First Parking LLP - Lancaster University - need help with POPLA

GrapeSoda

Ok thanks, will do. As my draft already has a section on no GPEOL, should I replace it with the section you just posted?

GrapeSoda

This what I've got so far, 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. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2. No standing or authority to pursue charges nor form contracts with drivers.
3. Unclear and non-compliant signage, forming no contract with drivers.
4. Unreasonable and unfair terms – no contract agreed to pay £75. Fails the ‘Aziz test’.
5. No genuine pre-estimate of loss.


1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.

First 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 First fails on five counts:
• 8(2)(a) – there is no mention of the period of parking to which the notice relates. It mentions the date and time of the event but gives no indication of how long the car was parked there, thus 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. While it does have a date of issue, this give no indication as to when the notice was sent.

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


2. 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.


3. 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.


4. 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.


5. No genuine pre-estimate of loss.

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.

Therefore, it is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours faithfully

salmosalaris

Have you got a photo of the sign ?
Also add to your last paragraph
If the POPLA adjudicator still feels that the judgment from the Supreme Court in Parking Eye v Beavis is possibly relevant in this case I would make the following further points to distinguish it .
The Supreme Court indicated that such a charge would only be enforceable and avoid being a penalty if there wax a legitimate interest in enforcing the charge and if that charge was proportionate to the interest .
It is impossible to argue that this charge is proportionate to the small unpaid tariff which is the only interest because if this payment had been made the vehicle would have been fully entitled to park as it did . As the Registered Keeper I have never been asked for this inadvertantly unpaid tariff and if I had I would have paid it and still will pay it . It s therefore ridiculous to argue that the charge is proportionate to the interest simply because it is not worth pursuing the unpaid amount by litigation when there is no need to do so.
The requirement to enforce a charge that simply punishes inadvertant underpayment of a much smaller charge with a far larger one is neither a legitimate interest or proportionate to that interest. It cannot escape being a penalty .

GrapeSoda

Cant post pictures as it says I'm a new user

imgur com PBzpp5e jpg

I think the signage argument seems a little weak but other threads about First parking in Lancaster on this site have used it.

GrapeSoda

That's the picture they provided on the First Parking site where it gives you the option to pay, along with pictures of my car parked without a permit or p&d, but theres no pictures of any signs actually in view of my car

Coupon-mad

I can't see the picture, can't get the link to work even when adding back the 'dots'. I like the way you found the errors with the NTK though, you did a good job when you went into pedantic mode. I agree with your points in red - and with everything suggested by salmosalaris, of course.

Is the sum of the 'charge' very prominent on the sign (like was said in PE v Beavis)? Or hidden in small print or placed too high to read?

GrapeSoda

The link is working for me, try imgur(.)com(/)PBzpp5e(.)jpg and removing the brackets

The sum is readable but I wouldn't call it prominent.

Coupon-mad

http://i.imgur.com/PBzpp5e.jpg

Yep that works. I would add to your signage argument that the sign looks to be positioned unusually low, such that it would be completely obscured by a parked van or people carrier. If they have not sent a picture of the car near that sign, point out there is no evidence shown as to whether a sign showing the terms and the charge was legible from the location where the car was.*


* only add that bit above, if there is no such photo evidence from them so far!

salmosalaris

I would also add that
The signage indicates that the operator operates the car park on behalf of the owners . This not only discloses that the operator is acting as agent of the Principal to the contract but the fact that the Principal is disclosed prevents the operator,as agent, enforcing the contract in their own name . Any claim ahould be in the name of the landowner , the contracting party .
This is in stark contrast to tbe situation in Parking Eye v Beavis where Parking Eye were deemed Principal because the signage did not disclose the existence of a Principal , and only for that reason could Parking Eye bring a claim in their own name .

salmosalaris

The signage states a PCN "may" be issued , that is not a clear unambiguous warning
The way it reads you would have to both fail to display a ticket AND not be wholly parked within a bay to br issued with a PCN .
Any ambiguity in a contractual term must be read in such a way that is favourable to you , the principle of contra proferentem
The requirement to pay £75 is not clear and prominent as the SC commentrd on in Beavis . Such an onerous obligation should be the most prominent part of the sign , Lord Denning's red hand rule

I think you've enough to be going on with now and this appeal will disappear into new POPLA's assessment pending Bermuda Triangle !