Premier Park Ltd - Exeter

Coupon-mad

No mention of Beavis in the Case Pack

Hmmmm...so the operator has failed to explain the basis of their charge and not even adduced Beavis. Their silence is interesting. Therefore you CAN and you should add something at the end, like:

'I have shown how the issue of 'prominent and clear signage' as held in the Beavis case can be applied in favour of my appeal point that the signs in THIS car park were unclear and not capable of creating a contract. By contrast, this operator is silent as regards the Beavis case because it works against them in the point of signs and in fact, the Beavis case completely wrecks any case they may have had, regarding 'trespass' for an unauthorised (not licensed like in Beavis) parking allegation.

The Beavis case was not about unloading on a yellow line, which is very relevant because the Supreme Court Judges, in fact, did have lot to say about the lack of any right to charge for trespass when the claimant is not the landowner.

This is only an allegation of trespass (not 'contract' arising from any licence given to park, but breached) because the operator is saying in the evidence pack that the vehicle was NOT authorised to be on double yellows at all.

The BPA CoP confirms it:

''18 Signs
18.1 A driver who uses your private car park with your
permission does so under a licence or contract with you.
If they park without your permission this will usually be
an act of trespass.''

Then quote more than one paragraph from the Beavis case about trespass where they say that PE were not the owners of the land so could not pursue anything under trespass because they occasioned no loss - it's been quoted on here a lot! Search, I can't, have no time!

Final question - should I include the 3 PDF Land Registry title files with my rebuttal?

If you wish - you will have to email your comments to POPLA. Ask for an assurance that they will be considered by the Assessor.

freester

Coupon-mad wrote: »

Hmmmm...so the operator has failed to explain the basis of their charge and not even adduced Beavis. Their silence is interesting. Therefore you CAN and you should add something at the end, like:

'I have shown how the issue of 'prominent and clear signage' as held in the Beavis case can be applied in favour of my appeal point that the signs in THIS car park were unclear and not capable of creating a contract. By contrast, this operator is silent as regards the Beavis case because it works against them in the point of signs and in fact, the Beavis case completely wrecks any case they may have had, regarding 'trespass' for an unauthorised (not licensed like in Beavis) parking allegation.

The Beavis case was not about unloading on a yellow line, which is very relevant because the Supreme Court Judges, in fact, did have lot to say about the lack of any right to charge for trespass when the claimant is not the landowner.

This is only an allegation of trespass (not 'contract' arising from any licence given to park, but breached) because the operator is saying in the evidence pack that the vehicle was NOT authorised to be on double yellows at all.

The BPA CoP confirms it:

''18 Signs
18.1 A driver who uses your private car park with your
permission does so under a licence or contract with you.
If they park without your permission this will usually be
an act of trespass.''

Then quote more than one paragraph from the Beavis case about trespass where they say that PE were not the owners of the land so could not pursue anything under trespass because they occasioned no loss - it's been quoted on here a lot! Search, I can't, have no time!

Superb. Thank you. Don't worry I'll do the search and find it (and post a link on here when I do).

If you wish - you will have to email your comments to POPLA. Ask for an assurance that they will be considered by the Assessor.

Oooh they don't make that easy... Just logged in assuming I could upload a PDF like the appeal but no. What email address? [EMAIL="info@popla.co.uk"]info@popla.co.uk[/EMAIL] ???

Coupon-mad

Yes just the same one they emailed you from.

Make sure the POPLA code is in the subject line and 'comments on the evidence pack, for the Assessor's consideration'.

Only include more attachments if you did not put them in with the appeal already.

This isn't a new appeal, you have to word it as comments on the evidence, relating it back to the evidence pages clearly. POPLA hardly read comments, it seems, so you have to stay on topic to pulling the PPC's own evidence apart - or pointing out omissions or the fact trespass cannot be 'charged' for, as the Supreme Court confirmed. Make sure you are not just reiterating your appeal.

freester

Coupon-mad wrote: »

Then quote more than one paragraph from the Beavis case about trespass where they say that PE were not the owners of the land so could not pursue anything under trespass because they occasioned no loss - it's been quoted on here a lot! Search, I can't, have no time!

Something like points 3 & 4 from post 186 here?


https://forums.moneysavingexpert.com/discussion/5015782

Coupon-mad

No, actually quote the Judges in the Supreme Court:

At 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;''

In that judgment, at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''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 [...parking company...] in the enforcement of the primary obligation. The [...parking 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.''

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

And quote the case numbers/date and give this Blog link, to show today's three cases where the defendants won at High Wycombe court in a case where there was no 'offer of a contract' (purely an allegation of unauthorised parking).

These cases prove that, even since the Beavis ruling, a private parking charge where there was no contract offered is not enforceable:

http://parking-prankster.blogspot.co.uk/2016/04/pcm-uk-signage-does-not-create-contract.html

B4GF26K6 PCM (UK) v Mr B (£914.67 claimed)
B4GF27K3 PCM (UK) v Mr W (£1559.82)
B4GF26K2 PCM (UK) v Ms L (£1067.15)

all 21.4.16 in the High Wycombe court. The Judge to the Beavis transcript, at paras. 94, and 189/190, which made it clear that it was agreed by all parties that there was a contract between PE and Beavis. He said that analysis didn’t apply in this case, as the notice was absolutely prohibitive, and didn’t communicate any offer of parking. The landowners may have a claim in trespass, but that wasn’t under consideration.

freester

Sorry for the delayed reply. Thanks for all of this. PDF submitted and acknowledged by POPLA. I tried to focus on rebutting everything in the case pack rather than raising any new points (if only I'd known what I do now when I originally submitted the appeal!). Hey ho, I'll update how it went when I hear.

freester

Well, my appeal failed.

Quick resume if you don't want to read the whole thread... Really bad POPLA appeal where I said what actually happened rather than following the recommendations on here.

Went to town on the response to the case file. Which appears the Adjudicator has taken no notice of at all judging from the decision rationale.

Decision
Unsuccessful

Assessor Name
Safoora Sagheer

Assessor summary of operator case
The operator’s case is that the vehicle registered under XXNN YYY failed to comply with the terms and conditions of the site by unauthorised parking on site.


Assessor summary of your case
The appellant’s case is that he arrived at the hotel and he was late meeting someone. He states he unloaded his bags and parked on double yellow lines.


Assessor supporting rational for decision
The operator has provided photographs of sufficient clear signage located throughout the car park which clearly states vehicles parking with a valid permit, ticket or written authority fully on display in the windscreen area. No exceptions. Park in a marked bay only where present. The signage also explains that failure to adhere to the terms and conditions will result in the operator issuing a Parking Charge Notice (PCN) to the value of £100. The British Parking Association Code of Practice mentions under section 18.3 “specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle”. I note the appellant states parked on double yellow lines whilst he was unloading his bags, however, this does not detract from the fact it remains the appellant’s responsibility to comply with the terms and conditions on site by ensuring he is parked within a marked bay rather than double yellow lines. After reviewing the operator’s evidence I can see the appellant parked on double yellow lines, double yellow lines mean no waiting at any time unless there are signs that specifically indicate restrictions. As such, the appellant has breached the terms and conditions of the site. I also note the appellant’s comments, however, the onus is with the appellant to comply with the terms and conditions of the site. As the appellant has failed to adhere with the terms and conditions of the site by unauthorised parking, I am satisfied that the PCN issued is valid. Accordingly, I must refuse the appeal.


What next? Complaint to POPLA or just ride it out and see if it goes to court?

freester

The more I think about this the more I believe the Case File was not even considered. There is no mention of anything I say in my response.

Today I logged onto the tracking section on the POPLA website. Advanced it and put in the comments box please see the attachment sent last week, and included the email. 2 hours later this judgement pops out. Mind made up without even looking at the case response as far as I can see. Grrrrrr.

freester

What do you think - before I send?


Dear Sir / Madam,

I wish to complain about the handling of POPLA appeal case xxxxxxxxxx.

I have read the rationale of the Assessor's decision. No reference at all has been made to comments I submitted via email to you on (day month year) in response to Premier Park Ltd's Case File.

I attach again the contents of the attachment submitted on (day month) along with an email from POPLA confirming that the file had been received and would be attached to my case.

I suspect that my response to the case file has been overlooked because

1) There is NO mention of my response comments in the decision rationale, just of the operators reply and my original appeal
2) The decision was made hours after I had 'advanced' the appeal on your online tracking tool and indicated my response had been forwarded by email.

Please can you confirm that the Assessor - Safoora Sagheer did receive and consider my responses in the case file.

If the assessor did - why no consideration of my comments in the decision rationale?

If assessor didn't see this file I insist that the appeal is reopened and reconsidered.

Yours faithfully

Umkomaas

Address it to Mr John Gallagher, Lead Adjudicator. With a 'Dear Mr Gallagher' salutation.