First Parking LLP - Lancaster University - need help with POPLA

GrapeSoda

ManxRed wrote: »

Is that all of the contract they have supplied? That isn't the full contract, it's just pages 1 and 2 and the last page. They've missed out all the terms and conditions.

Yes that is all of the contract that they supplied.

salmosalaris wrote: »

Let's see the appeal you submitted

Sure, this is the full version of the appeal I submitted:


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


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 neither 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.

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 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 neither 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.
Furthermore, 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 be issued with a PCN .
Any ambiguity in a contractual term must be read in such a way that is favourable to the driver, the principle of contra proferentem.


The requirement to pay £75 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.




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

Coupon-mad

First impressions:

- use ManxRed's point that they have failed to supply the full contract, it's just pages 1 and 2 and the last page. They've missed out all the terms and conditions which could easily state that people with a Zone C permit can park in that section, or it could indeed provide for another exemption or a requirement for a 10 minute observation period. A grace period is mentioned in the evidence but not quantified in the redacted sections of the contract shown. Also, the definition of 'parking offence' says 'those parking offences for which PCNs may be issued as described at paragraph 2'. But they've not included paragraph 2 so it is anyone's guess what PCNs are authorised to be issued for - could be only parking in a disabled bay, could be only parking outside of a bay. Could be anything. So this is not evidence of authority from the landowner for this alleged contravention in this car park at this time with that type of permit.

- nothing in the photos shows that the 'visitors' & staff car share permit holders' is not in fact within this unidentifed 'Zone C'. There is no aerial photo or evidence to show that Zone C is elsewhere.

- you can say, when the Zone C permit was issued there was no accompanying information about any £75 charge specifically, so there was an absence of the 'adequate notice' of the charge as required under Schedule 4 of the POFA. And in hours of darkness, an unlit black sign is completely invisible and even if it was seen, the words even though they are white, are unreadable (the only reason the words can be read in the evidence pack is because the operator's employee has shone a torch right at it!). A light needs to be above such signs if the restrictions and charges are intended to be applied and contracts formed in the hours of darkness. It is a fact that neither the driver nor the person who was first issued with the permit ever agreed to pay £75 so there is a complete absence of a contract, unlike in the Beavis case.

- F1rst have failed to rebut the SPECIFIC flaws identified in the NTK. The statutory wording is as presribed and is mandatory. It is not enough for an operator to just say 'our NTK does comply with the POFA'. It doesn't, not exactly, so there can be no keeper liability.

- F1rst have argued their charge - completely unlike the ParkingEye v Beavis case - is based upon a GPEOL (i.e. damages for breach) and yet they are not the landowners and have provided no calculations to support their argument. In Beavis it was found that ParkingEye had not held that their charge was based upon a GPEOL at all and indeed ParkingEye had suffered no loss and even if they had, it was held:

97. ''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass. This is because it lost nothing by the unauthorised use resulting from Mr Beavis overstaying.''

Edna_Basher

From the small bit of the contract they have provided, I can see one or two juicy mistakes.

For example, the definition of "Parking Charge Notice" as meaning "the document issued by First Parking or the client to a person who has committed a Parking Offence at the Enforcement Site for which a Parking Charge applies".

Parking Offence? Really?

salmosalaris

With reference to the little white bit at the base of the the sign that they seem to have omitted from the blow up.
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 there was no fuduciary duty to the lanfowner , and only for these reasons could Parking Eye bring a claim in their own name .
In this case a Principal is clearly disclosed and it is believed that the operator has a clear duty to the landowner to collect parking tariffs on behalf of the landowner .

salmosalaris

Chuck in the points in my post 21
Looks like the car's in a bay to me :-)

salmosalaris

To park in zone C it appears the vehicle only needed to buy a visitor ticket , the loss is therefore only that tariff. Just because a permit for another area is displayed does not preclude the car being used by a visitor .


In paid parking situations I'm using the below as an alternative to the old gpeol argument
POPLA have adjourned appeals to consider the SC judgment in Beavis , I wonder why ?? !!
Let them pick throgh this

---

The vehicle parked in an area where visitors are entitled to park in return for purchasing a P&D ticket , the fact that this vehivle may have displayed a permit for another zone does not preclude it from making such a "visitor" visit.

The Operator has no legitimate interest in enforcing their charge , the charge is disproportionate , a penalty and an unenforceable Unfair contract term and this case can easily be distinguished from Parking Eye v Beavis

The purported contract entered into by the motorist is a simple consumer financial contract. An offer of parking is made in return for payment of a small tariff. The Operator is seeking to impose a charge for breach of contract. The loss for failure to make this payment is easily calculable as that unpaid tariff. Anything in excess is clearly a penalty and Unfair contract term .

a. The Operator may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty , despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;- i

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers; - i

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
I
e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-

In this case the vehicle would have been fully entitled to park as it did had payment been made ( provided the requirement to do so had been clearly brought to the motorist's attention )The above justifications are irrelevant and conspicuously absent. The only interest the Operator has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Operator cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pounds. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
44. All the previous cases shown to us have concerned contracts of a financial or at least
an economic nature, where the transaction between the contracting parties can be
assessed in monetary terms, as can the effects of a breach of the contract by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
45. The contract in the present case is entirely different. There is no economic transaction
between the car park operator and the driver who uses the car park, if he or she stays
no longer than two hours; there is no more than (for that time) a gratuitous licence to
use the land. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment Approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me that the principles underlying the doctrine of penalty ought not to
strike down a provision of this kind, in relation to a contract such as we are concerned
with, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. When the court is considering an ordinary financial or
commercial contract, then it is understandable that the law, which lays down its own
rules as to the compensation due from a contract breaker to the innocent party, should
prohibit terms which require the payment of compensation going far beyond that
which the law allows in the absence of any contract provision governing this outcome.
The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)
6 Bing. 141 at 148:
“But that a very large sum should become immediately payable, in consequence
of the non-payment of a very small sum, and that the former should not be
considered a penalty, appears to be a contradiction in terms, the case being
precisely that in which courts of equity have always relieved, and against which
courts of law have, in modern times, endeavoured to relieve, by directing juries to
assess the real damages sustained by the breach of the agreement.”



This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the operator and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff ( had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Operator , may be entitled. The demanded charge is , without intellectual dishonesty, a clearly unenforceable penalty .

b. With reference to The Consumer Rights Act 2015 Schedule 2 part 1 para 6 ( or UTCCR 1999 SCHEDULE 2 REGULATION5(5) 1 (e) the charge is clearly an unenforceable contract term as the Operator is seeking to impose a charge in compensation that is vastly disproportionate to the parking tariff of only a few pounds that the Operator believes should have been paid.

Coupon-mad

I really like that, salmosalaris, basing it upon the useful wording from the CoA stage in Beavis is very persuasive. You are right:

''The only interest the Operator has in enforcing the charge is ensuring payment is made. That is not a legitimate interest.''

Kemble v Farren (1829) and also A Retailer v Mrs B still seem relevant. They apply as valid case law when it's a P&D car park because that constitutes 'an ordinary financial or commercial contract' as was discussed at the CoA. And at the SC too, where they were happy that Lord Dunedin's 'tests' still applied to simple contracts. It was just that they separated the Beavis situation from the penalty rule because there was a licence to park free and extraordinary circumstances of an inherent 'commercial justification' which caused them to distance that case from a simple/ordinary financial contract.

I will link this to the NEWBIES thread for paid POPLA appeals. Also works for defences when it's a P&D car park.

GrapeSoda

Thanks everyone, some really useful information here. Just to clarify, the permit for "Zone C" is actually resident's parking permit for Zone C in Lancaster issued by Lancaster City Council and has nothing to do with the University's car park where the PCN was issued.

Coupon-mad

But they haven't said that. So you can say as I mentioned, there is nothing in the evidence to say that this car park isn't within the range of this 'Zone C'.

Jadecass10

Where can i find this 'newbies' template?