UKPC PCN - Lakeside rise Manchester (residential)

xpyd

Hi all,

Thank you thank you all for all the incredible advice and resources on this forum!

I really need some help at the moment. I know I'm at this really last minute as my POPLA appeal is due this Thurs, but haven't had much time outside of work to do much normal human living recently!

I've been going through a lot of posts over the last few weeks, but theres still a lot that I don't fully understand!

Anyways, this is the situation and where I stand.
The driver parked at a visitors bay at a residential car park, a visitors permit is already attached to the windscreen.
The PCN is for "parking for longer than the max period permitted". The NOK states the same.

I made my initial appeal to UKPC following the advice and template in the Newbies thread and one of the other threads suggested.
In the rejection letter it states "vehicles are not permitted to park in visitors bays for over 8 hours".

(Apparently the residents of the apartment were informed of the limit for visitors when they were supplied the permits (to be given to visitors) - I'm not sure how much this affects the appeal?)

On investigating the signs in the car park, it turns out that some signs don't show this max permitted time, and some do!

I will post my draft POPLA appeal below, I would appreciate any advice!
My main queries are -
- I understand from reading some of Coupon-Mads advice that one of the main points should be No keeper liability, however I am really struggling to understand how to make this argument. I have been through a lot of other appeals, but most of them have been P&D, or no NTK. (I believed it has followed the timescale required, and as far as I can tell satisfies the requirements in Schedule 4 - but this is as far as I can tell! )
- I worry that its mostly cut and paste, and that its too lengthy - should I be cutting down on my points?
- I don't really know if the Aziz test applies here??

I'm sorry if it doesn't read well! I haven't finished with it yet but I've been up with it all night and its 6am and I've to get ready for work in less than an hour.

I'll post the draft below. Please advice!! Thank you!!!

xpyd

Re:
UKPC PCN reference no
POPLA reference no:

Background from the appellant who is the registered keeper (the driver was not evidenced):

POPLA APPEAL

I am the registered keeper of vehicle xxxxxx, and I wish to appeal a parking charge from UKPC.

The vehicle in question was parked in a visitors bay of a residential car park at Lakeside Rise, Blackley, Manchester.

I have spent several weeks researching about the charges from UKPC and found this appears to be an all-too-common, misleading trap set by this specific private parking company, as widely reported online by victims and I now feel strong enough to exercise my right to appeals this to POPLA.
I submit the points below to show that I am not liable for the parking charge:

1) The signage was ambiguous, unclear, and misleading
2) Unreasonable and unfair terms – Fails the ‘Aziz test’
2) No standing or authority to pursue charges nor form contracts with drivers
3) No genuine pre-estimate of loss


1) Ambiguous, unclear, and misleading signage

Since receiving the notice to keeper informing me that the vehicle had been “parked for longer than the maximum period permitted”, I have been to review the signs available in the car park to establish if this condition was made clear on parking.

I noted that the signs are located high up on the walls of the buildings in the car park, and the actual “terms and conditions” (T&C) are printed in font so small, that I, standing at a height of 5 foot 2 inches, found them difficult to read. However, I established that although 5 T&Cs were named on the sign, none of them mentioned a maximum period of parking permitted.

I submit photographic evidence of the sign on Tower 4, the closest sign available to the visitors bay where I am told the driver had parked.

Therefore I was further confused and bewildered when UKPC rejected my initial appeal, stating that “vehicles are not permitted to park in visitors bays for over 8 hours in this car park”.

I returned yet again to the car park to clarify this issue, and noted that there were several signs located 7-8 feet up on lampposts around the car park. At that height, it was proving close to impossible for me to read the T&Cs printed on it. However on close scrutiny, I noticed that the 5 T&Cs printed, were different to the initial sign that I had seen. On one of them, I was eventually able to make out an image of a clock, and the number 8 next to it. I have still not been able to fully read the T&Cs of the sign, and even attempts at taking photographs to assist this have been unsuccessful due to the height of the sign, rendering the photographs unclear.

As all the signs appear from a distance to be similar, there is no reason to suspect that the terms and conditions printed on each would differ. And in fact, this appears to be a deliberate attempt by UKPC to be deceptive and mislead visitors!


2) Unreasonable and unfair terms – Fails the ‘Aziz test’

It is wholly deceptive and unfair on drivers to have signs with differing information and terms and conditions. Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the CPUTRs.

This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which places an unfair burden upon the keeper, breaching Schedule 2 of the UTCCRs and the Unfair Contract Terms Act:
‘’SCHEDULE 2 Regulation 5(5) INDICATIVE AND NON-EXHAUSTIVE LIST OF TERMS WHICH MAY BE
REGARDED AS UNFAIR –
1. Terms which have the object or effect of –
(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation;
(i) irrevocably binding the consumer to terms with which he had no real opportunity of becoming acquainted before the conclusion of the contract...’’
Unfair Contract Terms Act 1977:
‘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.’

Obviously if drivers had any idea that the operators had intentionally displayed signs with differing T&Cs on them, and would go on to penalise them for “breaching” conditions that they did not know existed, they would not park at this car park at all because this is contrary to good faith.

In the Barry Beavis v ParkingEye hearing at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5.

The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance.

I can state as an indisputable fact that the driver would without a shadow of doubt, never have agreed to this term, had it been negotiated in advance and if we knew then what we know now the driver would never have entered a UKPC run car park.

Under the Consumer Rights Act now enacted, the question of unfairness in any consumer contract must be considered by the Courts (whether a consumer raises this issue or not) and therefore by definition, should also be a consideration of an ADR prior to court. It is suggested that it would be unjust if POPLA were to settle on anything less than a consistent approach: i.e. that any PCNs where operators have acted or operated unfairly, like this one, should be cancelled.

This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.


3) No standing or authority to pursue charges nor form contracts with drivers

I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, UKPC must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. Therefore this Operator has no authority to issue parking charge notices (PCNs) which could be BPA Code of Practice compliant. Any breach of the BPA Code of Practice means that 'registered keeper liability' has not been established, since full compliance is a pre-requisite of POFA 2012.

I therefore put UKPC to strict proof to provide POPLA and myself with an un-redacted, contemporaneous copy of the contract between UKPC and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to UKPC.


3) No genuine pre-estimate of loss.

The charge is a penalty and not a genuine pre-estimate of loss. The charge of £100 is punitive and unreasonable, contravening the BPA Code of Practice section 19. UKPC must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so UKPC have no cause of action to pursue this charge.

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens of £100 came about.

The Operator alleges 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate. Any later 'new' calculation (even if dressed up to look like a loss statement) would fall foul of Mr Greenslade's explanation about GPEOL in the POPLA 2014 Report and would also fall foul of the DFT Guidance about private parking charges.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.

The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal is adjourned pending the Beavis case.
POPLA Assessor Chris Adamson has stated in June 2014 that:

''the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made. Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''


This concludes my POPLA appeal.

Yours faithfully,



Redx

I am afraid that you have been looking at old pre-Beavis appeals there , his case ended in NOV 2015 at the Supreme Court, so any examples you use must be made on post-Beavis arguments and so your GPEOL is cribbed from an appeal made during the Beavis court cases, whereas its all different now

I fail to understand why you would use 2015 examples in march 2016 , nothing older than 4 months would be the best scenario to draft your popla appeal

read the linked examples from post #3 of the NEWBIES sticky thread , read any 2016 examples on here, both UKPC , plus others like CEL or PE by using suitable search words in the search box , limiting yourself to the last few months when reading.

look at the popla decisions thread, from the last page going backwards, read the threads associated with the successful decisions from 2016 and see how they were worded

the basics are

POFA 2012 failures
NTK faults or omissions
No contract
Driver not identified and POFA2012 does not apply to the keeper ?
No authority to pursue drivers or keepers (no locus standii)
Poor or conflicting signage
photographic issues (UKPC have form for doctoring photos etc - fraud)
Grace Periods at either end of the parking period
anything in the lease regarding "quiet enjoyment" etc
Unfair terms and conditions
with the not a gpeol, how this case differs from the Beavis case
(this is so they dont try to apply the Beavis judgment)

depending on your initial appeal, plus the NTK etc, look at those arguments and put the best ones into your appeal

if you did not identify the driver in the initial appeal, look for NTK flaws, failures or omissions and check if POFA2012 was complied with - or not

the section 3) gpeol needs a complete rewrite, but check the others against my list, and maybe add more depending on what I have said and what you find

a much newer and better one to crib from was this recent thread, although you will have to use some of yours regarding the signage differences etc

https://forums.moneysavingexpert.com/discussion/5429302

a "best of both" would be a good approach, but it has to reflect your car park and your lease etc, not theirs , so you need to weed out stuff they have put in that isnt relevant and use your own words and relevance instead , especially changing ETHICAL to UKPC

but most of the work is done for you, a simple 30 second forum search using UKPC POPLA APPEAL found that thread

here was another "hit" with most of the stuff you need

https://forums.moneysavingexpert.com/discussion/5431088

ps:- you have 4 appeal points but there are two points labelled 2) and no 4), so incorrect numbering etc

the signage point seems good for now but wait for any other critique on that one

Coupon-mad

Try this although I lifted much of it from another UKPC case on pepipoo yesterday so you'll need to check every line has relevance (i.e. that nothing is left in about that car park, not yours).

I've used your signage point wording as you said some signs do not say anything about the 8 hours.

I've left the 'no keeper liability' part blank right now; the NTK needs comparing to para 8.





Dear Assessor

I am the registered keeper and this is my appeal to a PCN which was issued to the vehicle when legitimately parked with a visitor's permit.

My appeal points are:

1) Ambiguous, unclear, and misleading signage.
2) No 'relevant obligation' nor 'relevant contract' under Schedule 4 of the POFA.
3) No Landowner authority/contract - a managing agent is not the landowner.
4) No Keeper Liability due to omissions in the NTK.
5) This case can be distinguished from Parking Eye v Beavis which does not apply.
6) I rely on the binding authority in Vine v Waltham Forest which was a Court of Appeal judgment, about a driver not seeing the terms and not deemed bound by them.



1) Ambiguous, unclear, and misleading signage

Since receiving the notice to keeper informing me that the vehicle had been “parked for longer than the maximum period permitted”, I have been to review the signs available in the car park to establish if this condition was made clear before parking.

I noted that the signs are located high up on the walls of the buildings in the car park, and the actual “terms and conditions” (T&C) are printed in font so small, that I, standing at a height of 5 foot 2 inches, found them impossible to read.

However, I established that although 5 T&Cs were named on the sign, none of them mentioned a maximum period of parking permitted.

I submit photographic evidence of the sign on Tower 4, the closest sign available to the visitors bay where I am told the driver had parked.

Therefore I was further confused and bewildered when UKPC rejected my initial appeal, stating that “vehicles are not permitted to park in visitors bays for over 8 hours in this car park”.

I returned yet again to the car park to clarify this issue, and noted that there were several signs located 7-8 feet up on lampposts around the car park. At that height, it was proving close to impossible for me to read the T&Cs printed on it.

However on close scrutiny, I noticed that the 5 T&Cs printed, were different to the initial sign that I had seen. On one of them, I was eventually able to make out an image of a clock, and the number 8 next to it. I have still not been able to fully read the T&Cs of the sign, and even attempts at taking photographs to assist this have been unsuccessful due to the height of the sign, rendering the photographs unclear.

As all the signs appear from a distance to be similar, there is no reason to suspect that the terms and conditions printed on each would differ. And in fact, this appears to be a deliberate attempt by UKPC to be deceptive and mislead visitors!




2) No 'relevant obligation' under Schedule 4

No promise was made by the driver to move the car after 8 hours because of the ambiguity of the sign.

There can be no keeper liability without a 'relevant obligation' giving rise to a requirement for a driver to pay parking charges. This requirement is defined in Schedule 4 as follows:

“relevant obligation” means—
(a)an obligation arising under the terms of a relevant contract; or
(b)an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;

An 'obligation arising from a relevant contract' would be one where the terms are transparent, prominent and clearly communicated to the driver before parking. The driver was a visitor and not even the resident knew about any 8 hour restriction on visitor parking, which was explained not in the Notice to Keeper but in the Notice of Rejection, far too late to be imported into any contract or retrospectively create any obligation.

A contract is formed in a car park only if terms are clear and accepted/known before parking. This cannot be found to be the case in a car park where the signs differ - not all mention anything about the 8 hours and ALL of them merely have the 'parking charge' in very small font if at all.

Schedule 4 is specifically dependent in paragraph 3 (below) upon 'adequate notice' of the parking charge being communicated to the driver in advance and this was not the case:

For the purposes of sub-paragraph (2) “adequate notice” means notice given by—

(b) ...the display of one or more notices which— (i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

That would require clear and prominent signs throughout the site, carrying wording that is transparent and legible in low light and with the terms and 'charge' in large letters (in the Beavis case this was 96 point in bold font).




3) No Landowner authority/contract - a managing agent is not the landowner.

As UKPC do not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

A site agreement with another non-landowning agent (such as a managing agent) is not proof of authority from the landowner.




4) No Keeper Liability

---

5) This case can be distinguished from Parking Eye v Beavis. There is no commercial justification possible and the signs fail to meet the bar set in the Beavis case.

UKPC are quoting Parking Eye v Beavis, I do not understand how the result of this court case could possibly be related to UKPC's charge here. The only similarity is that they are both called a 'parking charge' but here, UKPC's charge is penal, unfair and unsupported by any compelling 'legitimate interest' beyond that of the parking firm's own profits alone - which renders it unenforceable.

Parking Eye had control of the car park to enforce a time limit and were expected by the landowner to ensure a regular turnover of parking for customers of retailers. The area of parking in question regarding this UKPC charge has no such time limit, no customers needing spaces in a busy car park and there is no 'turnover of bays' requirement. The whole estate is empty apart from two offices, with approx 150 spaces free at any time, because the rest of the estate (probably 10 units) are empty. In any case, the vehicle was parked not in the main car park but next to the office building where there are no lines indicating any restriction and it is not clear among the various office car parks, where the 'car park' boundaries might begin and end. Signage is sparse and lines non-existent, unlike in the Beavis case.

The signage communicating the £85 charge was found to be very 'prominent' in ParkingEye's case at the Supreme Court, unlike the signage in question here. ParkingEye were also able to show that the complex contractual arrangement in that specific car park was not an unenforceable penalty, only in that case, despite the Judges saying that the penalty rule was plainly 'engaged' in private parking charge cases.

The Supreme Court decision in ParkingEye v Beavis states that the contract is accepted by performance in a driver parking, reading signage and being clearly informed of terms and given a 'valuable' licence to park. Mr Beavis was considered to have read the 'very prominent' terms first which showed the parking charge 'in large lettering' and by the action of parking and leaving his car, he was found to have made a promise which constituted consideration and acceptance of terms. This decision does NOT simply transfer seamlessly to all other types of parking charges and car parks where no licence to park is offered or where no similar commercial 'legitimate interest' exists, without twisting the facts.

Parking charges in less 'complex' cases can very easily be found to be unenforceable penalties, as was discussed at length in the Beavis case;

LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees):

14. …where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’

31. The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. These are not natural opposites or mutually exclusive categories. …The question whether it is enforceable should depend on whether the means by which the contracting party’s conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.

32. The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The (operator) can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.

I ask the POPLA Assessor, please - in all fairness to myself as a consumer - to stop and read this point thoroughly before engaging the 'POPLA rationale standard template Beavis paragraph' which simply does not apply across the board. POPLA's template paragraph is already the subject of several complaints to ISPA, being blindly misapplied and unfair to consumers by not considering the facts that set a situation at odds with the Supreme Court findings. The Judges in Beavis made clear that the facts of each case/contract/interest/signs MUST be considered and the official Supreme Court tweeted, on the day of the decision, that their findings to that car park/those signs/those interests in that case.

In the Supreme Court judgment in ParkingEye v Beavis, it was held that there was no loss to the parking operator, and therefore the doctrine of penalties was engaged. However, the charge in that 'complex' case was saved from being struck out as a penalty, by virtue of unusually clear signs and because it served a 'legitimate interest' relating to the landowner's aim for a turnover of spaces in a free retail park. By contrast, in the case of residential parking, the only legitimate interest lies in ensuring that parking spaces are occupied by genuine residents and their visitors, and not abused by random motorists with no connection to, or business within, the property. A visitor with a permit is not an abuser, certainly not when the terms are so unclear.

The issuing of parking charges to residents and visitors, as in this case, serves no legitimate interest, and therefore the Claimant cannot rely on the Beavis judgment, and it is submitted that the charge will fall foul of the penalty rule. The Beavis case supports that view.



6) I rely on the binding authority in Vine v Waltham Forest CA [2000] about a driver not seeing the terms and not deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

https://en.wikipedia.org/wiki/Vine_v_London_Borough_of_Waltham_Forest

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking. There was never any suggestion that the plaintiff was other than a truthful witness and the clamping fee extorted from her under no lawful excuse was an act of trespass and the charge had to be refunded.

That case supports and upholds my appeal and it is a Court of Appeal judgment, binding on lower courts, which is far more relevant than the Beavis case in this instance where UKPC have no prospect of any legitimate interest and clearly aim to punish any alleged defaulter, without making the terms clearly legible from a driver's seat before parking.

Where a parking charge is penal with no legitimate interest extending beyond claiming restitutionary damages, it cannot be saved by the Beavis case and the penalty rule remains firmly engaged. This charge must be deemed unenforceable and the PCN not properly given.

The_Deep

You might like to mention that they are not known for their honesty, read this

[FONT=Times New Roman, serif]UKPC are former clampers who have been involved in quite a number of sordid scams, for example[/FONT]

[FONT=Times New Roman, serif]Hull Trading Standards took them to court on 15 counts of fraud. UKPC won all but one, but only because they had a better lawyer, a Q.C. If I recall correctly[/FONT]

[FONT=Times New Roman, serif]http://forums.pepipoo.com/index.php?showtopic=63597[/FONT]

[FONT=Times New Roman, serif]They were bested by a Winchester barrister [/FONT]

[FONT=Times New Roman, serif]http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**[/FONT]

[FONT=Times New Roman, serif]They were involved in a large scale scam which resulted in a DVLA suspension[/FONT]

[FONT=Times New Roman, serif]http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html[/FONT]

[FONT=Times New Roman, serif]Then they had another go, this one is still being investigated[/FONT]

[FONT=Times New Roman, serif]https://forums.moneysavingexpert.com/discussion/5390608[/FONT]

[FONT=Times New Roman, serif]And then of course there was Tracey Kiss[/FONT]

[FONT=Times New Roman, serif]http://www.tracykiss.com/product-reviews/my-ukpc-parking-charge/[/FONT]

xpyd

Thanks so much guys!!! This has been immensely helpful!

This is stupid but I didn't realise that I would be able to search for more relevant posts, and have basically just been jumping from the links on Newbies to other suggested ones!

CM I am so grateful! Thank you for pretty much rewriting my appeal - It reads so much better now!!

I have made some changes to the parts that weren't applicable, and am currently working on the "The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability" - possibly the argument on not notified of discount, and on no period of parking specified - but not too sure on this.
Have to run to work now but will post sometime in the middle of the night after shift.

Thanks again so much guys!!

xpyd

I received 2 NOKs (the second after I didn't respond to the first - this was before I got on to the forum!), and am gonna try and and compare one (the first) to para 8 - Am i too soft, or those this NOK comply??

Re NOK

Parking charge date xxx
Ref no xxx
Veh Reg xxx

Your vehicle was recorded on our clients private property in breach of the following T&Cs of parking :

Parked for longer than the maximum period permitted
xxxxxx address on the 19/12/15 0716
[8(2)(a) - does this constitute the 'period of parking'? or the time of the parking charge??]

The driver of the above vehicle breached the T&Cs of parking which were clearly and prominently displayed on our car park signs. These T&Cs were agreed by the driver when your vehicle was parked on private land. A parking charge was issued to the driver at the time but this has not been paid. [8(2)(b)] [8(2)(c) - except that 82c states "and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f)" - can I then argue on 72b that it does not in detail "describe those charges, the circumstances in which the requirement arose"?] We therefore had reasonable cause to obtain your details as you were the Registered Keeper of the vehicle at the time of parking.

Subject to, and in accordance with, the provisions of Schedule 4 of the POFA 2012, the unpaid parking charge may be recovered from the hirer.

If, after a period of 28 days, (beginning with the day after this Notice is given), the amount requested in this Notice has not been paid in full (or we have not been informed of the drivers name and current address) you, [8(2)(e) - can I argue that this doesn't comply with 82e as it implies but does not specifically "state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper..."? ] the Registered Keeper, will, subject to the conditions of, and under the terms of, Schedule 4 of the Protection of Freedoms Act 2012, be liable to pay the unpaid Parking Charge. [8(2)(f)]

Parking charge summary
Parking charge amount £100
14 day early pay discount £0
[8(2)(g)]?

xpyd

Hey guys,

I have added in the No keeper liability argument and worked through the rest of the appeal to make sure everything is relevant, as best I can!
If anyone happens to be able to look through it and comment / advice before I submit it later today, I'm sure it would really help my chances!

Thank you!

---

Dear Assessor

I am the registered keeper and this is my appeal to a PCN which was issued to the vehicle when legitimately parked with a visitor's permit.

My appeal points are:

1) Ambiguous, unclear, and misleading signage.
2) No 'relevant obligation' nor 'relevant contract' under Schedule 4 of the POFA.
3) No Landowner authority/contract - a managing agent is not the landowner.
4) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
5) This case can be distinguished from Parking Eye v Beavis which does not apply.
6) I rely on the binding authority in Vine v Waltham Forest which was a Court of Appeal judgment, about a driver not seeing the terms and not deemed bound by them.



1) Ambiguous, unclear, and misleading signage

Since receiving the notice to keeper informing me that the vehicle had been “parked for longer than the maximum period permitted”, I have been to review the signs available in the car park to establish if this condition was made clear before parking.

I noted that the signs are located high up on the walls of the buildings in the car park, and the actual “terms and conditions” (T&C) are printed in font so small, that I, standing at a height of 5 foot 2 inches, found them impossible to read.

However, I established that although 5 T&Cs were named on the sign, none of them mentioned a maximum period of parking permitted.

I submit photographic evidence of the sign on Tower 4, the closest sign available to the visitors bay where I am told the driver had parked.

Therefore I was further confused and bewildered when UKPC rejected my initial appeal, stating that “vehicles are not permitted to park in visitors bays for over 8 hours in this car park”.

I returned yet again to the car park to clarify this issue, and noted that there were several signs located 7-8 feet up on lampposts around the car park. At that height, it was proving close to impossible for me to read the T&Cs printed on it.

However on close scrutiny, I noticed that the 5 T&Cs printed, were different to the initial sign that I had seen. On one of them, I was eventually able to make out an image of a clock, and the number 8 next to it. I have still not been able to fully read the T&Cs of the sign, and even attempts at taking photographs to assist this have been unsuccessful due to the height of the sign, rendering the photographs unclear.

As all the signs appear from a distance to be similar, there is no reason to suspect that the terms and conditions printed on each would differ. And in fact, this appears to be a deliberate attempt by UKPC to be deceptive and mislead visitors!




2) No 'relevant obligation' under Schedule 4

No promise was made by the driver to move the car after 8 hours because of the ambiguity of the sign.

There can be no keeper liability without a 'relevant obligation' giving rise to a requirement for a driver to pay parking charges. This requirement is defined in Schedule 4 as follows:

“relevant obligation” means—
(a)an obligation arising under the terms of a relevant contract; or
(b)an obligation arising, in any circumstances where there is no relevant contract, as a result of a trespass or other tort committed by parking the vehicle on the relevant land;

An 'obligation arising from a relevant contract' would be one where the terms are transparent, prominent and clearly communicated to the driver before parking. The driver was a visitor and did not know about any 8 hour restriction on visitor parking, and could not have known even from reading the signs, due to the misleading nature of the signs. Neither was this explained in the Notice to Keeper, but in the Notice of Rejection, far too late to be imported into any contract or retrospectively create any obligation.

A contract is formed in a car park only if terms are clear and accepted/known before parking. This cannot be found to be the case in a car park where the signs differ - not all mention anything about the 8 hours and ALL of them merely have the 'parking charge' in very small font if at all.

Schedule 4 is specifically dependent in paragraph 3 (below) upon 'adequate notice' of the parking charge being communicated to the driver in advance and this was not the case:

For the purposes of sub-paragraph (2) “adequate notice” means notice given by—

(b) ...the display of one or more notices which— (i) specify the sum as the charge for unauthorised parking; and

(ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land.

That would require clear and prominent signs throughout the site, carrying wording that is transparent and legible in low light, non-conflicting, and with the terms and 'charge' in large letters (in the Beavis case this was 96 point in bold font).




3) No Landowner authority/contract - a managing agent is not the landowner

As UKPC do not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract.

A site agreement with another non-landowning agent (such as a managing agent) is not proof of authority from the landowner.





4) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability

The requirements of Schedule 4 POFA are quite clear in that there must be strict compliance with all of its requirements in order to take advantage of the rights granted under that Act to pursue the registered keeper in respect of a driver’s alleged debt. The BPA Ltd AOS Code of Practice (version 5, October 2015) supports the need for strict compliance (para 21.5 refers). UKPC has however failed to comply with the statutory requirements as followed.

a) In regards to paragraph 8(2)(a) of Schedule 4, POFA 2012, the 'period of parking' is not 'specified', only the time and date the parking charge was issued. It does not specify the period of parking as demanded under POFA 2012 paragraph 8(2)(a) and paragraph 7(2)(a). In fact the observation time is not specified. The Notice does not state the period of parking, merely the time of the alleged contravention.

b) The Notice to Keeper does not, as per Paragraph 8(2)(c), state that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7(2)(b), (c) and (f), with 7(2)(b) requiring that it “describe(s) those charges, the circumstances in which the requirement arose”. The “breach” was alleged to be for “parking for longer than the maximum period permitted”, however it does not make clear to the keeper what the maximum period permitted was, and how the driver had (allegedly) exceeded this.

b) Paragraph 8(2)(e) requires that the Notice to Keeper must “state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—(i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver”. The Notice to Keeper clearly fails to comply with this requirement.

c) Paragraph 8 (2)(g) requires the operator to inform the keeper of any discount offered for prompt payment. The ‘Notice to Keeper’ fails to offer any discount and is therefore neither in compliance with the strict requirements of POFA nor with the BPA Ltd AOS Code of Practice (version 5, October 2015) paragraph 21.10.

UKPC have failed to comply and thus have not fulfilled all the requirements necessary under POFA to allow them to attempt recovery of any charge from the keeper.




5) This case can be distinguished from Parking Eye v Beavis. There is no commercial justification possible and the signs fail to meet the bar set in the Beavis case.

UKPC are quoting Parking Eye v Beavis, I do not understand how the result of this court case could possibly be related to UKPC's charge here. The only similarity is that they are both called a 'parking charge' but here, UKPC's charge is penal, unfair and unsupported by any compelling 'legitimate interest' beyond that of the parking firm's own profits alone - which renders it unenforceable.

Parking Eye had control of the car park to enforce a time limit and were expected by the landowner to ensure a regular turnover of parking for customers of retailers. The area of parking in question regarding this UKPC charge has no such time limit, no customers needing spaces in a busy car park and there is no 'turnover of bays' requirement. Signage is sparse, unlike in the Beavis case.

The signage communicating the £85 charge was found to be very 'prominent' in ParkingEye's case at the Supreme Court, unlike the signage in question here. ParkingEye were also able to show that the complex contractual arrangement in that specific car park was not an unenforceable penalty, only in that case, despite the Judges saying that the penalty rule was plainly 'engaged' in private parking charge cases.

The Supreme Court decision in ParkingEye v Beavis states that the contract is accepted by performance in a driver parking, reading signage and being clearly informed of terms and given a 'valuable' licence to park. Mr Beavis was considered to have read the 'very prominent' terms first which showed the parking charge 'in large lettering' and by the action of parking and leaving his car, he was found to have made a promise which constituted consideration and acceptance of terms. This decision does NOT simply transfer seamlessly to all other types of parking charges and car parks where no licence to park is offered or where no similar commercial 'legitimate interest' exists, without twisting the facts.

Parking charges in less 'complex' cases can very easily be found to be unenforceable penalties, as was discussed at length in the Beavis case;

LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees):

9. The distinction between a clause providing for a genuine pre-estimate of damages and a penalty clause has remained fundamental to the modern law, as it is currently understood. The question whether a damages clause is a penalty falls to be decided as a matter of construction, therefore as at the time that it is agreed…This is because it depends on the character of the provision, not on the circumstances in which it falls to be enforced.

14. …where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’

31. The real question when a contractual provision is challenged as a penalty is whether it is penal, not whether it is a pre-estimate of loss. These are not natural opposites or mutually exclusive categories. …The question whether it is enforceable should depend on whether the means by which the contracting party’s conduct is to be influenced are “unconscionable” or (which will usually amount to the same thing) “extravagant” by reference to some norm.

32. The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the innocent party in the enforcement of the primary obligation. The (operator) can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.



6) I rely on the binding authority in Vine v Waltham Forest CA [2000] about a driver not seeing the terms and not deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

link

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established.

The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking. There was never any suggestion that the plaintiff was other than a truthful witness and the clamping fee extorted from her under no lawful excuse was an act of trespass and the charge had to be refunded.

That case supports and upholds my appeal and it is a Court of Appeal judgment, binding on lower courts, which is far more relevant than the Beavis case in this instance where UKPC's interest is nothing beyond the basic aim to punish/fine any alleged defaulter, without making the terms clearly legible from a driver's seat before parking.

Where a parking charge is penal with no legitimate interest extending beyond claiming restitutionary damages, it cannot be saved by the Beavis case and the penalty rule remains firmly engaged. This charge must be deemed unenforceable and the PCN not properly given.

I therefore respectfully request that my appeal is upheld and the charge dismissed.

Yours faithfully

Umkomaas

Just a quick scan over it.

I would position 'NtK not compliant with PoFA' at point #1 and 'No Landowner Authority' at point #2. Unlike your opening signage point these two are less open to Assessor interpretation. Kill it off at the earliest point and save the Assessor having to wade through any more than they need to.

Make the Assessor your 'friend', not the PPC's!

Redx

as above ^^^^^^^^^^^^^^^^ , but otherwise looks good to me

Coupon-mad

I have edited my suggested point #5 a bit, so replace yours with the version I've edited in my post above.