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Harpenden rail station
BT68
Posts: 25 Forumite
Hi, we have an annual permit (orig issued by APCOA, but parking since managed by Meteor, who now come under Indigo) covering 2 cars but on 4/Jan/2016 the permit holder forgot to mark their commuting car as active on the permit online system, after having used the family car all through the festive season. A windscreen ticket was issued, and I appealed as the keeper using the standard template from newbies and it was rejected with a POPLA code. I've followed (sorry new user) h t t p 
/forums.moneysavingexpert.com/showthread.php?t=5356701 and made some changes, notably,
- mention the annual permit which should demonstrate that no loss was in fact suffered - the annual fee was paid.
- highlighted the fact that the windscreen ticket is titled 'Penalty Notice'. That seems to add more weight to the idea that the £100 penalty is an unfair penalty, rather than just a parking charge that someone can be claimed to have agreed to up front.
- added the fact that the Penalty Notice itself says the car park comes under Railway Byelaws, therefore keeper liability doesn't apply
Because I appealed as keeper, the PPC have also forgotten to send an NTK which should have been received by Monday 1/Mar/2016 latest AFAIK. So I kept that bit in as well. I've used the time waiting for that to arrive to read a lot of threads in this forum. My appeal is below. Any further advice before I send it in?
Thanks
BT68
--
Dear POPLA Assessor,
as the registered keeper of the vehicle above I am appealing against the penalty notice above. Below are my grounds for non-liability and I would ask that all points are taken into consideration.
1) Meteor have failed to establish keeper liability. Their original windscreen Penalty Notice advises "This car park is regulated by the terms and conditions of parking displayed at the car park in accordance with Rail Byelaw 14". Sites designated as Railways by the Secretary of State are subject to statutory control in the form of bylaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If Meteor/Indigo argue otherwise then they must produce the bylaws and maps to show that this part of the Railway is somehow exempt from statutory control. The onus falls upon Meteor/Indigo to demonstrate this and I put them to strict proof on this point.
Meteor/Indigo have failed to serve a Notice to Keeper. It has been completely omitted, Meteor/Indigo appear to have assumed it is not needed when a keeper sends a representation against a windscreen ticket. But in the schedule it is clear that a NTK is a fundamental document where the Operator does not know who the driver was (and in this case there have been no admissions on that matter.) Therefore even if this was a site where bylaws affecting parking did not take precedence, Meteor/Indigo have failed to establish keeper liability by forgetting the NTK.
2) No standing or authority to neither pursue charges or form contracts with drivers. Meteor (who issued the Penalty Notice)/Indigo (who responded to my initial appeal as keeper) have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.
Meteor/Indigo are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.
3) No genuine pre-estimate of loss. The parking charge did not fall under the category of a GPEOL on the following points:
i. The correct daily charge covering at least the time when the ticket was issued (10:30), was approx £3.30. The penalty charge of £100 is out of all proportion to any potential (or actual in this case, see below) loss on the part of Meteor/Indigo and therefore does not represent a genuine pre-estimate of loss.
ii. There is no loss flowing from this parking event. An annual permit covering the vehicle in question (Vehicle: XXX Reference: XXX) with the permit valid until 6/5/2016 has been purchased which demonstrates no loss has in fact occurred, and so this Operator cannot demonstrate any initial quantifiable loss. The penalty charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
iii) Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis
The contract entered into between the driver and Meteor/Indigo is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment was made. This makes plain that the sum of £100 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 Meteor/Indigo believe that inadequate payment was made (which their Penalty Notice fails to make clear and which I deny ) their demand should be for any unpaid tariff as that would be their only loss. The vehicle was parked for an authorised stay that was fully paid for. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Meteor/Indigo 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 by the Court of Appeal in the case of ParkingEye 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 is in stark contrast to the present case where there was an economic transaction between ParkingEye and the motorist, and no restriction on the time of stay was made provided payment 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 . As previously mentioned in this situation there is no such justification.
4) Unreasonable/Unfair Terms. The charge being claimed by Meteor is a punitive sum. The original windscreen ticket confirms this as it is headed 'Penalty Notice'. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness:
''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 consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff in good faith. Meteor/Indigo require strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to a persons detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
5) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Meteor/Indigo and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.
The main sign says ‘failure to display a valid ticket may result in you receiving a parking charge notice.’ The driver did not contravene the sign which says nothing readable about any other contraventions at all. The only noticeable risk of getting a PCN is for not displaying a ticket, nothing else. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Meteor/Indigo have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
I request that my appeal is upheld and that POPLA inform Meteor/Indigo accordingly that their speculative invoice must be cancelled
Thank you for your attention
Yours faithfully,
/forums.moneysavingexpert.com/showthread.php?t=5356701 and made some changes, notably,- mention the annual permit which should demonstrate that no loss was in fact suffered - the annual fee was paid.
- highlighted the fact that the windscreen ticket is titled 'Penalty Notice'. That seems to add more weight to the idea that the £100 penalty is an unfair penalty, rather than just a parking charge that someone can be claimed to have agreed to up front.
- added the fact that the Penalty Notice itself says the car park comes under Railway Byelaws, therefore keeper liability doesn't apply
Because I appealed as keeper, the PPC have also forgotten to send an NTK which should have been received by Monday 1/Mar/2016 latest AFAIK. So I kept that bit in as well. I've used the time waiting for that to arrive to read a lot of threads in this forum. My appeal is below. Any further advice before I send it in?
Thanks
BT68
--
Dear POPLA Assessor,
as the registered keeper of the vehicle above I am appealing against the penalty notice above. Below are my grounds for non-liability and I would ask that all points are taken into consideration.
1) Meteor have failed to establish keeper liability. Their original windscreen Penalty Notice advises "This car park is regulated by the terms and conditions of parking displayed at the car park in accordance with Rail Byelaw 14". Sites designated as Railways by the Secretary of State are subject to statutory control in the form of bylaws. POFA 2012 does not apply because land subject to statutory control is not 'relevant land' - this was found as fact by Senior Assessor Chris Adamson in POPLA ref 6060164050. The driver has not been identified, therefore as registered keeper I cannot lawfully be held liable for this charge. If Meteor/Indigo argue otherwise then they must produce the bylaws and maps to show that this part of the Railway is somehow exempt from statutory control. The onus falls upon Meteor/Indigo to demonstrate this and I put them to strict proof on this point.
Meteor/Indigo have failed to serve a Notice to Keeper. It has been completely omitted, Meteor/Indigo appear to have assumed it is not needed when a keeper sends a representation against a windscreen ticket. But in the schedule it is clear that a NTK is a fundamental document where the Operator does not know who the driver was (and in this case there have been no admissions on that matter.) Therefore even if this was a site where bylaws affecting parking did not take precedence, Meteor/Indigo have failed to establish keeper liability by forgetting the NTK.
2) No standing or authority to neither pursue charges or form contracts with drivers. Meteor (who issued the Penalty Notice)/Indigo (who responded to my initial appeal as keeper) have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear (at best) to have a bare license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.
Meteor/Indigo are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.
3) No genuine pre-estimate of loss. The parking charge did not fall under the category of a GPEOL on the following points:
i. The correct daily charge covering at least the time when the ticket was issued (10:30), was approx £3.30. The penalty charge of £100 is out of all proportion to any potential (or actual in this case, see below) loss on the part of Meteor/Indigo and therefore does not represent a genuine pre-estimate of loss.
ii. There is no loss flowing from this parking event. An annual permit covering the vehicle in question (Vehicle: XXX Reference: XXX) with the permit valid until 6/5/2016 has been purchased which demonstrates no loss has in fact occurred, and so this Operator cannot demonstrate any initial quantifiable loss. The penalty charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
iii) Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis
The contract entered into between the driver and Meteor/Indigo is a simple financial consumer contract. An offer of parking for a set sum was made and in return payment was made. This makes plain that the sum of £100 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 Meteor/Indigo believe that inadequate payment was made (which their Penalty Notice fails to make clear and which I deny ) their demand should be for any unpaid tariff as that would be their only loss. The vehicle was parked for an authorised stay that was fully paid for. £100 is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If Meteor/Indigo 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 by the Court of Appeal in the case of ParkingEye 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 is in stark contrast to the present case where there was an economic transaction between ParkingEye and the motorist, and no restriction on the time of stay was made provided payment 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 . As previously mentioned in this situation there is no such justification.
4) Unreasonable/Unfair Terms. The charge being claimed by Meteor is a punitive sum. The original windscreen ticket confirms this as it is headed 'Penalty Notice'. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''
Test of fairness:
''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 consumers.
5.1 Unfair terms are not enforceable against the consumer.
9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”
It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff in good faith. Meteor/Indigo require strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to a persons detriment and to justify that the charge does not breach the UTCCRs and UCT Act.
5) The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Meteor/Indigo and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.
The main sign says ‘failure to display a valid ticket may result in you receiving a parking charge notice.’ The driver did not contravene the sign which says nothing readable about any other contraventions at all. The only noticeable risk of getting a PCN is for not displaying a ticket, nothing else. Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Meteor/Indigo have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival.
I request that my appeal is upheld and that POPLA inform Meteor/Indigo accordingly that their speculative invoice must be cancelled
Thank you for your attention
Yours faithfully,
0
Comments
-
If you use GPEOL you need to explain why your case is different to the Beavis case. Railway land is normally covered by byelaws so is not relevant land as far as POFA 2012 is concerned so it doesn't apply, so no keeper liability.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
As above - no keeper liability is number one then, in the POPLA appeal, which is why we tell the keeper to appeal (the entire point of it!).A windscreen ticket was issued, and I appealed as the keeper using the standard template from newbies
Did Meteor remember to send a Notice to Keeper in the post?PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you both. I reordered my proposed appeal above to put No Keeper Liability first and included a section 3 iii) (following renumbering) about why this is different from Beavis, again using a large chunk pointed to from the Newbies thread.
And no, no NTK was ever received, as noted above.
Any other comments gratefully received!
Thanks0 -
I'm going to submit my POPLA appeal today, as my code expires in a couple of days. Wish me luck :-)0
-
So, got a "Unpaid penalty notice to owner" letter today from "PCN Admin Centre (a trading name of ZZPS Ltd)" / Indigo.This has come more than 56 days after the windscreen ticket on the 4th Jan. Claims "an offence was committed by breaching Byelaw 14", and refers to "penalty was issued under section 219 of the Transport Act 2000 as ammended under the Railways Act 2005". Penalty now stands at £124. Lots of references to www dot ipaymypcn dot net to pay etc.
I appealed, as I said earlier, as RK before even getting a NTK (which they never sent), and the appeal is still at Operator evidence gathering stage on the Popla website. Interestingly though, the small appeals section on the back of this letter says to appeal at www dot ipaymypcn dot net, then if rejected to appeal via IAS. I consider myself well-read enough on MSE to know how that will end. I guess I'll just see what happens with POPLA appeal.0 -
POPLA Track Appeal site:
Appeal has been withdrawn by the operator
Withdrawn on 23/03/2016
Withdrawal reasons: We have no photographic evidence of the signage
Email from POPLA:
xxxxxxxxxxxx Message from POPLA PTL:000xxxx
info@popla.co.uk
Dear xxxxx
Thank you for submitting your parking charge Appeal to POPLA.
An Appeal has been opened with the reference xxxxxxx.
Indigo Solutions have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.
Yours sincerely
POPLA Team
ETxxxxx/00
Woohoo!
Thanks folks.0 -
well done
I would also complain to the BPA that Indigo passed this for debt collection by ZZPS whilst a popla appeal was ongoing, in breach of the BPA CoP
they may ignore it, but its worth a punt0 -
Withdrawn on 23/03/2016
Withdrawal reasons: We have no photographic evidence of the signage
Pretty pathetic from a company whose 'contracts' rely on signage! Well done!PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Complain also to Trading Standards that ZZPS and its principal Indigo are using misleading and aggressive practices in referring to byelaws offences when:
(i) no offence has occurred; the byelaws offence is not paying, and you demonstrably did pay;
(ii) they haven't got the slightest intention of prosecuting any byelaws offence and nor do they have the power to do so.
Unfortunately Hertfordshire TS is one of those that refuses to speak to mere members of the public and insists that you call the useless CAB. You will have to put your complaint in writing to TS. Copying it to your County Councillor and your MP might (but probably won't) get them to take some notice of it.
Oh, and see if you can get the Herts Advertiser interested. They have run stories about ticketing at Harpenden Station before.0 -
complaint to BPA sent0
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