POPLA Appeal against Ethical Parking Management

andreihoff

Umkomaas wrote: »

They should be acting on behalf of tenants, not against them.

The letter they should be firing off to the PPC is 'Why are you issuing charges to the tenants we have brought you in to protect? You'd better have a pretty good answer!'

That would be the sensible thing to do but whether they will do that is another question...

My question now is; Do I wait to see if the NTK arrives or go straight onto POPLA?

Umkomaas

andreihoff wrote: »

That would be the sensible thing to do but whether they will do that is another question...

My question now is; Do I wait to see if the NTK arrives or go straight onto POPLA?

If you've already outed yourself as the driver then keeper liability no longer applies and waiting for a NtK is pointless.

So you need to get your appeal off to POPLA - but you might want to be not as hasty with that as with your initial appeal. If you've got time before the deadline have a read around the forum to see if there's anything further you might learn to help or refine your appeal.

Just remember to get it to POPLA by the deadline. If you're doing snail mail (do it electronically is better advised) do factor in the Christmas post. The deadline is pretty absolute - and there's no second chance. Kill it off at POPLA or it's potentially 6 years of uncertainty.

andreihoff

Umkomaas wrote: »

If you've already outed yourself as the driver then keeper liability no longer applies and waiting for a NtK is pointless.

So you need to get your appeal off to POPLA - but you might want to be not as hasty with that as with your initial appeal. If you've got time before the deadline have a read around the forum to see if there's anything further you might learn to help or refine your appeal.

Just remember to get it to POPLA by the deadline. If you're doing snail mail (do it electronically is better advised) do factor in the Christmas post. The deadline is pretty absolute - and there's no second chance. Kill it off at POPLA or it's potentially 6 years of uncertainty.

Well in that case, this is my final draft as I haven't been able to find much else to add to my POPLA appeal:

POPLA APPEAL

I should start this appeal by explaining the situation of how I was, as a keeper of the vehicle xxxxxx, issued with a £100 parking charge notice (PCN) from Ethical Parking Management. I am the registered keeper of the vehicle and this appeal will probe that I am not liable for the parking charge.

The grounds for this appeal are the following:

1. The operator adds various surcharges - a charge over £100 exceeds the appropriate amount

Adding a blanket ‘admin fee’ for all card payments is an illegal surcharge and so this ‘charge’ exceeds the arguably ‘appropriate’ amount:

(a) The maximum ceiling in the BPA Code of Practice is £100. There are neither grounds nor justification under the CoP or the applicable law, to add any extra processing costs. As far as the BPA Code is concerned, this rule exists for the obvious reason that any operator could circumvent the BPA '£100 maximum' every time, otherwise - and where would the line be drawn?

(b) it is also noted that the signage suggests they can add costs for getting keeper details from the DVLA but they cannot charge extra for this, which is a normal part of processing any private PCN. £100 is the maximum PCN for a BPA AOS member. Therefore the phrase "non-payment of the parking charge will result in further costs by way of the keeper's details being requested from DVLA and of enforcement" which is displayed on the signage is misleading and against regulations.

(c) Charging £1.75 fee for ‘all’ card payments including debit cards is banned under statute, in the Consumer Rights (Payment Surcharges) Regulations 2012 explained here:

gov.uk/government/uploads/system/uploads/attachment_data/file/452405/BIS-15-343-BIS-payment-surcharges-guidance.pdf

I do not believe it costs £1.75 for a debit card payment; explained here in an MSE article from 2013:

moneysavingexpert.com/news/cards/2013/04/credit-and-debit-card-fee-clampdown-begins

‘’While transaction processing costs vary by provider, consumer group ‘Which?’ has previously said it believes retailers pay no more than 20p for debit card transactions.’’

(d) An illegal premium rate number on the PCN and the signage (allegedly where the contract is 'formed') renders this demand unenforceable:

callcentrehelper.com/a-quick-guide-to-the-0845-and-0870-number-changes-43473.htm

This is also a specific breach of the BPA CoP 18.7:

''If you provide a telephone line to respond to complaints, challenges and appeals from motorists relating to the terms and conditions of parking they have entered into, these calls must not be charged above the basic rate.''

For the avoidance of doubt, any number starting 070, 084, 087 or 09 is clearly 'premium rate'.

A 'basic rate' number is one starting 01, 02, 03 or 080.

(e) Under the POFA 2012 Schedule 4 the only amount which can be (potentially) sought from a registered keeper is the amount of any outstanding parking charges as stated on a compliant and properly given ‘Notice to Keeper’ (NTK). There is no provision to recover any additional costs if not stated on a NTK and there is no provision to recover anything at all from a keeper, in cases where the operator fails to serve any NTK (see NTK appeal point below).

2. No genuine pre-estimate of loss.

The charge is a penalty and not a genuine pre-estimate of loss. In its parking charge notice, Ethical Parking Management has failed to sufficient evidence to justify the £100 loss the landowner might have incurred for the 10 minutes the car was parked in its property. For this charge to be justified, a full breakdown of the costs Ethical Parking Management has suffered as a result of the car being parked at the car park, is required and should add up to £100. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.

This charge from Ethical Parking Management is a third party business agent is an unenforceable penalty. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area.

POPLA and Ethical Parking Management will be also familiar with the well-known case on whether a sum is a genuine pre-estimate of loss or a penalty: Dunlop Pneumatic Tyre Company Limited v New Garage and Motor Company [1915] AC 79. Indeed I expect Ethical Parking Management might cite it. However, therein 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.'' There is a presumption... 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". My case is the same and POPLA must be seen to be consistent if similar arguments are raised by an appellant.

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’’

farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

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. As a result, no subdivisions 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.

3. Proprietary Interest

Ethical Parking Management has not provided enough evidence of their interest in the land as they have no legal possession which would give Ethical Parking Management any right to offer parking spaces, let alone allege a contract with third party customers of the lawful owner/occupiers. The registered keeper believes there is no contract with the landowner/occupier that entitles them to levy these charges and to pursue them in the courts in their own name as creditor. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.

I therefore put Ethical Parking Management to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Ethical Parking Management 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 Ethical Parking Management.

4. The Notice to Keeper is not compliant with the POFA 2012 - no 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.

5. The signage was not readable so there was no valid contract formed between Ethical Parking Management and the driver.

(a) There is no visible entrance signage per the requirements of BPA CoP 18.2

Entrance signs play an important part in establishing a
parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about
the terms and conditions for parking, you must also have
a standard form of entrance sign at the entrance to the
parking area. Entrance signs must tell drivers that the car
park is managed and that there are terms and conditions
they must be aware of.

(b) The BPA CoP section 13.2 describes a 10 minute period to comply or withdraw, this was not observed by the PPC and as such this was not a parking event. As evidence of this, 'Time monitoring the car' on the CBC is BLANK.

(c) There is no wording referring to who the parking is 'managed by' which is a mandatory requirement per BPA CoP Appendix B.

(d) The signage is small, warped, water logged and shows heavy signs of wear and tear making the writing unintelligible. This is made worse by the small font size and small distance between lines.

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.

Therefore the signage does not follow the BPA CoP standards highlighted in section 13, 18 and Appendix B.

andreihoff

Well, I've been lucky and my property manager got EPM to cancel the CBC. I hope the work I have put into my appeal above might be useful to someone one day.

The_Deep

GPEOL - 'extravagant and unconscionable' was pretty much blown out of the water by the Supreme Court in the Barry Beavis case judgment when they decided that £85 was neither extravagant nor unconscionable.


But did they. Perhaps it was in that case, it is certainly both in an "own space" event


... you need to leave out those two points in your GPEOL paragraphs - but leave the first one in.


I disagree, leave them all in, CM agrees with me.