Popla - need to submit tonight - my reason seem simple but wanted to ask for advice

Doubledexx

Hi All,

I currently have 3 Penalty notices to appeal with POPLA. Deadline is tomorrow, so I'd like to get them done tonight. I was going to use the letter template kindly provided, but my case seems simple, so I wasn't sure I'd need to? I was just going to follow the prompts on the site.

Heres what happened..

On each occasion I parked in a railway station car park in Herts. I pay by phone and the payment lasts all day.

The tickets are all for 'Failing to display a valid ticket or voucher'. I've had about 7 of these tickets over the last few weeks. I've appealed them all with the parking operator - Indigo - under the grounds that I pay by phone, so there is no ticket to display (I have receipts to prove this). Usually they rescind the ticket, but on 3 occasions they have refused.

Indigo state that when the parking attendant checked their PDA, they couldn't locate my e-ticket. The tickets were issued around 9.30am. I've usually paid by 10.30am, but on one occasion it was 4.20pm. (There is no signage giving a time limit between arriving at the car park and paying for a days ticket)

To me, the case seems quite simple. I paid to use the car park and have receipts to prove it, so they have no case....however I'm concerned I may be being naive!

So I'm gratefully asking for any advice you have!

Also apologies for the urgency. I got my dates mixed up...thought I had another week.

Any help gratefully received!

Many thanks

Danny

pogofish

Don't bank on what actually happened as an appeal point. Most't PPCs simply don't give a fig as they just want your money.

You need to base your appeal on the solid/proven points detailed in the Newbies Sticky as well as any facts, which will still be the lesser appeal points!

Doubledexx

OK, thats what I thought initially...I was going to base it on the letter by salmosalaris, but it felt odd using the proven points in the sticky when they didn't necessarily apply to my case..does that make sense? My case seemed so simple that the other points didn't seem to fit in.....

Thanks for the speedy reply btw!

Ralph-y

no no no .....

appeal to POPLA with every point you can ....

even if it seam obtuse ......

it is up to the scammers to prove otherwise ......

signage
authority
and more

the new POPLA is fickle (politest word I could come up with) re appeals ...

going for a 1 point appeal is high risk...

good luck

Ralph:cool:

Redx

these are parking charge notices

there are no template appeals for popla on this site, never have been

there are examples of popla appeals you can use to draft your own appeal , these are based on several legal arguments, so use all of those arguments as long as they relate to the type of car park in question, and especially if the land is not relevant under POFA2012, as long as you have not given away the drivers details

post your proposed draft on here so it can be checked and any critique given in the replies to you (dont assume we know what you are writing or where you found it)

only use previous popla appeals from this year, 2016 , to draft your own appeals

use suitable search words like railway , Indigo etc in the FORUM SEARCH box to find recent examples

this recent one below yours that has already won can start you off

https://forums.moneysavingexpert.com/discussion/5399313

Umkomaas

You could do worse than read the following linked thread thoroughly and base your appeals on that in the link - it's just won at POPLA and it's a Railway Station car park.

https://forums.moneysavingexpert.com/discussion/5399313

But you need to check whether they are actually claiming this to be a Byelaw Penalty (I notice you use the word 'penalty' in your first post).

IMPORTANT - you must appeal each charge SEPARATELY; do not lump all three together under a single appeal. Make sure each appeal is cross-referenced with the discrete PCN number of each charge.

Doubledexx

Sorry, I meant 'an example to draft from, not a template.

Unfortunately, I've already mentioned in my initial appeal to Indigo that 'I came back to my car to find a ticket', so they are aware that I'm the driver.

Thanks for all your help everyone...really appreciate it.

I'll work up an appeal letter asap.

Umkomaas

Doubledexx wrote: »

Sorry, I meant 'an example to draft from, not a template.

Unfortunately, I've already mentioned in my initial appeal to Indigo that 'I came back to my car to find a ticket', so they are aware that I'm the driver.

Thanks for all your help everyone...really appreciate it.

I'll work up an appeal letter asap.

If they were the precise words used, how do they implicate you as the driver?

What if a friend or relative (or even I) was actually driving you in your car? They can draw no inference if the form of words were exactly as you describe above.

The_Deep

You need to base your appeal on the solid/proven points detailed in the Newbies Sticky as well as any facts, which will still be the lesser appeal points!


You certainly do not need to, it just depends on how you like to keep your trouses in place, belt. belt and braces, or belt, braces, and a piece of string. K.I.S.S.

Doubledexx

Hi all,

Here's my first draft. I've highlighted things I'm not sure whether to put in in italics.

To clarify: My wife is the reg keeper. The popla letter is addressed to me. I did say 'I came back to my car to find a ticket' so that doesn't directly implicate me. Should I appeal using my wife's name as reg keeper. We haven't received a NTK.

Here goes...thanks again for all your help everyone.

1.No Breach of Contract

The following is a summary of events

09.15 - Driver parks car
09.25 - Ticket is processed
18.00 - Paid for Parking (receipt attached)
23.00 - Return to car to find ticket.

The ticket stated Breach code 1: Failing to display a valid ticket or voucher.

There was no voucher to display because I paid by phone.

I therefore contend that the contravention did not occur and there was no breach of contract.

2. Lack of Authority

As Indigo do not have proprietary interest in the land , I demand 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. I do not believe they have such authority.

Indigo has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Indigo to strict proof of the contract terms with the actual landowner (not a lessee or agent). Indigo 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 licence to put signs up and 'ticket' vehicles on site, merely acting as agents. No evidence has been supplied lawfully showing that Indigo are entitled to pursue these charges in their own right.

To clarify I require Indigo to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that 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 a landowner) and may well be signed by a non-landholder such as another agent. 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 - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.
3. Railway Land Is Not ‘Relevant Land’

Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

4. Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis

The contract entered into between the driver and 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 Indigo believe that no payment was made (which is clearly incorrect as I have proof of payment ) 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 Indigo believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this.

This Operator cannot demonstrate any initial quantifiable loss. The parking 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.
The recent Beavis case was specifically based around getting maximum turnover of vehicles in an otherwise free car park. In a station car park, where you pay for the amount of time you stay, there is no need for vehicle turnover, no "promise to leave" after a certain time. The Supreme Court judges even made this exact point in the Beavis case. Therefore Beavis does not apply in this instance.

I would request that the POPLA adjudicator refer 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 my case where there was an economic transaction between Indigo and the motorist.

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 of 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.

5. Unfair term

The charge is quite clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable.
a. The charge of £100 is clearly grossly disproportionate to any purported loss which would only be a small parking tariff if no payment had been made at all, which evidence shows was not the case
The contract causes an imbalance in the rights and obligations of the parties to the detriment of the motorist.

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

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.”
6. The Registered Keeper is not liable

I am the registered keeper and Indigo do not have the identity of the driver.

As Indigo has failed to satisfy the requirements of Schedule 4 of the Protection of Freedoms Act I cannot be liable for the charge .

a.The unpaid parking charge that should have been requested ( paragraph 9(1) of the Act ) is that which was unpaid on the day before the Notice to Keeper was issued. This can only be the purportedly unpaid parking tariff and not £100 which had not been requested and which there was no facility to pay on the day before the Notice to Keeper was issued. Consequently £100 cannot be considered unpaid for the purposes of the Act. It clearly demonstrates that Indigo has failed to satisfy the requirements of the Act and cannot rely on it. At no time was the registered keeper asked to pay the purportedly unpaid tariff.

Indigo have failed to notify me why the parking charge is due as is required by the Act. The Act demands that the reason for the charge is made clear and again ParkingEye have failed to comply with the requirements of the Act and consequently cannot rely on its provisions.

7. The signage was not readable so there was no valid contract formed between Indigo and the driver

The only sign is on entrance to the car park. The size, positioning, size of font and colours used make it difficult to read and the terms and conditions are not clear. The third party telephone payment system does not communicate any terms and conditions. Therefore, if you pay for your parking by phone, there is nothing to clearly advise how any terms and conditions may be breached. To be clear, there is nothing to communicate full contractual terms & conditions.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about Indigo’s inflated 'parking charges' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

8.Other requirements

As a third party payment system is operational at this location, any landowner contract and supplementary site specific user manual, must also provide evidence that this company has a contract with the landowner permitting the following:
a) payments by this system
b) Indigo have a contractual agreement with the pay by phone company granting this consent for use at this location.
c) No DPA rights have been contravened as a consequence of using such a system
d) Full planning consent is in force for the ANPR use and signage at the location.

The driver on the date in question made payment using a third party pay by phone provider and therefore it is deemed that Indigo do not have any right to recover any charges, as revenue from the tariffs typically go directly to the landowner and payment was made to a separate trading entity.

These valid points aside; I conclude by returning to the initial argument for which there is clear supporting evidence: That in all good faith I paid for my parking stay on the 22nd March 2016.

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

Coupon-mad

You do have longer you know; it is easily OK to submit this over the weekend, as POPLA codes stay valid 5 days or so longer. Honestly.

Don't have these words in your appeal 'Not a genuine pre estimate of loss'.

Do look at more recent examples from this week, rather than that now a bit old one Salmosalaris and myself came up with. Find more recent ones by searching the forum for 'POPLA 7.3 Greenslade'.

You should indeed have a point that no contract was breached for the reasons you state - that there is no time limit on the sign as drafted (cite the doctrine of contra proferentem - so search the forum for that).

State that the ticket wrongly stated 'Breach code 1: Failing to display a valid ticket or voucher' which cannot corectly describe a contravention in this car park, where pay-by-phone is allowed and no 'display' of any voucher is needed. Describing the parking event facts is the burden of the operator under the POFA 2012 (quote paragraph 6 and 8 about NTDs and about the NTK you never received).

State that the payment was made whilst the car was parked that day, not afterwards nor even 'too late' according to any sign. Show proof of payment and again just say 'we' or that you were an occupant of the car if the proof of payment obviously shows your name.

Call yourself the 'keeper' (not the driver nor the registered keeper). Do this in your name and you must continue in the honest vein that you were an occupant of the car but the driver has never been admitted nor evidenced by the operator.

Then you can have 'no keeper liability due to no NTK' as another appeal point. This needs drumming hime to POPLA but you will find examples in the threads you find when you search for the keywords 'POPLA 7.3 Greenslade'.

Add 7.3 (quoted a - e ) to your signage point.

Get rid of this which almost drops you in it as driver!

The following is a summary of events

09.15 - Driver parks car
09.25 - Ticket is processed
18.00 - Paid for Parking (receipt attached)
23.00 - Return to car to find ticket.

Get rid of this for obvious reasons:

There was no voucher to display because I paid by phone.

So, can we see the draft again and please - AFTER you have read this month's new versions of POPLA appeals. Have in mind to submit this on Monday, after the weekend. The code will still work several days after the 28.