F1rst Parking Lancaster University

clarkcj

The sign that they have cited as evidence says:
"Parking Notice
No parking at any time in this area
A penalty charge of £75 may be issued for failing to comply with the above condition
Then little illegible writing beneath it that isn't readable in the photo they have supplied"

Coupon-mad

clarkcj wrote: »

Excellent thanks very much for your advice, it's much appreciated.

I've done some calculations, my POPLA expires on 08/12/2015 and Day 57 after the parking event is Friday 11/12/2015.

So if i file my appeal centred around the fact that I didn't receive a NTK then they won't have time to send one out in time, correct?

Yep - I have done exactly that with a week to spare, and the PPC didn't manage it.

Coupon-mad

clarkcj wrote: »

The sign that they have cited as evidence says:
"Parking Notice
No parking at any time in this area
A penalty charge of £75 may be issued for failing to comply with the above condition
Then little illegible writing beneath it that isn't readable in the photo they have supplied"

Penalty?????

clarkcj wrote: »

The sign that they have cited as evidence says:
"Parking Notice
No parking at any time in this area
A penalty charge of £75 may be issued for failing to comply with the above condition
Then little illegible writing beneath it that isn't readable in the photo they have supplied"

So that differs from Beavis and should be argued very strongly, even with the old points like 'no GPEOL' and 'it's a penalty'. See John de Waal's article about the Beavis case. Cases can still be considered a penalty in your 'no parking/forbidden' situation, he thinks, who knows? The Judges hardly issued 'much needed clarity' and IMHO just made it worse for all concerned as it's even muddier now.

clarkcj

whoops, sorry, the exact wording is "Parking Charge Notice (PCN) of £75 etc..." not "Penalty". Apologies for any confusion

Coupon-mad

We knew it - but just making sure. Eye for detail is vital to win appeals.

Guys_Dad

Are they mad?

I quote "The charge is based on a pre-estimate of loss, and has been calculated using our company records. " There's an invite if ever I saw one.

So, demand a breakdown. And, of course, if they want to supplement that with a profit element, demand a VAT invoice.

clarkcj

Hello all. It's me again. Good news! I never received a Notice to Keeper! I have drafted up a letter, I'll post it in a nice new post so you can critique it. Thanks all!

clarkcj

"I write to you today as the registered keeper of the vehicle XXXXX, I wish to appeal the £75 Parking charge notice (PCN) issued by F1rst Parking.


I submit the reasons below to show that I am not liable for the parking charge:


1) No keeper liability in accordance with the POFA 2012.
2) Unreasonable and unfair terms – no contract agreed to pay £75. Fails the ‘Aziz test’.
3) No standing or authority to pursue charges nor form contracts with drivers
4) No genuine pre-estimate of loss.

1) Keeper Liability

As there has been no admission regarding who was driving the vehicle and no evidence of this has been provided, the keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with. One of these requirements is the issue of a ‘notice to keeper’ compliant with certain provisions. The operator failed to serve a ‘notice to keeper’ in any form, so POPLA will not be able to find that the charge notice is enforceable against the keeper.

2) Unreasonable and unfair terms – no contract agreed to pay £75. Fails the ‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £75 had there been negotiations in advance, the answer here is obviously no. One could have parked free on a nearby road. There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £75 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.


3) No standing or authority to pursue charges nor form contracts with drivers

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, F1rst Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. 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 put F1rst Parking to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between F1rst Parking and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to F1rst Parking

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

4) No genuine pre-estimate of loss
The Operator 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. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgement, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

I demand a breakdown of how the charge was calculated and, if supplemented with a profitable element, I demand a VAT certificate.

I look forward to hearing your response, thank you."

clarkcj

Bump up my post please

Umkomaas

Looks OK to me. A couple of points

I demand a breakdown of how the charge was calculated and, if supplemented with a profitable element, I demand a VAT certificate.

Not something you can 'demand' of POPLA. Not sure where this will take you in the context of the apeal. Is their charge a contractual one (you can park here in excess of the time limit as long as you pay us £75) or for breach of contract? The former is potentially VATable, the latter not.

Leave it out unless you can clearly make the case fatal around VAT.

In arguing 'Beavis', you might want to find out what the local council would penalise you for a similar 'misdemeanour' and compare that to your charge. If lower than your charge then you can play the 'extravagant and unconscionable' card.

The appeal should win on the 'No NtK' without the rest, but 'No Standing' with a demand for sight of the contract is always a good one to put into the mix - and POPLA have been upholding appeals where PPCs don't submit a 'full Monty' contract.

I suspect they may not even bother contesting this!