Calderdale Royal Hospital - CPP (Liberty Printers)

Coupon-mad

In the headings you have put:

1. A non-compliant, and erroneous Notice To Keeper,

but then you have put in the main appeal:

1. A non-compliant, and erroneous Notice To Driver


Can we be assured that the keeper never said nor implied who was driving? Also if the keeper appealed to the windscreen PCN, did you never get a Notice to Keeper at all? If not, then the wording about 'no keeper liability' should be along these lines:

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. This operator failed to serve a ‘notice to keeper’ at all. As there has been no admission regarding who was driving - as the registered keeper, I was the appellant throughout, as is my right - and no evidence of this has been produced, it has been held by POPLA multiple times in 2015 that a parking charge cannot be enforced against a registered keeper without a NTK.

And the UTCCRs have been replaced by the Consumer Rights Act, so change the unfair terms section to reflect the current law.

And get rid of the truly ANCIENT stuff about VCS and also ParkingEye v Clarke; where are these 2013 old templates surfacing from?! In the NEWBIES thread under POPLA in post#3 of it, I only link VERY RECENT examples, so use them, read them and change your draft. In particular, your 'no GPEOL' section has lots of irrelevant stuff - but it does need to be there, in a shorter form. So read the newer examples and use what's been said since November in other threads.

Get rid of this stuff:

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.

hookguy

Thank you for the feedback. I've now edited the NTK bit (an NTK has not been served yet). I also confirm that I only appealed as the keeper and not the driver and did not mention who the driver was.

I've changed the GPEOL section to something much shorter similar to one from a recent successful appeal:

The charge of £60 is punitive and unreasonable, contravening the BPA Code of Practice section 19. The Operator must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so the Operator have no cause of action to pursue this charge. In no way does it absolve the Operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge “cannot be punitive or unreasonable”.

The Operator cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe the Operator are likely to be paid by their client - so any such payment income must be balanced within the breakdown the Operator supplies and must be shown in the contract.

For the Unfair terms section, I can't find anything about the Consumer Rights Act in any recent appeals, can you help me in this regard? Should I get rid of the stuff about the UTCCR and replace it with a section on the Consumer Rights Act? And should I keep the section on the Aziz v Caixa d’Estalvis de Catalunya decision?

Thanks again!

Fruitcake

hookguy wrote: »

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!

Oh, I thought you had a bad head or bad leg. I knew what you meant. Don't worry, that's just me. If someone says "my bad" instead of "my mistake" I always say your bad what?

Coupon-mad

hookguy wrote: »

Thank you for the feedback. I've now edited the NTK bit (an NTK has not been served yet). I also confirm that I only appealed as the keeper and not the driver and did not mention who the driver was.

For the Unfair terms section, I can't find anything about the Consumer Rights Act in any recent appeals, can you help me in this regard? Should I get rid of the stuff about the UTCCR and replace it with a section on the Consumer Rights Act? And should I keep the section on the Aziz v Caixa d’Estalvis de Catalunya decision?

Thanks again!

Glad to hear you haven't named the driver nor implied who that was.

I would keep in Aziz, even thought the Judges in the Beavis case kicked it astonishingly into touch, deciding SOMEHOW that an average driver 'would have' agreed to pay £85 rather than just drive round the corner and pay £1.50. I'd keep it in merely to see how the PPC respond.

Re the Consumer Rights Act, we've not had much discussion on that yet because it was only enacted 2 months ago - but I think, much of what was on the UTCCRs is in the CRA, but with different wording perhaps.

You could try searching for the CRA and then {control and F} search the document for wording like 'penalty' and 'disproportionate' and find some new quotes. We haven't done that yet, sorry, but you could easily find a few lines from the CRA I suspect just by searching for phrases taken directly from those we used to quote from the UTCCRs.

The GPEOL argument is certainly better shorter (the two paragraphs you've used now are fine) and I recommend (despite Beavis, or maybe because of it) 'no GPEOL' should always be there, to make the PPC respond to explain the nature of their charge. You want them to slip on that banana skin because not many can argue their charge to be like the Beavis case, neither based upon the facts nor based upon the way it was argued because most PPCs are too stupid to interpret it.

You'll be back here in a month discussing how to rebut the evidence pack, if the PPC contests it.

hookguy

Hello everyone,

CPP have now replied with an evidence pack. I have written a rebuttal to this, how does it look? Thanks again to all who helped with my inital appeal

To whom it may concern,

As the keeper of the vehicle concerned, I write in response to the evidence pack that the Car Parking Partnership (hereafter CPP) has presented. I find that the points they raise to be invalid.

The main point that CPP raises is that of clear signage and that a contract was formed on entry of the parking area. This is not the case, as can be seen by the evidence that CPP itself provided. The signage is small, hard to read and unclear. The price for obstructing the terms and conditions is also unclear and not at all possible to read until one walks right up to the sign to read it. The driver was not able to read the terms and conditions due to this poor signage and could not possibly have agreed on a contract because of this.

In addition, the lines denoting the parking space in which the driver was parked were also unclear. The white lines clearly form a box denoting a valid parking space, however the yellow lines are more faint and suggest that they were painted previous to the white lines which appear more clear. It can be easy to see why the driver was confused as to whether or not this was a valid space to park in.

Another issue raised by CPP is that of the keeper being liable for the vehicle. According to the POFA 2012 Schedule 4 Paragragh 8(5), a notice to keeper must be provided to the keeper of the vehicle between 28 days to 56 days after the date of the incident. As of today, this notice to keeper has not been issued and the deadline of 56 days has now been reached (Wednesday 6th January 2016), because of this I cannot be liable to this charge.

As I have previously raised in my initial appeal document, no contract has been provided which shows that CPP have the authority to act on behalf of the landowner. In their rebuttal to my initial appeal, CPP still have not provided any proof other than their own word to prove this fact. Again, I must ask that due to CPP’s inability or reluctance to provide this simple item of proof, that CPP do not have authority to act on behalf of the landowner and that this charge does not apply.

Thank you.

For reference, the rebuttal that CPP provided included pictures of my vehicle as well as a picture of the sign. They also mentioned ParkingEye v Beavis a lot, stating that the conclusions drawn from that could be applied to my case. Is there anything I can say to counter this?

Thanks

hookguy

Anybody?

ManxRed

Beavis was concerned with the Parking Company's legal obligations towards the landowner to ensure a turnover of parking spaces and Beavis's 'crime' was overstaying. The Supreme Court sent a tweet following the judgement stating that the judgement applied only in respect of similar circumstances.

This case is in respect of parking outside of a marked bay and has nothing whatsoever to do with Beavis. You had a permit, this charge has supposedly arisen from parking obstructively, not overstaying/ prevention of space turnaround in the car park. There has been no loss whatsoever to the landowner.

Coupon-mad

The [STRIKE]price[/STRIKE] supposed 'charge' for obstructing the terms and conditions is also unclear and not at all possible to read until one walks right up to the sign to read it. This is completely contrary to the findings in the Beavis case where the fact that the signs were clear and (specifically) the amount of the charge was considered to be 'very prominently displayed' in 'large lettering' was significant in the decision.

The signs shown do not meet the BPA Code of Practice requirements but also, under Schedule 4 of the POFA, it is argued that the sign was not adequate notice for keeper liability to apply:

(2) The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).

(3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by—

(b) ...the display of one or more notices which—

(i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

Coupon-mad

By the way, without landowner authority in the evidence pack, you will win anyway! You could move that to your first point of rebuttal.

hookguy

I'd like to thank everyone on this thread for their help. I won my appeal based on insufficient proof of authority to operate in the area