F1rst parking charge at university

thequeenisclarice

Hi,

To start, i've read the newbies thread so I understand the process.

I have received a parking charge notice for having no pay and display/permit showing in a car park.

The problem is, I believed the permit I had was valid (it said from 2014-2015) however it turns out it has expired but I only realised this after I was charged.

But, I thought the car park was split by permit and free to park, because there are only consistent and visible signs on the left side of the road that say 'student permit holders only', so I parked on the right side of the road because I thought this was free parking and there was no space on the permit side, which at this point i still believed my permit was sufficient any way.

The car park is free to park from 6pm-8am the next day permit or no permit, I had been parked there from night time and was charged at 10am. So sometimes the permit side is full with people making use of the free parking, hence why I parked on the other side.

The road sign does not mention anything about permit parking either which I felt was misleading.

I appealed with the usual "will not name driver" and also mentioned that I had a permit on display. They rejected my appeal saying that I had an expired permit (although the photo they took is very blurry) and that I either pay, go to Popla or they will send the 'debt collectors on me'.

The annoying part is that I would have parked anywhere else if i knew this would be the case. When I went back to the car park I saw there was one high up sign at the beginning of the car park

Any help for POPLA?

Redx

do some research on recent popla appeals, some are linked via that NEWBIES sticky thread so start with those

then look at a forum search using words like UNIVERSITY etc and find similar threads so you can see what they were advised and have written

draft up a popla appeal and post it for critique by members here

Coupon-mad

Uni of Bath? Uni of Lancaster?

I appealed with the usual "will not name driver" and also mentioned that I had a permit on display.

How does that make sense? I hope you did NOT write that!

enfield_freddy

if you do a forum search of the parking co , all will be revealed ,

thequeenisclarice

Coupon-mad wrote: »

Uni of Bath? Uni of Lancaster?

How does that make sense? I hope you did NOT write that!

I did write that, because I believed my permit valid, until I had realised it had expired

I didn't say "I had a permit" I said there is a permit displayed clearly in the photographs which they took.

enfield_freddy

now do a forum search for all the relevant cases with this company , read , understand and formulate an answer to them

thequeenisclarice

enfield_freddy wrote: »

now do a forum search for all the relevant cases with this company , read , understand and formulate an answer to them

Thank you, will do

Is my appeal pointless now that I mentioned that I had a permit (but it was expired)

PPC_hater

dunno , do as above and look for similar situations

thequeenisclarice

I was thinking to wait for NTK to come through the post so as the registered keeper I could argue (let me know if the keeper liability doesn't fit):



My appeal is based on the following grounds.

1. No breach of contract and no genuine pre-estimate of loss.
2. No Keeper Liability
3. Contract with the landowner – no locus standi.
4. Unclear and non-compliant signage, forming no contract with drivers.

To expand on these points:

1. No breach of contract and no genuine pre-estimate of loss
The entirety of the parking charge must be a genuine pre-estimate of loss in order to be enforceable. As the PCN sum is massively inflated over and above the stated tariff, I require F1rst Parking LLP to submit a breakdown of how this sum was calculated prior to the parking event, as being capable of directly flowing from a minor alleged breach.

The F1rst Parking LLP Notice to Driver 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 about GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges. The British Parking Association Code of Practice uses the word 'MUST': "19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.''

The charge of £75 cannot be 'commercially justified' so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has 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.''

In ParkingEye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
Also in the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, 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”. My case is the same and I respectfully request my case is upheld and the charge is dismissed.

2. No Keeper Liability
F1rst has failed to comply with POFA. Schedule 4 paragraphs 8 and 9 of the PoFA stipulates the mandatory information that must be included in the Notice to Keeper. If all of this information is not present then the Notice to Keeper is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver. The NTK issued by F1rst fails on four counts:
• 8(2)(a) – there is no mention of the period of parking to which the notice relates
• 8(2)(b) – the notice does not advise that the driver is liable for the parking charge and the amount and that it has not been paid in full
• 8(2)(c) – the notice does note state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b)*, (c) and (f);
• 8(2)(i) – the notice does not specify the date of on which the notice was sent.

As the Notice to Keeper fails to meet the requirement of Paras 8(2)(a), 8(2)(b), 8(2)(c), 8(2)(e) and 8(2)(i), the keeper cannot be held liable.
F1rst have claimed that myself as the registered keeper have made contact with the university about this charge, as the registered keeper, I have made no contact with anybody except F1rst Parking LLP regarding this charge. F1rst Parking LLP cannot make concrete assumptions of the driver's details.

3. F1rst Parking LLP do not hold sufficient interest in the land to offer a motorist a contract to park. They have no locus standi.

F1rst Parking LLP parking do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP parking has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

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.


So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET parking and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked):

I refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

In other words, they are not, as the Operator asserts, a contractual term. If they were a contractual term, the Operator would have to provide a VAT invoice, to provide a means of payment at the point of supply, and to account to HMRC for the VAT element of the charge. The Appellant asserts that these requirements have not been met. It must therefore be concluded that the Operator's charges are in fact damages, or penalties, for which the Operator must demonstrate his actual, or pre-estimated losses, as set out above.

4. Unclear and non-compliant signage, forming no contract with drivers.
Due to their inconsistent positioning of signage which are unclear and unlit, followed by the fact that they are very low down and blocked by parked cars, the signs in this car park are very hard to read and see. There is also no signage on entrance to the specific car park that specifies about the charge that a driver is able to see. I contend that the signs and any core parking terms that F1rst Parking LLP are relying upon were too inconsistent for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. I require signage evidence in the form of a site map and dated photos of the signs at the time of the parking event. I would contend that the signs (wording, position and clarity) fail to properly inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011. As such, the signs were not so prominent that they 'must' have been seen by the driver - who would never have agreed to pay £100 in a free car park - and therefore I contend the elements of a contract were conspicuous by their absence.

Many thanks,

thequeenisclarice

Coupon-mad wrote: »

Uni of Bath? Uni of Lancaster?

How does that make sense? I hope you did NOT write that!

Just for consideration this was what my actual appeal said:

I, as registered keeper, wish to invoke your appeals procedure. The driver also has a student permit which visible in your evidence. If you believe another offence was caused you must ensure that your signage is well lit from the period that it is free to park so that the driver can comply - this was not the case. In any event the charges are penal and not a genuine pre estimate of loss as well as being an amount larger than permitted under the BPA code of practice to which you subscribe.

Umkomaas

The charge of £75 cannot be 'commercially justified' so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway, due to be heard in February 2015). POPLA Assessor Chris Adamson has stated in June 2014 that:

This is just so out of date. Significant changes have occurred since then.

Also in the case of Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79, there is the classic statement, in the speech of Lord Dunedin, 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”. My case is the same and I respectfully request my case is upheld and the charge is dismissed.

Pretty much trashed, I'm afraid, by the Supreme Court on 4th November 2015:

"an ancient, haphazardly constructed edifice which has not weathered well”

A quick precis of Beavis to bring you up to date:

http://www.ortolangroup.com/2015/11/stopp-press-reasonable-parking-charges-are-not-unenforceable-penalties-supreme-court-decides-important-penalty-clause-case/

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between MET parking and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked):

Where do MET fit in?

HMRC -v- VCS went further to the Court of Appeal and the original judgment was overturned in favour of VCS.

Your draft has drawn from very old appeals and needs to be totally revised - start again, I'm afraid. Please check recent links to appeals put in the NEWBIES FAQ sticky (post #3) by Coupon-mad - they are much more contemporary.

You really must, at least, try to understand what it is you're copying and pasting in your appeal. Where there are obvious errors - as highlighted above - it can only have the effect of watering down/undermining any points you are making.

One other point - anything quoted from 2013 is hardly 'recent'.

Have another go, because I worry about your prospects of success with your initial draft.