Gwithian, Cornwall

kernowrn

Hello all!
Think you're all doing a great job here! Cut me some newbie slack here please!

The vehicle I own received a PCN from Llawnroc services in Cornwall on 2nd August 2015.
As keeper, I appealed originally 30 October 2015 after receiving a Reminder Letter on 13 October 2015 using the appeal letter template here (including GPEOL), and received a very long reply explaining the reasons for costs etc. Obviously the GPEOL route is closed as of 5 November, so I was hoping for some advice on a POPLA appeal as per technicalities. The 14 days for POPLA appeal end on Thursday 19 (I know its late in the day)

Some of the technicalities that I found that could be used are:

The reminder letter was received 71 days after the Notice to Driver (windshield notice). To my memory I received no Notice to Keeper, although the BPA CoP doesn't seem to specify the need for one. However, the Reminder letter must be send within 48 days (which ended 19 September) (Appendix E), if I have read correctly.

I don't remember there being clear entrance signs (well, I missed them in the first place! The parking scheme had only just come into place, and the signs are usually where event signs are) or clear signs at all, but I don't have any evidence of that. I don't know if the signs have been updated since the event. I am unable to get photographs unless through extraordinary effort (i.e. its a must!)
I also don't believe that they conform to the requirements as in Appendix B of the BPA CoP. I like to think I would have noticed a large blue P.

The car park is a pay and display car park. At no point in any documentation (notice to driver or reminder) was the amount that was unpaid/should have been paid stated. I believe this is a requirement under POFA/Appendix C of BPA CoP.

In the appeal letter, they talk about the business decision to charge 70, or 40 if within 14 days. However, later, and in other documentation, its 90, or 50 if within 14 days. Is this useful?

There is no evidence that the attendant waited the 10 minutes grace period required.

Lastly, that the claim is not commercially justifiable due to the fact that there is an alternate source of income for the company, unlike Parking Eye in PE vs Beavis, where the fine was the only source of income.

Do you think any of that is valid? How do I put that into a good POPLA format? I have searched the threads that I can find, and I have thoroughly read the BPA CoP.

Thanks for your help in advance!

Redx

look at the popla appeal examples in the newbies sticky thread, then draft your own using them as the basis for your appeal, changing or adding the draft based on your submissions above

once you have a working draft, post it and see if you get any comments or replies, because until you do so nobody will draft one for you, but people will critique whatever you have drafted

Coupon-mad

The 14 days for POPLA appeal end on Thursday 19 (I know its late in the day)

You have 28 days for POPLA submission. Tear your eyes away from the stupid 'discount' (bribe) deadline.

To my memory I received no Notice to Keeper, although the BPA CoP doesn't seem to specify the need for one. However, the Reminder letter must be send within 48 days

It's not in the CoP, it's in Schedule 4 of the POFA 2012 so obviousy your first appeal point as registered keeper will be the late Notice means you cannot be held liable in law. Then explain what flaws are in the Notice when the wording is compared to paragraph 8 of Schedule 4 (it's linked in the NEWBIES thread for that reason).

Your technicalities all seem valid points, now write them into a POPLA appeal!

Read post #3 of the NEWBIES thread, for links to a couple of examples of recent POPLA appeal wording and prepare a draft within your 28 days and show it to us, we'll help.

kernowrn

Please find below the first draft of my POPLA appeal!
Thanks in advance for your guidance:


[FONT=&quot]Re: Llawnroc PCN
POPLA Code: -[/FONT][FONT=&quot]
[/FONT][FONT=&quot]

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

1) No genuine pre-estimate of loss
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]4) The signage was not readable so there was no valid contract formed.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]5) There is no evidence that the attendant waited the required 10 minute grace period.[/FONT]

[FONT=&quot]
1) No genuine pre-estimate of loss
This car park is Pay and Display and as far as I can ascertain as keeper, a payment was made. Having received the Notice in the post I had very little information (see point #2) so went and checked the signage and it seems that up to 2 hours would have cost £TBC so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £TBC at the most. Llawnroc have not told me these details, despite it being a prerequisite of Schedule 4 (see point #2). [/FONT][FONT=&quot]
[/FONT][FONT=&quot]
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. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

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. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.[/FONT][FONT=&quot]

[/FONT][FONT=&quot]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 judgment, 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’’[/FONT]
[FONT=&quot]
[/FONT][FONT=&quot]In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.[/FONT][FONT=&quot]
[/FONT][FONT=&quot]
This charge cannot be 'commercially justified' either, as there is an alternative source of income from the Pay & Display machine, and therefore the parking charge notices are a secondary income, unlike ParkingEye in ‘ParkingEye v Beavis’¸ where the parking charge notices were a secondary source of income, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' Supreme Court decision. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. [/FONT]
[FONT=&quot]POPLA Assessor Chris Adamson has stated in June 2014 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.''[/FONT][FONT=&quot]

[/FONT][FONT=&quot]2)[/FONT][FONT=&quot] The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
I content that the Notice to Keeper is not compliant with the POFA 2012 on two points:[/FONT]

[FONT=&quot]A) [/FONT][FONT=&quot]The Notice to Keeper was not sent in the required time frame[/FONT]
[FONT=&quot]B) [/FONT][FONT=&quot]The Notice to Keeper does not state the amount that should have been paid[/FONT]

[FONT=&quot]A)[/FONT][FONT=&quot] The Notice to Keeper was received 71 days after the alleged parking contravention, and a Notice to Driver on the windshield. The Notice to Keeper must be sent within 48 days of the contravention occurring, which means that it must have been sent by the 19 September 2015. The Notice to Keeper was sent dated 13 October 2015, 71 days after the Notice to Driver and contravention occured. Therefore, the Notice to Keeper is not compliant with POFA 2012, and the keeper is not liable. [/FONT]

[FONT=&quot]B)[/FONT][FONT=&quot] As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed![/FONT][FONT=&quot]

[/FONT][FONT=&quot]I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was a failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator is required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

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, Llawnroc 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 Llawnroc to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Llawnroc 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 Llawnroc.

4) The signage was not readable so there was no valid contract formed between Llawnroc and the driver

[/FONT]
[FONT=&quot]Signage at the site is impractical for the type and layout of the road. Being a tight turn immediately followed by a single track gravel path, traffic is required to look well ahead to ascertain whether the track ahead is clear of oncoming traffic. Placing a sign in this location is dangerous for drivers and is designed only to trick the average motorist. Furthermore, regarding the ‘Pay Here’ cone alluded to in the PPC Stage Appeal Rejection letter, a cone does not constitute adequate signage to presume a contract, and the Operator’s belief that it does so and choice to use it in their operation gives a clue to the cowboy way in which this car park is managed by the Operator, and the level of adherence to other basic Codes of Practise.
[/FONT][FONT=&quot]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.[/FONT]

[FONT=&quot]5) There is no evidence that the attendant waited the required 10 minute grace period.[/FONT]

[FONT=&quot]British Parking Association Code of Practice 13.1 – 13.4 require a 10 minute grace period to be allowed. There is no evidence that this was adhered to by the parking attendant. [/FONT]
[FONT=&quot]

This concludes my POPLA appeal.

Yours faithfully,[/FONT][FONT=&quot]

---

Question points:

Am I right in thinking that the letter entitled ''Reminder Letter'' is the same as the ''Notice to Keeper'' after a windshield ticket ''Notice to Driver''??[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]I've added in details as to why this case differs from ParkingEye v Beavis, if anyone wants to suggest anything else I can put in to see if POPLA will accept these differences as a test, then feel free!

Many thanks!

[/FONT]

kernowrn

Deadlines coming up soon so I'd appreciate any help guys! Thank you

catfunt

Your Point 1, GPEOL is very difficult (if not almost impossible) to win with, following Beavis.

Wait for more expert views, especially those who have seen a good number of recent (last month) POPLA decisions, but I'd be thinking about either dropping it altogether, or making it the last point.

Are they claiming that the reminder letter you got followed an earlier Notice to Keeper (following the windscreen ticket)?

Umkomaas

I've skimmed over it - here are some observations:

GPEOL

This charge cannot be 'commercially justified' either, as there is an alternative source of income from the Pay & Display machine, and therefore the parking charge notices are a secondary income, unlike ParkingEye in ‘ParkingEye v Beavis’¸ where the parking charge notices were a secondary source of income, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' Supreme Court decision. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area.
POPLA Assessor Chris Adamson has stated in June 2014 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.''

This all looks a jumble and doesn't help your case, especially:

the flawed and not persuasive 'ParkingEye v Beavis' Supreme Court decision.

which blows this part out of the water. The Suoreme Court Judgment is final. I wouldn't be arguing in the appeal that it's 'flawed and non persuasive'!

You could leave all of the above out - it doesn't help in its current format.

NO KEEPER LIABILITY

Put this in at point 1 - should be enough to save the assessor going any further

SIGNAGE

You might want to quote specifics from the BPA CoP para B18 and Appendix B

From the quick scan, looks OK - notwithstanding the above.

HTH

Coupon-mad

kernowrn wrote: »

Deadlines coming up soon so I'd appreciate any help guys! Thank you

Posts 5 and 6 I just added on this thread will be relevant to you I expect, to some extent:

https://forums.moneysavingexpert.com/discussion/5370193

You DO need to challenge the basis of the charge to get them to show their hand. If they cannot or don't bother to justify it a la Beavis case (not just shouting 'ner ner, Beavis!') then at POPLA evidence pack stage around Christmas, you will then be able to knock them down on that point, like a skittle.

'No GPEOL' still exists in plenty of consumer contract situations. The penalty rule was potentially 'engaged' in Beavis, it's just that PE managed to convince the judges IN THAT CASE that it was disengaged. And in Beavis, PE did not argue their charge was damages for breach. They said the opposite, that is wasn't, which is why they didn't have to show a GPEOL. Let's see if Llawnroc can do that...so if it were me I would actually leave in no GPEOL more or less as written (for the reasons shown in the linked thread).

Once we see some new POPLA decisions we can come up with a better worded challenge but what we don't want to do is tell a PPC what they should be saying, so 'no GPEOL' as an argument, IMHO, is not a bad thing to hook them into a false sense of security.

Make sure you come back at evience stage URGENTLY around Christmas as you only get seven days to comment and that stage should prove vital, IMHO (although we've hardly seen any new POPLA decisions yet).





Please note: I am NOT involved in any 'paid for' appeals service.

Umkomaas

@OP. You will probably feel that my and C-m's advice on GPEOL are contrary. I'm happy to cede to C-m's interpretation, so do go with her advice and we can then see what the PPC makes of it. Don't be confused by our seemingly contradictory points of view.

We're in the early stages of analysing and testing for points of weakness with PPCs/POPLA post Beavis. As C-m says, let's see what Llawnroc make of it. Cue dribbling spittle!

kernowrn

Just appealed using the above letter, taking out the flamboyant wording pointed out (A lot of this was taken from another appeal), and swapping round point 1 and point 2.
Thanks for your help, Ill keep you posted!

kernowrn

Hi guys,

So I submitted my appeal at around 10 last night. By midnight, I had a reply from POPLA informing me that the evidence pack had been submitted. Either they threw it together very quickly, or they sent a pre-made one, either without looking at the appeal, or from having previous knowledge of the appeal points. The latter is a possibility with this being a public forum. Have you had experience along those lines?

Many thanks