out of time?

specialbru

Is it that bad ?

Coupon-mad

No idea, had no time to look last night and about to eat now! You will get help.

Coupon-mad

specialbru wrote: »

can anyone give me their views on this draft for a popla appeal?

1/
The driver on being informed that they were parked in a pay and display car park offered to purchase a ticket covering the full amount owed and was told “no it’s too late”

2/
The notice to keeper was received on 29/12/15 which is outside permitted time frame as no ticket was put on vehicle at the time of alleged offence.The registered keeper is submitting this appeal and LDK do not have the identity of the driver, who is not the registered keeper.
As LDK has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

3/
i appealed this charge as keeper on 07/01/16 and apparently they did not receive it although it was to the same email address used in later correspondence which was acknowledged by them.

4/
Photographic evidence that is being used does not show the period that the vehicle was allegedly parked and was taken on a mobile phone which can not be calibrated or checked.


5/ Signage
The alleged breach took place in low light and any signs were not adequately lighted to be seen clearly while driving (and indeed were not seen by the driver).
The BPA Code of Practice states: 18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. (Please note that due to LDK’s positioning of the signage they were hard to see in low light and because the driver reversed into the parking space did not pass any signage.) 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.” There was no contract between the driver and LDK as they did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

6/ No contract with the Landowner
LDK does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
LDK has also not provided any evidence which i specifically asked for that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
LDK must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant LDK the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between LDK and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

You can add to this first point:

1/
The driver on being informed that they were parked in a pay and display car park offered to purchase a ticket covering the full amount owed and was told “no it’s too late”. In fact there is a common law duty to mitigate loss, as was stated by DJ McIlwaine in VCS v Ibbotson:

http://nebula.wsimg.com/e3da92cb966c72de63ec1f98605c2954?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

The employee (who issued no PCN at all) had no reasonable excuse to suggest that it was 'too late' to purchase a P&D ticket and had a duty to mitigate any loss by telling the driver to pay at the machine. There is no time limit on the signage - so there was no breach when this conversation took place - and the car was in the car park, had not left, so it was not 'too late' to pay and display.




And you need to show POPLA this rubbish from LDK, why not add some more to your point #3 and point out:

LDK are unlawfully demanding £160 (well above the BPA CoP ceiling of £100) and threatening debt collection after just 14 days, despite the fact the POPLA appeal window is open. This is a clear breach of the BPA CoP as an operator is not allowed to increase the charge nor pursue with debt collectors whilst a case is at POPLA stage. LDK have emailed this threat of debt collection and court without further warning, whilst on the other hand offering a POPLA code yet not explaining what the code was/the fact that I have a right to a full 28 days unfettered appeal window to submit this to POPLA. This isn't a fair or compliant rejection letter for a BPA AOS member, it is misleading harassment and I have complained again to the BPA about this emailed 'rejection' from LDK:


''Please note that that a Notice To Owner was sent out on 23 December 2015 and we did not receive any communication from you. We therefore had the right to pass the file over for Debt Recovery.

However as a gesture of goodwill, i have asked DRPL to put this file on hold for 14 days. This should provide enough time to settle the above. I must stress that shall the above remain outstanding , charges will increase.

A payment of £90.00 is to be received within 14 days after which charges will increase to £160.00.
Failure to comply will result in your details being passed on to Debt Collection Agents. We may also start court proceedings without further warning and extra cost will be incurred. ''



Also you need an appeal point stating that the charge is not based upon a genuine pre-estimate of loss and nor will LDK be able to draw any meaningful comarison with the ParkingEye v Beavis decision. Like this:


Not a genuine pre estimate of loss - this £90 (or is it £160) is a penalty which can be distinguished from ParkingEye v Beavis

This charge is not based upon any loss nor GPEOL and nor has LDK shown any legitimate commercial justification for charging £90. The fact that the employee could/should have accepted and allowed the tariff being put into the machine by the driver on site at the time, makes it plain that the sum now being demanded - escalated to an unconscionable and extortionate £160 by the time POPLA receive this appeal - is nothing other than a penalty clause and is consequently unenforceable.

As this is a simple contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.

LDK should have accepted the tariff at the time as this would have been in accordance with the signage terms, which do not state how soon a driver must pay and display after parking. Any charge due can only be the alleged unpaid tariff as that would be their only loss. £90 is quite clearly not a genuine pre-estimate of their loss and is extravagant and unconscionable. If LDK believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down at the Court of Appeal stage, during the progression of the case of ParkingEye v Barry Beavis which was ultimately decided in the Supreme court. In that situation the penalty charge was only justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. The £85 was considered not unconscionable in a case where a licence to park for free was granted at first, taking into account all the facts of that unusual case and in view of the contract created by those prominent and clear signs at that specific car park.

This is not the case here, where the penalty rule remains very obviously engaged.

A term which imposes a requirement to pay a disproportionately large sum for failing to pay a far smaller fee (after being wrongly and unfairly instructed that it was 'too late' by the LDK employee) 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 material case brought by LDK is regarding a far more simple financial contract where the alleged loss is negligible and can be quantified. That small sum cannot then be inflated to £90 without intellectual dishonesty, unless the operator is able to otherwise justify it, and they will be unable to justify the increase to £160 under any circumstances. A P&D car park can be clearly distinguished from that in ParkingEye v Beavis, the judgment in which is irrelevant in this situation.

specialbru

thank you ill put that all together

specialbru

can anyone give me their views on this revised popla apeal?
1/
The driver on being informed that they were parked in a pay and display car park offered to purchase a ticket covering the full amount owed and was told “no it’s too late”

The employee (who issued no PCN at all) had no reasonable excuse to suggest that it was 'too late' to purchase a P&D ticket and had a duty to mitigate any loss by telling the driver to pay at the machine. There is no time limit on the signage - so there was no breach when this conversation took place - and the car was in the car park, had not left, so it was not 'too late' to pay and display.

2/
The notice to keeper was received on 29/12/15 which is outside permitted time frame as no ticket was put on vehicle at the time of alleged offence.The registered keeper is submitting this appeal and LDK do not have the identity of the driver, who is not the registered keeper.
As LDK has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

3/
i appealed this charge as keeper on 07/01/16 and apparently they did not receive it although it was to the same email address used in later correspondence which was acknowledged by them.
LDK are unlawfully demanding £160 (well above the BPA CoP ceiling of £100) and threatening debt collection after just 14 days, despite the fact the POPLA appeal window is open. This is a clear breach of the BPA CoP as an operator is not allowed to increase the charge nor pursue with debt collectors whilst a case is at POPLA stage. LDK have emailed this threat of debt collection and court without further warning, whilst on the other hand offering a POPLA code yet not explaining what the code was/the fact that I have a right to a full 28 days unfettered appeal window to submit this to POPLA. This isn't a fair or compliant rejection letter for a BPA AOS member, it is misleading harassment and I have complained again to the BPA about this emailed 'rejection' from LDK:


''Please note that that a Notice To Owner was sent out on 23 December 2015 and we did not receive any communication from you. We therefore had the right to pass the file over for Debt Recovery.

However as a gesture of goodwill, i have asked DRPL to put this file on hold for 14 days. This should provide enough time to settle the above. I must stress that shall the above remain outstanding , charges will increase.

A payment of £90.00 is to be received within 14 days after which charges will increase to £160.00.
Failure to comply will result in your details being passed on to Debt Collection Agents. We may also start court proceedings without further warning and extra cost will be incurred. ''

4/
Photographic evidence that is being used does not show the period that the vehicle was allegedly parked and was taken on a mobile phone which can not be calibrated or checked.


5/
Signage
The alleged breach took place in low light and any signs were not adequately lighted to be seen clearly while driving (and indeed were not seen by the driver).
The BPA Code of Practice states: 18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. (Please note that due to LDK’s positioning of the signage they were hard to see in low light and because the driver reversed into the parking space did not pass any signage.) 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.” There was no contract between the driver and LDK as they did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

6/
No contract with the Landowner
LDK does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
LDK has also not provided any evidence which i specifically asked for that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
LDK must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant LDK the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between LDK and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

7/
Not a genuine pre estimate of loss - this £90 (or is it £160) is a penalty which can be distinguished from ParkingEye v Beavis

This charge is not based upon any loss nor GPEOL and nor has LDK shown any legitimate commercial justification for charging £90. The fact that the employee could/should have accepted and allowed the tariff being put into the machine by the driver on site at the time, makes it plain that the sum now being demanded - escalated to an unconscionable and extortionate £160 by the time POPLA receive this appeal - is nothing other than a penalty clause and is consequently unenforceable.

As this is a simple contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.

LDK should have accepted the tariff at the time as this would have been in accordance with the signage terms, which do not state how soon a driver must pay and display after parking. Any charge due can only be the alleged unpaid tariff as that would be their only loss. £90 is quite clearly not a genuine pre-estimate of their loss and is extravagant and unconscionable. If LDK believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this.

I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down at the Court of Appeal stage, during the progression of the case of ParkingEye v Barry Beavis which was ultimately decided in the Supreme court. In that situation the penalty charge was only justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. The £85 was considered not unconscionable in a case where a licence to park for free was granted at first, taking into account all the facts of that unusual case and in view of the contract created by those prominent and clear signs at that specific car park.

This is not the case here, where the penalty rule remains very obviously engaged.

A term which imposes a requirement to pay a disproportionately large sum for failing to pay a far smaller fee (after being wrongly and unfairly instructed that it was 'too late' by the LDK employee) 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 material case brought by LDK is regarding a far more simple financial contract where the alleged loss is negligible and can be quantified. That small sum cannot then be inflated to £90 without intellectual dishonesty, unless the operator is able to otherwise justify it, and they will be unable to justify the increase to £160 under any circumstances. A P&D car park can be clearly distinguished from that in ParkingEye v Beavis, the judgment in which is irrelevant in this situation.

Coupon-mad

can anyone give me their views on this revised popla appeal?

Only to say you need an introduction like the one discussed & linked here (only a couple of lines, written to suit your case):

https://forums.moneysavingexpert.com/discussion/comment/70119911#Comment_70119911

Because it is odd to leap straight in with point #1 without saying at least: 'Dear POPLA I am the registered keeper and I am not liable for this charge...blah blah...'

I think I would add to point #1 now I'm reading it afresh, I would make this longer and more geared towards unfairness under the CRA. The parts in blue are just so you can see what I have added including the very first line in point #1, not meant to be shown by you in a different colour to POPLA of course:


1/ This charge is inherently unfair under the Consumer Rights Act 2015, given the unique facts of the case where the parking operator failed to act with 'good faith' or transparency and their deliberately misleading actions caused a significant imbalance, to the detriment of the consumer. The driver on being informed that they were parked in a pay and display car park offered to purchase a ticket covering the full amount owed and was told “no it’s too late”

The employee (who issued no PCN at all) had no reasonable excuse to suggest that it was 'too late' to purchase a P&D ticket and had a duty to mitigate any loss by telling the driver to pay at the machine. There is no time limit on the signage - so there was no breach when this conversation took place - and the car was in the car park, had not left, so it was not 'too late' to pay and display.

The Beavis case is binding case law which assists appellants because it states that the 'penalty rule' is certainly engaged in private parking charge cases and was only 'disengaged' in that case alone, due to the unusual circumstances at a time when the shops were open. A need for a turnover of spaces in trading hours was held to be commercial justification for a higher sum to be charged after an initial licence of free parking expired.

No such commercial justification exists in this case and the penalty rule remains firmly engaged. The only transparent thing about this 'charge' is that it is punitive and unfair, so it is unenforceable, as confirmed by the Consumer Rights Act 2015:


SCHEDULE 2

Consumer contract terms which may be regarded as unfair

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

PART 1 - List of terms

6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.

10) A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.

12) A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.

14) A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.

18) A term which has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations.


62 - Requirement for contract terms and notices to be fair

(1) An unfair term of a consumer contract is not binding on the consumer.

(2) An unfair consumer notice is not binding on the consumer.

(4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

(6) A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.


68 - Requirement for transparency

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

69 - Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

(2) A consumer notice is transparent...if it is expressed in plain and intelligible language and it is legible.

specialbru

Can anyone read this and give opinion/ views ?
PCN Reference: 0000

Vehicle registration number:

POPLA appeal code

I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by LDK Security Group as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at Former Worswick Street Bus Station on 09/12/2015. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below the principal reasons why I am not liable for this parking charge”.
1/ This charge is inherently unfair under the Consumer Rights Act 2015, given the unique facts of the case where the parking operator failed to act with 'good faith' or transparency and their deliberately misleading actions caused a significant imbalance, to the detriment of the consumer. The driver on being informed that they were parked in a pay and display car park offered to purchase a ticket covering the full amount owed and was told “no it’s too late”

The employee (who issued no PCN at all) had no reasonable excuse to suggest that it was 'too late' to purchase a P&D ticket and had a duty to mitigate any loss by telling the driver to pay at the machine. There is no time limit on the signage - so there was no breach when this conversation took place - and the car was in the car park, had not left, so it was not 'too late' to pay and display.

The Beavis case is binding case law which assists appellants because it states that the 'penalty rule' is certainly engaged in private parking charge cases and was only 'disengaged' in that case alone, due to the unusual circumstances at a time when the shops were open. A need for a turnover of spaces in trading hours was held to be commercial justification for a higher sum to be charged after an initial licence of free parking expired.

No such commercial justification exists in this case and the penalty rule remains firmly engaged. The only transparent thing about this 'charge' is that it is punitive and unfair, so it is unenforceable, as confirmed by the Consumer Rights Act 2015


2/
The notice to keeper was received on 29/12/15 which is outside permitted time frame as no ticket was put on vehicle at the time of alleged offence. The registered keeper is submitting this appeal and LDK do not have the identity of the driver, who is not the registered keeper.
As LDK has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

3/
i appealed this charge as keeper on 07/01/16 and apparently they did not receive it although it was to the same email address used in later correspondence which was acknowledged by them. LDK are unlawfully demanding £160 (well above the BPA CoP ceiling of £100) and threatening debt collection after just 14 days, despite the fact the POPLA appeal window is open. This is a clear breach of the BPA CoP as an operator is not allowed to increase the charge nor pursue with debt collectors whilst a case is at POPLA stage. LDK have emailed this threat of debt collection and court without further warning, whilst on the other hand offering a POPLA code yet not explaining what the code was/the fact that I have a right to a full 28 days unfettered appeal window to submit this to POPLA. This isn't a fair or compliant rejection letter for a BPA AOS member, it is misleading harassment and I have complained again to the BPA about this emailed 'rejection' from LDK: (Below)


''Please note that that a Notice To Owner was sent out on 23 December 2015 and we did not receive any communication from you. We therefore had the right to pass the file over for Debt Recovery.

However as a gesture of goodwill, i have asked DRPL to put this file on hold for 14 days. This should provide enough time to settle the above. I must stress that shall the above remain outstanding , charges will increase.

A payment of £90.00 is to be received within 14 days after which charges will increase to £160.00.
Failure to comply will result in your details being passed on to Debt Collection Agents. We may also start court proceedings without further warning and extra cost will be incurred.

4/
Photographic evidence that is being used does not show the period that the vehicle was allegedly parked and was taken on a mobile phone which cannot be calibrated or checked.


5/ Signage
The alleged breach took place in low light and any signs were not adequately lighted to be seen clearly while driving (and indeed were not seen by the driver). I have attached photos that were taken by the driver at the time of alleged offence clearly showing there were no signs clearly visible to the driver on parking and leaving.

The BPA Code of Practice states: 18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. (Please note that due to LDK’s positioning of the signage they were hard to see in low light and because the driver reversed into the parking space did not pass any signage.) 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.” There was no contract between the driver and LDK as they did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.

6/ No contract with the Landowner
LDK does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
LDK has also not provided any evidence which i specifically asked for that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
LDK must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant LDK the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between LDK and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.

I have attached photos that were taken by the driver at the time of alleged offence clearly showing there were no signs clearly visible to the driver on parking and leaving.

catfunt

Edited now that my warning has been heeded....

Coupon-mad

I would add a bit to your signage point, to make it clear it was incapable of creating any contract or offer:


5/ Signage
The alleged breach took place in low light and any signs were not adequately lighted to be seen clearly while driving (and indeed were not seen by the driver). I have attached photos that were taken by the driver at the time of alleged offence clearly showing there were no signs clearly visible to the driver on parking and leaving.

Unlike in the Beavis case, there was no contract agreed by prominent signage. It was incapable of being read so could not constitute any offer or consideration and in any case, the operative denied the driver the right to read and take up the offer to pay and display. There was no consideration flowing between the parties so the elements of a contract were absent.

The driver had no fair opportunity of becoming acquainted with the terms by which they would later be bound and there was a significant imbalance in the consumer's rights and obligations, directly caused by the parking firm employee's lie about it being 'too late' to pay, which was contrary to the CRA doctrine of good faith and fair dealing by traders. POPLA can see the sign does not state that a tariff payment can be 'too late' if made on that day whilst parked.

Also regarding the signs, there is nothing to tell drivers that their vehicle may be photographed (whether by ANPR or other cameras) nor how that data will be used. This is a breach of ICO rules for data processors and also a breach of the BPA CoP, which left the driver unaware that the parking attendant would use and store a mobile phone photograph with no times shown on it, for the purpose of applying for keeper data and to pursue a disproportionately higher charge than the driver could have paid as a tariff at the time.

The BPA Code of Practice states:

18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. (Please note that due to LDK’s positioning of the signage they were hard to see in low light and because the driver reversed into the parking space did not pass any signage.) 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”

There was no contract between the driver and LDK as they did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.



I would also suggest quoting Schedule 2 of the CRA as I showed above:

SCHEDULE 2

Consumer contract terms which may be regarded as unfair

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

PART 1 - List of terms

6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.

10) A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.

12) A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.

14) A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.

18) A term which has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations.


62 - Requirement for contract terms and notices to be fair

(1) An unfair term of a consumer contract is not binding on the consumer.

(2) An unfair consumer notice is not binding on the consumer.

(4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

(6) A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.


68 - Requirement for transparency

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

69 - Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

(2) A consumer notice is transparent...if it is expressed in plain and intelligible language and it is legible.

specialbru

I would like to thank you for helping me with this.




I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by LDK Security Group as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at Former Worswick Street Bus Station on 09/12/2015. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below the principal reasons why I am not liable for this parking charge”.


1/ This charge is inherently unfair under the Consumer Rights Act 2015, given the unique facts of the case where the parking operator failed to act with 'good faith' or transparency and their deliberately misleading actions caused a significant imbalance, to the detriment of the consumer. The driver on being informed that they were parked in a pay and display car park offered to purchase a ticket covering the full amount owed and was told “no it’s too late”

The employee (who issued no PCN at all) had no reasonable excuse to suggest that it was 'too late' to purchase a P&D ticket and had a duty to mitigate any loss by telling the driver to pay at the machine. There is no time limit on the signage - so there was no breach when this conversation took place - and the car was in the car park, had not left, so it was not 'too late' to pay and display.

The Beavis case is binding case law which assists appellants because it states that the 'penalty rule' is certainly engaged in private parking charge cases and was only 'disengaged' in that case alone, due to the unusual circumstances at a time when the shops were open. A need for a turnover of spaces in trading hours was held to be commercial justification for a higher sum to be charged after an initial licence of free parking expired.

No such commercial justification exists in this case and the penalty rule remains firmly engaged. The only transparent thing about this 'charge' is that it is punitive and unfair, so it is unenforceable, as confirmed by the Consumer Rights Act 2015


SCHEDULE 2

Consumer contract terms which may be regarded as unfair

http://www.legislation.gov.uk/ukpga/2015/15/schedule/2/enacted

PART 1 - List of terms

6) A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.

10) A term which has the object or effect of irrevocably binding the consumer to terms with which the consumer has had no real opportunity of becoming acquainted before the conclusion of the contract.

12) A term which has the object or effect of permitting the trader to determine the characteristics of the subject matter of the contract after the consumer has become bound by it.

14) A term which has the object or effect of giving the trader the discretion to decide the price payable under the contract after the consumer has become bound by it, where no price or method of determining the price is agreed when the consumer becomes bound.

18) A term which has the object or effect of obliging the consumer to fulfil all of the consumer’s obligations where the trader does not perform the trader’s obligations.


62 - Requirement for contract terms and notices to be fair

(1) An unfair term of a consumer contract is not binding on the consumer.

(2) An unfair consumer notice is not binding on the consumer.

(4) A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.

(6) A notice is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations to the detriment of the consumer.


68 - Requirement for transparency

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

69 - Contract terms that may have different meanings

(1) If a term in a consumer contract, or a consumer notice, could have different meanings, the meaning that is most favourable to the consumer is to prevail.

(2) A consumer notice is transparent...if it is expressed in plain and intelligible language and it is legible.




2/
The notice to keeper was received on 29/12/15 which is outside permitted time frame as no ticket was put on vehicle at the time of alleged offence. The registered keeper is submitting this appeal and LDK do not have the identity of the driver, who is not the registered keeper.
As LDK has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act, the registered keeper cannot be liable for the charge. The parking company can therefore in relation to this point only pursue the driver.

3/
i appealed this charge as keeper on 07/01/16 and apparently they did not receive it although it was to the same email address used in later correspondence which was acknowledged by them. LDK are unlawfully demanding £160 (well above the BPA CoP ceiling of £100) and threatening debt collection after just 14 days, despite the fact the POPLA appeal window is open. This is a clear breach of the BPA CoP as an operator is not allowed to increase the charge nor pursue with debt collectors whilst a case is at POPLA stage. LDK have emailed this threat of debt collection and court without further warning, whilst on the other hand offering a POPLA code yet not explaining what the code was/the fact that I have a right to a full 28 days unfettered appeal window to submit this to POPLA. This isn't a fair or compliant rejection letter for a BPA AOS member, it is misleading harassment and I have complained again to the BPA about this emailed 'rejection' from LDK: (Below)


''Please note that that a Notice To Owner was sent out on 23 December 2015 and we did not receive any communication from you. We therefore had the right to pass the file over for Debt Recovery.

However as a gesture of goodwill, i have asked DRPL to put this file on hold for 14 days. This should provide enough time to settle the above. I must stress that shall the above remain outstanding , charges will increase.

A payment of £90.00 is to be received within 14 days after which charges will increase to £160.00.
Failure to comply will result in your details being passed on to Debt Collection Agents. We may also start court proceedings without further warning and extra cost will be incurred.

4/
Photographic evidence that is being used does not show the period that the vehicle was allegedly parked and was taken on a mobile phone which cannot be calibrated or checked.


5/ Signage
The alleged breach took place in low light and any signs were not adequately lighted to be seen clearly while driving (and indeed were not seen by the driver). I have attached photos that were taken by the driver at the time of alleged offence clearly showing there were no signs clearly visible to the driver on parking and leaving.

Unlike in the Beavis case, there was no contract agreed by prominent signage. It was incapable of being read so could not constitute any offer or consideration and in any case, the operative denied the driver the right to read and take up the offer to pay and display. There was no consideration flowing between the parties so the elements of a contract were absent.

The driver had no fair opportunity of becoming acquainted with the terms by which they would later be bound and there was a significant imbalance in the consumer's rights and obligations, directly caused by the parking firm employee's lie about it being 'too late' to pay, which was contrary to the CRA doctrine of good faith and fair dealing by traders. POPLA can see the sign does not state that a tariff payment can be 'too late' if made on that day whilst parked.

Also regarding the signs, there is nothing to tell drivers that their vehicle may be photographed (whether by ANPR or other cameras) nor how that data will be used. This is a breach of ICO rules for data processors and also a breach of the BPA CoP, which left the driver unaware that the parking attendant would use and store a mobile phone photograph with no times shown on it, for the purpose of applying for keeper data and to pursue a disproportionately higher charge than the driver could have paid as a tariff at the time.

The BPA Code of Practice states:

18.1 A driver who uses your private car park with your permission does so under a licence or contract with you. If they park without your permission this will usually be an act of trespass. In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are. (Please note that due to LDK’s positioning of the signage they were hard to see in low light and because the driver reversed into the parking space did not pass any signage.) 18.3 Specific parking terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving.”

There was no contract between the driver and LDK as they did not see any contractual information on any of the signs when entering the car park and therefore at that time had no idea that any contract or restrictions applied. As a consequence the requirements for forming a contract such as a meeting of minds, agreement, and certainty of terms were not satisfied.




6/ No contract with the Landowner
LDK does not own the car park and I dispute that they have the authority to enter into contracts regarding the land or to pursue charges allegedly arising.
LDK has also not provided any evidence which i specifically asked for that it is lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that the Operator has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name.
LDK must provide the POPLA Adjudicator with documentary evidence in the form of a copy of the actual site agreement/contract with the landowner/occupier. Specifically, to comply with the Code of Practice, the contract needs to specifically grant LDK the right to pursue parking charges in the courts in their own name, as creditor. Please note that a 'Witness Statement' to the effect that a contract is in place between LDK and the landowner will be insufficient to provide all the required information, and will therefore be unsatisfactory.





I have attached photos that were taken by the driver at the time of alleged offence clearly showing there were no signs clearly visible to the driver on parking and leaving.