UK Parking Solutions NTK/POPLA

Zemerin1

Hi all, as always thanks for the fantastic information.

Last posted here in 2014 regarding an Athena ANPR ticket, and have been having fun with PPCs ever since. Surprisingly, any NTKs sent have been received soon after the 28 day rule as set by POFA.

This time around with UKPS, I sent off an appeal as directed in the Newbies thread on day 21, and I received a fancy rejection letter complete with a POPLA code for new POPLA (whom I haven't had the pleasure of using yet)

To cut a long story short, I have not received a NTK. When writing my POPLA appeal, I am planning to use this as my first appeal point. The question which arises from this is this; if I do this and send the appeal in (before the 56 day deadline) could UKPS simply sent me a NtK, rendering this point useless?

Many thanks

Redx

yes , unless you time it correctly when you appeal as late as possible to popla

Zemerin1

Then a POPLA appeal just before the deadline it is! Thanks for the answer

Zemerin1

Evening all.

Just started putting together the aforementioned POPLA appeal. One interesting thing to note: car was parked in a college car park which requires a permit. UK Parking Solutions have kindly provided me with several photographs, including one zoomed out of a sign (with no small amount of glare on it)

The charge was issued on the grounds "Not parked in a designated area"

The only provided picture of the sign (both in letters received and viewed online) can hardly be made out- "UK Parking Solutions" at the top and "Permit Holders Only" at the bottom, with the rest out of the sign illegible.

Needless to say, my question is this. Can I use in my POPLA appeal that the sign clearly does not state/not visible that cars can not be parked outside of a space? (For those interested, the space in question is actually a space, thought the white lines are heavily faded as are the lines in the entire car park)

Thanks

Zemerin1

Hi guys, if someone could check over my POPLA appeal for me. I'm planning to send it off on the 18th, hence the dates.

I am the registered keeper of the above vehicle. I was not the driver. A parking charge notice was received from UK Parking Solutions on **/**/** for a parking charge of £100, with subsequent appeal rejection issued on **/**/** for a breach of contractual terms and conditions by the driver of the vehicle. The operator has failed to satisfy the strict requirements of schedule 4 of POFA and therefore cannot invoke its provisions to hold me liable as keeper .
I have denied all liability to UK Parking Solutions. Following rejection of my submission I wish to appeal on the following grounds:
1. No “notice to keeper received” therefore not compliant with POFA 2012
2. The signage was either not seen or not understood by the driver
3. The lack of UK Parking Solutions proprietary interest in the land and no contractual authority from the landowner.
4. Unreasonable and unfair terms
5. Unlawful Penalty Charge

Detailed submission

1) Notice to Keeper not properly given under POFA 2012 – no keeper liability
No “notice to keeper received” therefore not compliant with POFA 2012
As of Friday 18th December 2015, 59 days since the parking charge was issued, no formal “Notice to Keeper” has been received as stipulated in POFA 2012.
Therefore, UK Parking Solutions has not met the keeper liability requirements and, as a result, keeper liability does not apply. As the keeper of the vehicle I decline, as is my right, to provide the name of the driver(s) at the time. As UK Parking Solutions 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.

2) The signage on the ** site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
Any images provided by UK Parking Solutions show no comprehensible images of the signage within the site. Of the 6 images provided, only one image features a sign which is poorly focused and contains heavy glare, making it unreadable. UK Parking Solutions state the charge was issued on the grounds of "Not Parked in a Designated Area", yet as far as can be deduced from the signage, the only requirement is to display a permit.

3) The lack of UK Parking Solutions proprietary interest in the land at the ** site and no contractual authority from the landowner.
The Operator does not own the land in question and has provided no evidence 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. I 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 practice, 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 provides 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.

Should a basic contract be produced mentioning 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.

4) Unreasonable/Unfair Contract Terms.
There is no contract between UK Parking Solutions and I but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. According to the Office of Fair Trading, Guidance re Unfair Contract Terms:

‘It is unfair to impose disproportionate sanctions for 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...’

I believe UK Parking Solutions is in breach of the Unfair Terms Act 1977 and Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:
(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
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.

This is confirmed in the Office of Fair Trading’s extensive guidance on the UTCCRs 1999. The guidance includes the following advice:

‘The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a core term. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option.

‘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, or which purports to define what the consumer is buying, 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.’

This charge is not exempt from the test of fairness then. It represents 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.’ I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. This charge caused a significant imbalance in the parties' rights and obligations arising under the contract, which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts. For example, in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G, it was stated that:

‘whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.’

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.

5. Unlawful Penalty Charge
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket. This was the case in several compelling and comparable Court decisions such as UKCPS v Murphy April 2012 (a case involving a disabled bay and no Blue Badge, where the 'Parking Charge' was found to be a penalty). Also Excel Parking Services v Hetherington-Jakeman (2008) also OBServices v Thurlow (review, February 2011) and in Parking Eye v Smith (Manchester County Court December 2011).

The BPA Ltd (seeking advice on behalf of all AOS members, including UK Parking Solutions) was warned about such charges being unenforceable by the Office of Fair Trading in 2013. The information that the Office of Fair Trading gave to the BPA Ltd on parking charges expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists. It will not be recoverable if the court finds that it is being imposed as a penalty. If a parking charge is imposed for “parking outside of a designated area” under a contract, in order for it to be recoverable as liquidated damages, the court will need to be satisfied of a number of matters, including that it represents a genuine pre-estimate of the loss incurred and that it meets the requirements of applicable consumer protection legislation, for example the Unfair Terms in Consumer Contracts Regulations 1999. The OFT also expressed the view that the court will also need to be satisfied about who the consumer was contracting with and that this is the party bringing proceedings.
This transparently punitive charge by UK Parking Solutions is therefore unenforceable.

--END--

Yes, there's a fair amount of generic, copy-pasted stuff in there. More words to baffle the simple minds at UK Parking Solutions!

In regards to the signage paragraph I wont be returning to the location until mid January, meaning I can't go and get some pictures of the signs. Having looked at them previously, I recall them being fairly entertaining. I think the paragraph sums it up quite well -- A permit is clearly displayed on the vehicle, and the only picture where a sign is remotely legible is awful. You can just about make out "UK Parking Solutions" and "Permit Holders Only" in big red writing.

Obviously #1 should be a show-stopper, so I feel the remaining points are in suitable positions and this appeal should do the trick when I submit it on Friday (NTK deadline is today, giving it a few extra days on top)

Many thanks all!

Umkomaas

You might want to add the Aziz -v- Caixa d'Estalvis de Catalunya case into the Unreasonable/Unfair Contract Terms mix. Here's a starter (link) to get some understanding of the case.

https://en.m.wikipedia.org/wiki/Aziz_v_Caixa_d%27Estalvis_de_Catalunya

It's the BPA Code of Practice (note spelling of 'Practice').

Purely presentational - embolden each of your appeal section headers, and put a line space below each to separate it from the actual opening text to each section.

Others may be along to add further comment.

Zemerin1

Well, the time has come. I've received Their POPLA evidence pack, and despite the numerous spelling mistakes (I'd need to borrow some hands to count them all) it's 25 pages of complete waffle. Two things come to attention which I'd like some clarification on.

1. 5. The amount of the parking charge that the driver, was asked to pay is based on a genuine pre-estimate of loss we suffer, resulting from the breach of contract or act of trespass. Our parking charges are fair, reasonable and not disproportionately high. We consider the amount on the PCN as a reasonable charge for liquidated damages in respect of a breach of the parking contract and contend that it is not a ‘Penalty’ for a number of reasons. We have calculated this sum as a genuine pre-estimate of our losses as we incur significant costs in dealing with an appeal to ensure compliance to the stated terms & conditions and to follow up on any breaches of these identified as detailed above.

This paragraph basically states that this charge is a GPEOL. Please correct me if I am wrong. Could I then a) ask for a GPEOL breakdown of costs and then pick that apart. I take it the old rules still apply with new POPLA? GPEOL can't include the cost of the POPLA appeal etc.

2. This is my appeal winning point in my opinion. At no point have I been sent a Notice to Keeper, yet in the section labeled "Registered Keeper and Liability Trail" they not only claim that "the appellant has admitted to being the driver/keeper in their appeal" (I used the standard appeal in newbies), they claim to have also sent a NTK, then quoting the necessary POFA words.

THEN! On the very next page, not even 30 words later. They admit to not having sent a NTK in their "Timetable of events".

Needless to say, their evidence pack, if one can even call it that, is quite an entertaining read.

I eagerly await your comments, especially regarding the GPEOL.

Thanks again all!!

Umkomaas

This paragraph basically states that this charge is a GPEOL. Please correct me if I am wrong. Could I then a) ask for a GPEOL breakdown of costs and then pick that apart. I take it the old rules still apply with new POPLA? GPEOL can't include the cost of the POPLA appeal etc.

I'd be stating that in view of the absence of a GPEOL breakdown POPLA require the operator to provide one to assist their decision making process, or draw the conclusion that their GPEOL cannot possibly be anywhere near the £100 charge as, for starters, they appear to be under the impression that they can include in their GPEOL the full cost of the POPLA appeals process. State that you reserve the right to view and provide comment on any submitted GPEOL breakdown before any POPLA decision is reached.

I'd also ask POPLA to require the PPC to provide proof of admission as to the identity of the driver. In the absence of any such proof then POPLA should draw the appropriate conclusion, and proceed with your assertion that the PPC is attempting to pursue the keeper despite their admission they have not issued a compliant NtK.

In terms of general rebuttal strategies and examples, the following is standard (template) advice I give to posters asking for rebuttal pointers.


Here's an excellent example of how one poster dealt effectively and comprehensively with a PPC's Evidence Pack. I'm sure this will give you plenty of ideas on how to handle your case.

https://forums.moneysavingexpert.com/discussion/comment/67385911#Comment_67385911

And another one to consider.

http://forums.moneysavingexpert.com/showpost.php?p=67402366&postcount=26

And a further one.

https://docs.google.com/document/d/13uLICVZ13MeT7Q_4qzJUIyAn-jtVJUIVeCaaINpI2U8/mobilebasic

And a more recent one.

https://forums.moneysavingexpert.com/discussion/comment/69765991#Comment_69765991

Please note, some of these examples are now a little dated in the context of the fast moving world of private parking, so you need to be careful about blindly copying and pasting anything that 'looks good', and especially in the context of Beavis. But they do provide an insight into how to make a start on your rebuttal.

Coupon-mad

There's a very recent example rebuttal of evidence pack in the POPLA section in post #3 of the NEWBIES thread too, not sure if it's a different link than Umkomaas' examples but worth a look because it differentiates the evidence in a PTL case from the Beavis case (partly because they said their charge was for 'damages' like this lot are saying).

Zemerin1

They've never mentioned Beavis. My POPLA appeal made absolutely no mention of it, trying to avoid it all-together. Their evidence pack makes no mention of it too, they're trying to claim it's GPEOL. (Apologies if I've missed something here)

They're also alleging trespass. Original appeal refusal included "parking on private land where parking is forbidden. The drivers of these vehicles are trespassing". Further to this, their evidence pack says "BPA reduced the maximum recommended charge for that a motorist should be expected to pay for a breach of the parking contract or for an act of trespass from £150 to 100."

Ultimately there has been no NTK, I made this pretty clear in my POPLA appeal, yet they're still trying to push it. Will be interesting to see how this is dealt with.

Am I correct in saying that a valid NTK has to be titled "NOTICE TO KEEPER"? It wouldn't have been the original appeal refusal?

Thanks

Coupon-mad

I realise that they've not mentioned Beavis - but in your rebuttal you need to spell out how their argument about the loss, is nothing like the Beavis case. You need to show POPLA Assessors (who are new to this whole game!) not to apply Beavis where it should not apply, and instead then draw their attention to the arguments about GPEOL, which are rubbish.

You are right that a NTK is NEVER the rejection letter. Completely different and you'd know if you had one. Many firms forget when they deal with an appeal, assuming it's from the driver. But if you never said so, then the POFA applies, so that's another item to spell out for POPLA even though it was in your appeal, you should reiterate it.