out of time?

Coupon-mad

Just noticed you have no appeal point about the rationale of the charge and you need one because it is disproportionate to any tariff which is arguably, an unenforceable penalty.

You could add this:

7) No GPEOL: this is the opposite of the complex contract in ParkingEye v Beavis as this one is a 'simple financial contract' where the operator has failed to mitigate any loss

The Beavis case was considered to be a 'complex' contractual arrangement with a specifically argued 'legitimate interest'. Here, LDK has shown no comparable 'legitimate interest' in enforcing their charge and nor have they shown it is anything more than a standard monetary contract, where GPEOL is still a requirement (as was reiterated in the Supreme Court hearing).

The purported contract with the motorist is undoubtedly a simple financial contract where any alleged loss is easily calculable from the tariff board (knowledge denied to the driver). This is unlike the complex arrangement - a valuable licence to park free of charge at first, offset with a 'quid pro quo' £85 charge - in Parking Eye v Beavis. By contrast, here there is an alleged obligation regarding a quantified financial interaction between the operator and motorist and that was presumably a pound of two (a typical parking tariff). However, by their own volition LDK have failed to mitigate any loss to that small sum, indeed they refused to accept payment from the driver on the day in the car park so cannot lawfully be awarded unconscionable and exorbitant 'compensation'.

The £160 'charge' that LDK now say is due is well in excess of the BPA CoP ceiling and around a hundred times the likely tariff! This is clearly an attempt to impose payment of a large sum in consequence of the non payment of a very small sum, contrary to the Consumer Rights Act 2015 and contrary to Lord Dunedin's four tests for a penalty.

Some parking firms seem to be under the misapprehension that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. They also seem to cling to the hope that POPLA will believe that the UTCCRS (now within the Consumer Rights Act 2015) do not apply somehow, to any parking charge case! In addition, the CPUTRs 2008 protects consumers against unfair contract obligations arising from misleading business practices, such as the underhand way the driver was treated in this instance. Whether a defendant/appellant mentions the fairness of a contract term or not, courts are obliged to ALWAYS give consideration to the fairness/unfairness of any contract or term.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty. But this case can easily be distinguished from Parking Eye v Beavis and this case is not a 'complex' contractual arrangement at all.

The Beavis case is not relevant to any other car park except that precise situation and location in that unique case (as the SC Judges were at pains to Tweet as soon as the decision was made public). A thorough review of the findings from the Supreme Court and the Court of Appeal hearings, shows that case has no application to a Pay and Display car park whatsoever.

There is no 'legitimate interest' in enforcing a punitive charge against a motorist who had parked and was then preparing to pay but was lied to and warned off. In this case the driver had no idea that they would later be bound by a penalty out of all proportion to the tariff they could have paid if not obstructed by LDK. This is not the same as in the far more complex Beavis case, where the driver was considered to have understood and accepted all terms which were 'clear and very prominent' and where there was no tariff in play to make it a standard contract.

This £160 charge is simply being enforced in an attempt to punish the motorist. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment, as regards any type of 'simple financial contract' such as this one where the opportunity was denied by LDK, of a basic economic transaction of a tariff paid by a driver.

The Supreme Court adjudged that the charge in Parking Eye v Beavis, although engaging the penalty rule, also disengaged it and that the case was stated more than once to be more 'complex' than a standard financial contract. The court considered that Lord Dunedin's tests to identify an unenforceable penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant' and the court stated that the penalty rule was certainly engaged.

The 'legitimate interest' in Beavis was complex and specific to that car park and 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;

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

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

e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”-


The above justifications are irrelevant in this situation and conspicuously absent.

Here, this is one of those standard contract cases that the Court of Appeal stated had been seen many times before. The car park is no different to any commercial enterprise and a trader cannot argue that a legitimate interest is simply ensuring that a very high payment is made instead of the tariff (especially when their employee denied the driver his right to pay that tariff). If that was the situation, any contractual term requiring payment for breach would never need a supporting legitimate interest and could always disproportionately exceed the loss, even in standard contracts.

This position is reinforced in the Beavis judgment from the Court of Appeal, which makes clear they were considering only complex cases 'of this kind/a contract such as we are concerned with' - a situation which was very different from any car park with a tariff:

Lord Justice Moore-Bick at 27: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss suffered by the innocent party is inappropriate.”

Sir Timothy Lloyd at 47: “[...] 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 disincentive, or deterrent, against overstaying”.

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...''

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 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...

47. ''...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...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 have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before and the Supreme Court's findings reiterated that its decision was specific to that car park and the specific complex set of interests/the complex nature of that contract alone.

'ENTIRELY DIFFERENT'. So without displaying intellectual dishonesty it would be impossible to apply Beavis to this case.

salmosalaris

Do the above
Don't fiddle with it , simply c&p

specialbru

Submitted appeal and just received this from ldk
PCN was issued at Former Worswick Bus Station, in Newcastle upon Tyne ON 9TH December 2015 at 10:56 for being parked without displaying a Valid Parking Ticket. The above site is a Pay & Display car park and has several prominently displayed Warning Signs. The warning signs bear Terms and Conditions for parking on site.

The driver has submitted a very long appeal and has at no point disputed that they did not see the warning signs. It therefore show that the driver made a conscious decision to park on site in violation of the displayed Terms and Conditions.

Parking Charge Unfair?
The Beavis v Parking Eye Court case addressed the issued on Unfair Pre-Estimate Costs on a £85 PCN. The court rules in favour of Parking Eye and decided that the charge was fair. Our PCN is £90 and I argue that it is fair and in line with what was decided by the courts. The driver made a decision to park on site in violation of our Terms and Conditions and therefore agreed to pay any charges emanating from their decision.

The driver refers to a conversation with our member of staff regards. We have checked and no one recalls that conversation. I also cannot understand the reason of having a conversation with a Patrol Officer when there is enough information displayed throughout the car park .

The driver also refers to Consumer Rights Act 2015, but the act has no bearing in this matter.


Schedule 4
The Notice To Keeper was sent on 23 December 2015 and no mention of POFA at all . There is no reliability on time in terms of getting Vehicle Keeper details from DVLA for us. For that reason following advice from both BPA and DVLA , we do not mention POFA or Schedule 4 anywhere in the correspondence we sent out.

All debt recovery proceedings were stopped from the time we realised that driver had appealed to POPLA . If there might be letters being received by the driver, they will be residuals in the debt recovery system. Debt recovery will certainly resume shall POPLA rule in our favour.

For clarity sake, PCN has £90.00 outstanding only at the moment.
This was made clear to the driver in the correspondence they have copied into this appeal.


Signage
As mentioned earlier, there is enough signage on site and photographic evidence collected show that there was signage on display when PCN was issued. Please refer to images attached and look at the times when they were collected. The images were collected on the same day, within seconds of each other








Contract with the Landowner
Please see attached.950478a and 950478b

PCN Costs
Again for the sake of clarity, PCN has only £90.00 outstanding. If the driver had settled within 14 days, they would have paid £45.00. The PCN remained outstanding after 28 days and we had the right to pass details over for debt recovery. Charges thereafter would go up to £160.00 or more. We have less control over the costs debt recovery agents incur to recover the outstanding PCN. To us what will be remitted is £90.00 only.



Images
In contrast to what has been mentioned and claimed by the driver, the PCN was issued at 10:56 am and there was very good visibility for signage to viewed. The images below bear testimony to this. I am aware that the driver has attached a series of images but I am not sure if they were collected on the day PCN was issued. The images collected by Ldk Sec Group Ltd have a Date & Time stamp on them. These are the images, which POPLA have to rely on because they represent what was collected when PCN was issued

950478 c shows the vehicle as it was observed on the day PCN was issued. No Valid Parking Ticket was displayed. For clarity purposes, what was on display is highlighted in 950478d



Coupon-mad

Dear POPLA,

My comments on this operator's evidence are as follows, in red. POPLA will see I cannot be held liable as keeper of the car because POFA wasn't followed but I have taken the opportunity to correct the operator where they have referred to me (the appellant) as 'the driver' when this has never been established and I am appealing as the registered keeper, as is my right:

LDK's words:

''The driver (they mean the keeper but are trying to muddy the waters) has submitted a very long appeal and has at no point disputed that they did not see the warning signs. It therefore show that the driver made a conscious decision to park on site in violation of the displayed Terms and Conditions. (This is denied and they have ignored point #5 of my appeal where I specifically said ''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'').

Parking Charge Unfair?
The Beavis v Parking Eye Court case addressed the issued on Unfair Pre-Estimate Costs on a £85 PCN. The court rules in favour of Parking Eye and decided that the charge was fair. (That is as maybe, regarding THAT ParkingEye charge but that decision was only about the interests in THAT car park with THOSE prominent terms/charge in 'large lettering' on plentiful, clear and lit signs which were drawn to Mr Beavis' attention. The Judges considered it a complex contract which at the Court of Appeal stage was observed by Moore-Bick LJ to be 'entirely different' from a standard economic contract where the contract turns on a monetary transaction, like a tariff...).

Our PCN is £90 and I argue that it is fair and in line with what was decided by the courts. It is not in line with the Beavis decision because the regime here is nothing like the free licence followed by £85 charge which was said to be a 'complex' contract with a commercial justification which - unusually - disengaged the penalty rule IN THAT CASE ALONE. This situation is not the same 'common practice' found in SOME car parks across the UK of offering free parking followed by a fine of £85 so POPLA cannot assist the operator nor write their case for them with a standard chunk of irrelevant and paraphrased text about the Beavis case, when LDK have made no effort to draw any similarity or argue why their charge is not a penalty.

It is worth noting that the previous POPLA Lead Adjudicator, when adjourning cases for the Beavis outcome, stated in 2015:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''

LDK have completely failed to make a compelling case, or any case at all to support their charge which is hugely disproportionate to the alleged unpaid tariff. I contend that the penalty rule remains firmly engaged and cannot be unlocked merely by LDK blindly throwing the Beavis case into the ring with no attempt at all to justify theor OWN charge in these very different circumstances.

The driver made a decision to park on site in violation of our Terms and Conditions and therefore agreed to pay any charges emanating from their decision. No they did not because I said in my appeal they did not see the signs so this is nothing at all like the Beavis case and is supported much more by Vine v Waltham Forest - where a driver had no opportunity to learn of the terms by which they would later be bound. It is noted that LDK has made no attempt to show any 'legitimate interest' AT ALL which could give a landowner any right to pursue more than a nominal sum for trespass. In the Beavis case it was only because ParkingEye set out a detailed picture of a 'legitimate interest' specific to that site that was the reason the Judges decided in their favour. Had ParkingEye not bothered, they could not have won the case because it in incumbent upon the party pursuing a charge to set out their claim and interests, otherwise a disproportionate charge remains a penalty. In Beavis is was stated 'the penalty rule is plainly engaged' and in this LDK case, it still is because the operator has made no case of commercial justification.

The driver (they mean the keeper appellant) refers to a conversation with our member of staff regards. We have checked and no one recalls that conversation.(They would say that wouldn't they, and they have provided no evidence such a notes from the attendant saying as much).

The driver also refers to Consumer Rights Act 2015, but the act has no bearing in this matter. (Yes it does. Every consumer contract has to be judged for unfairness and against the CRA!).


Schedule 4
The Notice To Keeper was sent on 23 December 2015 and no mention of POFA at all . There is no reliability on time in terms of getting Vehicle Keeper details from DVLA for us. For that reason following advice from both BPA and DVLA , we do not mention POFA or Schedule 4 anywhere in the correspondence we sent out. (I thank the operator for confirming they cannot hold me liable as keeper under the POFA, so my appeal point stands).

All debt recovery proceedings were stopped from the time we realised that driver had appealed to POPLA . (They breached the BPA CoP by not 'stopping work' on the case during the appeals window and they exceeded the £100 ceiling in the CoP, in those demands).

For clarity sake, PCN has £90.00 outstanding only at the moment.
This was made clear to the driver. (they mean 'the keeper appellant', and no it was not, the latest demands were well in excess of £100).

Signage
As mentioned earlier, there is enough signage on site and photographic evidence collected show that there was signage on display when PCN was issued. Please refer to images attached and look at the times when they were collected. The images were collected on the same day, within seconds of each other. (And as stated in the appeal, the driver was given no opportunity to read those signs because the attendant told the driver it was 'too late' to pay when in fact the signs have NO time limit on when a driver can pay and display whilst in the car park. No signs were seen and the parking charge of £90 was not in the same 'large lettering' as impressed the Judges in the Beavis case).

specialbru

Thank you i have also been able to extract the meta data from photos provided by me which proves they were taken at the time should i provide them ?

Coupon-mad

Yes I certainly would do and add that but be very careful to say (talking about the driver only in the third person):

I would also like to comment on this part of the evidence, where LDK say:

''Images
In contrast to what has been mentioned and claimed by the driver, the PCN was issued at 10:56 am and there was very good visibility for signage to viewed. The images below bear testimony to this. I am aware that the driver has attached a series of images but I am not sure if they were collected on the day PCN was issued. The images collected by Ldk Sec Group Ltd have a Date & Time stamp on them. ''

I can be sure that the images supplied by the driver were taken at the time and I can prove it, unlike LDK with their unreliable evidence. The driver has provided the metadata (attached) for the photos, to prove they were taken at that time, on that day. By comparison, private parking company photos with time/dates on them are not worth the paper they are printed on because the details are so easily changed by an unscrupulous employee (this link mentions a different operator but illustrates how easy it is for this 'industry' to fake evidence by changing times/dates supposedly 'stamped' on photos):

http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

Given that the employee at this car park which is the subject of this appeal, lied and told the driver that they were 'too late' to pay and display rather than make any attempt to mitigate loss, I feel the driver's evidence being permanent metadata is a far more reliable record of the site at the time. The driver's evidence shows that the terms were not 'prominent' and the sum of the charge was certainly illegible and not in 'large lettering'. This is not an example of 'adequate notice of the charge' that the law (POFA Schedule 4) or the BPA CoP requires and denying a driver's clear right to pay at the machine, in order to penalise them instead, is quite clearly a misleading and unfair business practice which creates a significant imbalance in the rights of the consumer, contrary to the Consumer Rights Act which LDK seem unaware, is binding legislation which indisputably applies to their 'contract' as it does to all consumer contracts since 1st October 2015. They have not said why they think their contract is exempt from the CRA and they clearly have no interest in complying with consumer protection legislation or their Trade Body's Code of Practice.

henrik777

LDK's words:

''The driver (they mean the keeper but are trying to muddy the waters) has submitted a very long appeal and has at no point disputed that they did not see the warning signs. It therefore show that the driver made a conscious decision to park on site in violation of the displayed Terms and Conditions. (This is denied and they have ignored point #5 of my appeal where I specifically said ''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'').

Although it is possible the keeper was there, they may not have been. It is perfectly feasible for the keeper not to be present and in such a case it would be impossible to see the signs even i they were 200m wide and flashingneon lights.

specialbru

im just trying to copy the appeal and its limited to 2000 letters on popla website any idea what I can do? ive read on her e to email popla but cant find an email address.

Coupon-mad

Obviously email it as a PDF instead as has been said sooo many times.

specialbru

sorry to be so thick but I can only find the [EMAIL="info@popla"]info@popla[/EMAIL] email is this the one I should use?