Calderdale Royal Hospital - CPP (Liberty Printers)

Castle

hookguy wrote: »

The letter I recieved was not a NTK, it was just an appeal rejection. The deadline for POPLA appeal is 30th December so unfortunately this does not overlap with the end of the NTK time so I don't think I have a valid arguing point there?

I'd suggest that you leave it in, (assuming that the NTK haven't arrived), because it would force CPP to prove otherwise.

hookguy

So I should keep it in stating that I haven't recieved it to this date, and that it doesnt comply with POFA or just that I haven't recieved it?

hookguy

Anyone able to give me more advice on this please?

salmosalaris

In point 1 it has already been pointed out that ot is para 8 of POFA that applies to windscreen tickets not para 9 .
Simply state that as an NtK has not been provided then you , as registered keeper , cannot be held liable for the charge as CPP have failed to meet the requirements of para 8 of schedule 4 of POFA and consequently cannot rely on the provisions of the act .

hookguy

Ah thank you, I think I misunderstood what other people were telling me on this matter! I've now edited to this, is that alright?:

As the keeper, I have not named the driver of the vehicle or provided a serviceable address for the driver of the vehicle. As the keeper of the vehicle, I can only be held liable for the Parking Charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. A Notice To Keeper (NTK) has not yet been provided by CPP, despite Paragraph 8 of Schedule 4 stating this as a requirement. There can therefore be no keeper liability.

hookguy

Hi everyone, I've now got 4 days until the POPLA deadline. I was hoping someone could read my final draft and help me with it? Also it is over the 2000 character limit but I don't know how I can shorten it down, can someone help me with this?

I am the keeper of the vehicle with registration number xxxxxxxxx

On 11/11/15 the driver received a windscreen ‘Civil Parking Notice’ from the Car Parking Partnership (referred to as CPP from now) over an alleged breach in terms and conditions at Calderdale Royal Hospital. The reasons specified on the notice were as follows;
-Causing Obstruction
-DYL/Cross Hatched Area
-Not Within Bay Markings

My original appeal on 30/11/15 to the operator CPP directly was rejected and I was supplied with a POPLA verification code. I contend that as the vehicles’ registered keeper I am not liable for the alleged Charge for the following reasons:-

1. A non-compliant, and erroneous Notice To Keeper (NTK), failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.
2. The lack of CPP’s proprietary interest in the land at the site and no contractual authority from the landowner.
3. Unclear and non-compliant signage, forming no contract with drivers.
4. Unreasonable and unfair terms.
5. No genuine pre-estimate of loss


1. A non-compliant, and erroneous Notice To Driver, failing to meet the conditions of Paragraph 9 of Schedule 4 of POFA 2012, therefore there is no keeper liability.

As the keeper, I have not named the driver of the vehicle or provided a serviceable address for the driver of the vehicle. As the keeper of the vehicle, I can only be held liable for the Parking Charge if the relevant provisions of Schedule 4 of the Protection of Freedoms Act 2012 have been satisfied. A Notice To Keeper (NTK) has not yet been provided by CPP, despite Paragraph 8 of Schedule 4 stating this as a requirement. There can therefore be no keeper liability. In addition the Notice to Driver (PCN) fails to comply with Paragraph 9 (2) of the Protection of Freedoms Act 2012.

The PCN issued to the driver does not specify a “period of parking”, it merely denotes a single point of time (10:30hrs) of the alleged parking event and charge issue. This does not constitute “proof of parking”, and also does not fulfil Paragraph 9 (2)(a) of Schedule 4 of POFA 2012, again invalidating their right to claim unpaid parking charges from the keeper of a vehicle under Paragraph 4(2)(a) of Schedule 4 of POFA 2012. The Operator cannot prove that the driver was parked in the alleged site at the time stated.


2. The lack of CPP’s proprietary interest in the land at the site and no contractual authority from the landowner.

CPP do not own the land at the site indicated in their Notice to Keeper to myself and have not provided me with any evidence that they are lawfully entitled to demand money from a driver or vehicle keeper. Accordingly, I require sight of a full copy of the actual contemporaneous, unredacted contract, signed and dated with the landowner (and not just a signed slip of paper saying that it exists) as I believe it would not be compliant in accordance with the British Parking Associations’ (BPA) Code Of Practice (COP) Section A, sub-section 7 and without it, CPP have no legal standing nor authority at the site which could impact on future visiting motorists. In the event that CPP should produce a ‘witness statement’, I would contend that there is no proof whatsoever that the alleged signatory has ever seen the relevant contract terms or indeed, is even an employee of the landowner. I would contend, if such a witness statement is submitted instead of the landowner contract itself, that this should be disregarded as unreliable and not proving full BPA compliance nor legal standing.
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 PEA 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.

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 unless they are deceiving the taxman.

3. Unclear and non-compliant signage, forming no contract with drivers.
The signs do not meet the minimum requirements in part 18. They were not clear and intelligible as required.

The BPA Code of Practice states under appendix B, entrance signage:

“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”

For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.

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 £60 in a carpark where they could have paid £2.50 for two hours had they seen the signs, which they did not. It was not a genuine attempt to contract free or unlimited parking in return for £60.
I also require evidence showing that the offence did in fact ‘cause obstruction’ as is stated on the PCN, as the driver states that they did not cause any obstruction and were correctly parked in a bay alongside other cars.

In addition, as the PCN had no VAT content to it, it cannot be for a service. It must therefore be a penalty.

4. Unreasonable/Unfair Terms

The Charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

“18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances.”

It goes on to state:

“Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a ‘disguised penalty’, that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.”

Confusing, ambiguous, poorly placed, and contradictory signage is far from transparent or obvious to drivers, as is disguising a penalty as a tariff. Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e)

"Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation."

Furthermore, Regulation 5(1) states that:

"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"

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that:

"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.”

Additionally, the European Court case of “Aziz v Caixa d’Estalvis de Catalunya” provides authority for this, and it is submitted that European Court of Justice decisions must be taken judicial notice of by lower courts in England and Wales. The test established in this case is whether the contract would have been agreed if both parties had sat down with lawyers to negotiate the terms.

"With regard to the question of the circumstances in which such an imbalance arises ‘contrary to the requirement of good faith’, having regard to the sixteenth recital in the preamble to the directive and as stated in essence by the Advocate General in point 74 of her Opinion, the national court must assess for those purposes whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to such a term in individual contract negotiations."

5. No genuine pre-estimate of loss

This car park is Pay and Display/Permit and as far as I can ascertain as keeper, a permit was displayed.

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 about GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

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.

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’’

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.

This charge cannot be 'commercially justified' either, so this Operator would be wasting their time to adduce the flawed and not persuasive 'ParkingEye v Beavis' small claims 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.''


In light of the points above, I respectfully request that my appeal is upheld, and the charge is dismissed. Thank you for your consideration of this matter.

Fruitcake

Delete your reg number now!

hookguy

my bad, sorry

Fruitcake

hookguy wrote: »

my bad, sorry

Your bad what?


Beware, PPCs read these forums as well. :eek:


The appeal looks OK to me but I'm not an expert. Wait for the more informed to take a look.

hookguy

For forgeting to remove the reg number! I just copied and pasted it from my word document shouldve though it through more haha.

Thanks for taking a look!