First Parking LLP - Lancaster University - need help with POPLA

GrapeSoda

Hi,

I received a PCN of a total of £75 in the form of a windscreen ticket on 08/10/2015 for parking in an area which required either a staff parking permit or a valid pay and display ticket which I displayed neither of as my intention was only to park there in order to take out some books from the university library and did not want to pay the extortionate pay and display price required by my campus. I received a NTK on 10/11 which prompted me to appeal the PCN using the template letter found on the Parking Cowboys website: parkingcowboys co uk/appeal-letter
This was before I discovered this forum on which I learned the information regarding the grounds for appeal on this letter is quite out of date so is probably no longer valid.

Anyway I received my rejection letter on 16/12 which stated the following:

We acknowledge receipt of your appeal, regarding the above parking charge. Parking at this site is only for vehicles that are parked in accordance with the terms and conditions, as detailed on the signage on site. This signage is clear, in line with industry standards and clearly details any charges that may be imposed, should these terms and conditions be breached.
I have now had the opportunity to review this case and my findings are:

After reviewing the photographic evidence and also your appeal information; on this occasion I will be rejecting your appeal. It is the drivers responsibility to ensure they are displaying a valid permit. First Parking have also ensured that their Parking Charge amount is not punitive and set on the basis of a strong commercial justification for charges of this nature. The charge is based on a pre-estimate of loss, and has been calculated using our company records. The Parking Charge amounts are calculated in conjunction with the landholder, and have been approved and prescribed by the British Parking Association. First Parking does not believe that it would be proportionate to supply our calculations relating to Parking Charges at this time. It should be noted that it is commonly held that any pre-estimate of loss need only be rough and ready. The terms and conditions of parking are outlined within the signage as located on site. We are fully compliant with British Parking Association regulations on signage, and confirm that there is adequate signage at this site that is visible, appropriately located, clear and legible, so the Parking Charge is fully enforceable. All non-essential text is in a smaller font at the bottom of the sign, which can be read once the motorist has parked. Should a motorist not wish to be bound by these, they can then leave the site without incurring a Parking Charge.
I therefore uphold the operative's decision to issue this parking charge notice.

I have received my POPLA code and wish to take this further, however I am unsure of how to proceed, especially in terms of what grounds I can appeal to POPLA, since it is no longer possible to
argue that the charge is unfair or disproportionate as a result of the Beavis vs ParkingEye case. I am aware it's possible to argue along the grounds of unclear signage etc, except in this case there were signs up near where I parked and on the appeals page on the First Parking website they submitted this photo imgur com PBzpp5e along with photos of my car without a permit (although there is no evidence that any of these signs were in clear view of my car in relation to where I parked).

Does anyone have any advice on what I should include in my appeal to POPLA, as I am struggling to find any valid grounds for appeal? Do I even have any? Should I just pay the ticket?

Any help would be greatly appreciated.

Coupon-mad

Search the forum for F1rst (with a number 1 in the name) and you find these examples to crib from:

https://forums.moneysavingexpert.com/discussion/5361795

https://forums.moneysavingexpert.com/discussion/5357302

Should I just pay the ticket?

No, don't be daft, you are not going to be a victim of this scam, you are here and you will win. Show us what you cobble together based on your own searching the forum. That should have been the first thing to do, as well as reading the 'NEWBIES read this first' thread at the top which has more POPLA examples.

We'll help more when we see your draft. I do hope you haven't given away the driver in the first appeal (sadly, I guess you have because so many newbies do - it chucks an entire appeal point in the bin).

The_Deep

As Beavis does not apply to University car parks, a defence of "not a genuine pre-estimate of loss" will win this at PoPLA.


Once you have won the appeal, get the Students' Union to go into bat on your behalf with the administration to get this PPC sacked. They should not be contracting with these con artists


PPil

GrapeSoda

Thanks guys, I have put together an appeals draft using information from the the two threads linked here regarding First Parking and Lancaster University. My case differs from the other two as I was supplied a notice to keeper so I have chosen to omit the keeper liability appeal point. Also do you think it's still worth arguing unclear signage even though I was supplied with this photograph?

imgur com PBzpp5e jpg

Anyway here is my draft, please let me know what you think.

"I write to you today as the registered keeper of the vehicle XXXXX, I wish to appeal the £75 Parking charge notice (PCN) issued by F1rst Parking.


I submit the reasons below to show that I am not liable for the parking charge:


1. No standing or authority to pursue charges nor form contracts with drivers.
2. Unclear and non-compliant signage, forming no contract with drivers.
3. Unreasonable and unfair terms – no contract agreed to pay £75. Fails the ‘Aziz test’.
4. No genuine pre-estimate of loss.


1. No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, F1rst Parking must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put F1rst Parking to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between F1rst Parking 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 F1rst Parking

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.



2. Unclear and non-compliant signage, forming no contract with drivers.

The signs do not meet the minimum requirements in part 18 of the BPA code of practice. 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.

When with reference to the BCP Code of Practice, it actually states:

"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". After inspecting the signs after the driver received the charge, I noted that the signs are grey and small text that is difficult to read. The signs were also unlit which makes them very difficult to read in the hours which the car park is free to park (6pm-8am), especially during winter. These were easily missed as they are on one end of the car park only, with low height which could easily be concealed by cars, and not by any lighting.

There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road.



3. Unreasonable and unfair terms – no contract agreed to pay £75. Fails the ‘Aziz test’.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £75 had there been negotiations in advance, the answer here is obviously no. One could have parked free on road at this time of night (from 6pm-8am). There would have been no justification or negotiation that could have possibly have persuaded an average consumer to pay £75 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

4. No genuine pre-estimate of loss.

This case is an unfair penalty and differs from the 'Beavis v ParkingEye' judgment.

The charge is for an alleged (but denied) breach of contract and therefore it must either be based upon a genuine pre-estimate of loss or otherwise shown to be socially or commercially justified, that this non-landowning third party can claim a sum in excess of any damages. However, no such GPEOL or justification can apply here.

Unlike in Beavis, it is confidently argued that this charge has been artificially inflated and First Parking LLP have failed to disengage the 'penalty rule' by virtue of a want of good faith and a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry Code of Practice. £75 is hugely disproportionate to any alleged unpaid tariff and there was no unpaid parking time in any case.

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

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."

We'll help more when we see your draft. I do hope you haven't given away the driver in the first appeal (sadly, I guess you have because so many newbies do - it chucks an entire appeal point in the bin).

Fortunately as I used the template letter from Parking Cowboys which has no mention of any driver, this is not the case. What appeal point are you referring to?

The_Deep

You state there is no loss of revenue, but you say you did not P&D, how so?r


Emphasize the difference from Beavis, not a commercial car park, PPC are not paid a large sum of money to farm the car park, you were there a few minutes, Beavis nearly three hours, Beavis ignored PE, you appealed. Beavis car park was free, If you pay, you can stay as long as you like.

Coupon-mad

as I was supplied a notice to keeper so I have chosen to omit the keeper liability appeal point.

Nonono. The NTK won't be compliant so of course as keeper you must point out why you cannot be held liable, do NOT miss that out!

Compare the NTK to paragraph 8 of Schedule 4 of the POFA like other posters have done over the years - not difficult - paragraph 8 is a few numbered bullet points.

GrapeSoda

You state there is no loss of revenue, but you say you did not P&D, how so?r

Where in my appeal am I specifically saying no loss of revenue? I am arguing that the charge is not a genuine pre-estimate of loss and that the charge is unfair, but not specifically stating loss of revenue, unless thats what GPEOL means. If so doesn't that mean I've lost that entire appeal point as I did not p&d?

Compare the NTK to paragraph 8 of Schedule 4 of the POFA like other posters have done over the years - not difficult - paragraph 8 is a few numbered bullet points.

I have examined the notice to keeper and to me it seems compliant to paragraph 8. I don't know, maybe Im missing something? Here's the NTK I received:

imgur com c6b6evi jpg

Coupon-mad

You are missing something. There are no compliant NTKs! Look again, be more pedantic.

GrapeSoda

Ok so on closer inspection and investigation, this is what I have managed to put together:

No Keeper Liability
F1rst has failed to comply with POFA. Schedule 4 paragraph 8 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 five counts:
• 8(2)(a) – there is no mention of the period of parking to which the notice relates (it does mention the date and time of the event, but I presume this doesn't strictly count as the period of parking)
• 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 not state that a notice to driver relating to the specified period of parking has been given
• 8(2)(g) - the notice does not inform the keeper of any discount offered for prompt payments
• 8(2)(i) – the notice does not specify the date of on which the notice was sent. (It does have date of issue however, but is this different to the date the notice was sent?)


As the Notice to Keeper fails to meet these requirements, the keeper cannot be held liable.

Does this seem OK?

salmosalaris

Looks good but spell out what you've written in red to the assessor if you weren't going to

salmosalaris

Add this

The charge is not a genuine pre estimate of loss but an unenforceable penalty as Parking Eye v Beavis can easily be distinguished from this case.
If a contract was formed between the driver and Operator it would be a simple financial consumer contract. An offer of parking for a set sum was made in return for a small payment . This makes plain that the sum being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment , and is consequently unenforceable. As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If The Operator believes that inadequate payment was made (which their PCN fails to make clear ) their demand should be for any unpaid tariff as that would be their only loss. The charge is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If The Operator believes their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this has been calculated.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist. This was not changed by the later judgment in the Supreme Court .

This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff was made.

This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.

A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.

Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income . As previously mentioned in this situation there is no such justification as the car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site .