on the same area.

Also why are they in agreement for POPLA to hold off a decision until after the Beavis v PE case? is it that they are not confident of winning this or are they hoping the case goes in PE's favour?

Anyways are there any recommendations in replying to the evidence pack concerning this?

thank you!

zoonyx

Sly and Deceitful?

Private parking companies?

Surely some mistake?

The_Deep

What about v.a.t.? If this is a contractual charge they must account for v.a.t. If they have not it is either damage for breach of contract or trespass, but in either case is severely limited to a sum far below that which they are demanding. More reading:


https://forums.moneysavingexpert.com/discussion/5033796=

https://forums.moneysavingexpert.com/discussion/5195437

https://forums.moneysavingexpert.com/discussion/5087925=

If you suspect tax evasion go here

https://forums.moneysavingexpert.com/discussion/5087925

Guys_Dad

Suggest you read the Beavis summary from the supreme court and rewrite your tome.

Redx

Mr_Reality wrote: »

Also why are they in agreement for POPLA to hold off a decision until after the Beavis v PE case? is it that they are not confident of winning this or are they hoping the case goes in PE's favour?

its gone in Parking Eyes favour about a half hour after you wrote your last post

therefore not a gpeol is dead

Mr_Reality

Hi all

Just an update meant to do this earlier but have been extremely busy. Any way a big thank you to this forum and all the support given as my POPLA appeal was successful! copy of reply below -

Assessors Name - Timothy Jessop

POPLA Code - 6662515562

Aquila Residential Aprtments Cardiff Bay

[FONT=&quot]Allowed [/FONT]–[FONT=&quot] March 2016 [/FONT]
[FONT=&quot][/FONT]
[FONT=&quot]Your parking charge Appeal against Premier Park.[/FONT]

[FONT=&quot]Thank you for your patience while we considered the information provided for your Appeal.[/FONT]

[FONT=&quot]We have now reached the end of the Appeal process and have come to a decision. The decision is final and there is no further option for Appeal.[/FONT]
[FONT=&quot]The Operator issued parking charge notice number XXXXX, arising out of the presence of a vehicle with registration mark XXXXXX.[/FONT]

[FONT=&quot]The Appellant Appealed against liability for the parking charge.[/FONT]

[FONT=&quot]The Assessor has considered the evidence provided by both parties and has determined that the Appeal be Allowed.[/FONT]

[FONT=&quot]The Operator should now cancel the parking charge.[/FONT]

[FONT=&quot]Assessor summary of operator case:[/FONT]

[FONT=&quot]The operator’s case is that the appellant’s vehicle was parked outside of a marked bay. Assessor summary of appellant case:[/FONT]
[FONT=&quot]The appellant’s case is that the signage in the car park was inadequate and that the operator has provided no evidence of a contract with the landowner.[/FONT]
[FONT=&quot]They have also stated the Parking Charge Notice (PCN) is non-compliant with the Protection of Freedoms Act (PoFA) 20 12 and does not demonstrate a Genuine Pre-Estimate of Loss.[/FONT]

[FONT=&quot]Reasons for the Assessors determination: The operator has provided a copy of the PCN issued following the parking incident.[/FONT]
[FONT=&quot]As the appellant has not ›been identified as the driver I must ensure this PCN has met the requirements of PoFA.[/FONT]
[FONT=&quot]Schedule 4, Paragraph 9 of PoFA states the PCN must (9f) warn the keeper that if after the [/FONT]

Period of 28 days beginning with the day after that on which the notice is given —
[FONT=&quot](i) [/FONT][FONT=&quot]the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and[/FONT]
[FONT=&quot](ii) [/FONT][FONT=&quot]the creditor does not know both the name of the driver and a current address for service for the driver,[/FONT]
The creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;”
The PCN issued to the appellant states “If within 28 days we have not received full payment or driver details, under Schedule 4 of the Protection of Freedoms Act 2012, we have the right, subject to the requirements of the Act, to recover the parking charge amount that remains unpaid from the keeper o / the vehicle. “
I this case I do not consider or that the operator has, fully met the requirements of PoFA as by informing the appellant it can seek to recover payment after 28 days, it has failed to meet section (9f) as this 28 day period will not begin until the day after the notice is given.
As such I cannot conclude that the PCN has been issued correctly.

[FONT=&quot]Accordingly, the Appeal Allowed. [/FONT]
[FONT=&quot]Yours sincerely[/FONT]

[FONT=&quot]
[/FONT]