FlashPark ticket

Coupon-mad

In your headings you have missed off point #6 and you have called #5. 'No genuine pre-estimate of loss' which needs changing to match the real heading.

Earlier you said:

The car park doesnt actually have a meter, it is for customers and permit holders only. But on the actual PCN just states it is a "permit holders only car park" but in reality customers park free.

and

Just worried that in the letter they are stating that the car park is permit holders only when in fact it is a majestic wine car park. So is also for customers of the shop but this is not stated, can i mention this point somehow, or should i leave it

So I think you should have an extra appeal point (near the top, I'd suggest make it point #3 and move the rest down):


3. This is a Majestic Wine customer car park (free) not a "permit holders only car park"

Then elucidate, putting Flashpark to strict proof of an actual permit scheme being in operation. Not just signs and a PCN mentioning this imaginary contravention.

Your point #5 needs some alterations as it talks about an 'error' and 'forgetting an admin task' (because it was written from the point of view of a permit holder forgetting to display). That's not the case here because you are saying it is a free car park with no permits needed for customers (you do not have to say whether the driver was a customer...). At the moment that point doesn't make sense so scrap or re-write #5 to suit.

rox

[FONT=&quot][FONT=&quot][FONT=&quot]Ok excelle[FONT=&quot]nt, thanks for your help have redrafted the le[FONT=&quot]tter and all set to upload onto [FONT=&quot]POPLA's website;[/FONT][/FONT][/FONT][/FONT]
[/FONT]
Dear Sir or Madam,

Ticket number: xxxxx

Vehicle registration number: xxxxx

POPLA appeal code XXXXXX

I write to lodge my appeal to POPLA regarding the above-detailed Parking Charge Notice issued to me by Flashpark as a Notice to Keeper in respect of an alleged breach of parking terms and conditions at “place” on "day" "month" 2016. I confirm that I am the vehicle’s keeper for the purposes of the corresponding definition under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

When I initially raised my dispute with Flashpark, I took great care to explain why it had no valid claim and I was therefore very disappointed to receive from Flashpark a rejection letter that was very clearly a standard template.

I set out below the principal reasons why I am not liable for this parking charge”.
[/FONT][FONT=&quot]On the “date” I received a PCN in the post for an alleged contravention with a contravention date of “date”. The vehicle in question is described as parking in an area for permit holders only without a permit displayed.

The date of the PCN was labelled as “date” with an outstanding amount of £85 which would be reduced to £55 if it was paid within 14 days.

[/FONT][FONT=&quot]I submit the points below to show that I am not liable for the parking charge:[/FONT]
[FONT=&quot]
1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability[/FONT]

[FONT=&quot]2. Any discounts for paying within 14 days should be at least 40%

[/FONT]3. This is a Majestic Wine customer car park (free) not a "permit holders only car park"[FONT=&quot]

[/FONT] [FONT=&quot][FONT=&quot]4[/FONT]. No standing or authority to pursue charges nor form contracts with drivers

[FONT=&quot]5[/FONT]. The signage was not readable so there was no valid contract formed between Flashpark and the driver[/FONT][FONT=&quot] - Unreasonable and unfair terms – no contract agreed to pay £85.

[/FONT][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot]6. C[/FONT]ase can be distinguished from ParkingEye v Beavis
[/FONT][/FONT][/FONT]
[FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot]7[/FONT]. Inadequate accuracy of ANPR camera[/FONT][/FONT][/FONT] [/FONT][FONT=&quot]

[/FONT][FONT=&quot]1. The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability[/FONT][FONT=&quot]

As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore there can be no keeper liability and as a result I request that Flashpark provide evidence to POPLA of who the driver was.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.[/FONT][FONT=&quot]

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

2. [/FONT][FONT=&quot]Any discounts for paying within 14 days should be at least 40%
[FONT=&quot]
[/FONT][FONT=&quot]The [FONT=&quot]o[FONT=&quot]riginal [FONT=&quot]PCN co[FONT=&quot]st [FONT=&quot]is £85 with a reduction [FONT=&quot]to £55 if paid within 14 days this [/FONT][/FONT][/FONT][/FONT][/FONT][/FONT][/FONT]should be at least 40% of the full charge under the British Parking Association (BPA) Code of Practice.[/FONT]Schedule 4 paragraph 7 of the PoFA stipulates the mandatory set of information that must be included on the parking ticket. If all of this information is not present then the Notice to Driver is invalid and the condition set out in paragraph 6 of Schedule 4 has not been complied with. Failure to comply with paragraph 6 means that the registered keeper cannot be held to account for the alleged debt of the driver.

The charge was 'not properly given' in view of a very clear breach of basic charge amounts set out by the BPA. Compliance with this Code was considered to be 'a form of regulation' in ParkingEye v Beavis.
[FONT=&quot]
[/FONT]
[FONT=&quot]3. This is a Majestic Wine customer car park (free) not a "permit holders only car park"
[FONT=&quot][FONT=&quot]
[/FONT][/FONT][/FONT][FONT=&quot][FONT=&quot][FONT=&quot][FONT=&quot]This is a Majestic Wine customer car park (free) not a "permit holders only car park" [FONT=&quot]I put it to [/FONT][/FONT]Flashpark to show strict proof of an actual permit scheme being in operation. Not just signs and a PCN mentioning this imaginary contravention. [/FONT][/FONT][FONT=&quot][/FONT]

[FONT=&quot]4[/FONT]. 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, Flashpark 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. I therefore put Flashpark to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Flashpark 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 Flashpark.

[FONT=&quot]5.[/FONT] The signage was not readable so there was no valid contract formed between Flashpark and the driver
The only signs are up on poles and small, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. I believe that Flashpark place their signs so high that terms would only be legible if a driver got out of a car and climbed a stepladder, holding a torch, to try to read them. Any photos supplied by Flashpark to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the Flashpark signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require Flashpark to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photoshopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

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 this Operator's onerous 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.
[/FONT][FONT=&quot][FONT=&quot]
[FONT=&quot]6[/FONT]. [FONT=&quot]C[/FONT]ase can be distinguished from ParkingEye v Beavis

[/FONT] In its parking charge notice, Flashpark has failed to provide sufficient evidence to justify the £85 loss the landowner might have incurred for the alleged contravention.
The contract entered into between the driver and Flashpark is a simple consumer contract.

This makes plain that the sum of £85 being demanded is nothing other than a penalty clause designed to profit from inadvertent errors, and is consequently unenforceable.

As this is a simple contract, any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss.!

[FONT=&quot]Flashpark[FONT=&quot]'s [/FONT][/FONT]£85 PCN is quite clearly not a genuine pre estimate of their loss and is clearly extravagant and unconscionable. If Flashpark believe their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of this. Normal expenditure the company incurs to carry on their business should not be included in the breakdown of the costs, as these are part of the usual operational costs irrespective of any car being parked at that car park.

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.

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 ParkingEye 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.

[FONT=&quot]7[/FONT]. Inadequate accuracy of ANPR camera

Operator is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Flashpark to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

Furthermore, as described in the BPA Code of Practice under paragraph 21.1, “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner.Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.”

Additionally, expanding from point 2 above, Section 18.3 of the BPA Code of Practice states that any “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Considering the observations made in point 2 (Ambiguous, inadequate and non-compliant signage) above, I argue that Flashpark has failed to meet the minimum standards set out in sections 21.1 and 18.3 of the BPA Code of Practice. While the available sign advises that the “car park (is) monitored by ANPR systems”, it does not inform the motorist what it is using “the data captured by ANPR cameras” for, as required under Section 21.1 of the BPA Code of Practice nor is it therefore “easy to understand”, as required under Section 18.3 of the BPA Code of Practice.

It is respectfully requested that this parking charge notice appeal be allowed and the appeal should be upheld on every point.

Yours Failthfully

xxxx[/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]Thanks in advance [/FONT]
[FONT=&quot]
[/FONT]
[FONT=&quot]BR

[FONT=&quot]Think i have all the info in there.

[FONT=&quot]Thanks in advance

[FONT=&quot]BR[/FONT]
[/FONT][/FONT][/FONT]

Coupon-mad

where the signs are placed among a myriad of other information bombarding a customer.

Check things like the above - is this true, are there a 'myriad' of other signs bombarding customers? If so, then leave it of course! Just checking, as I know that was a template copy from an older one.

Re the landowner authority, I always recommend quoting BPA CoP 7.3 in full, like here:

https://forums.moneysavingexpert.com/discussion/comment/70936315#Comment_70936315



Oh, and to point #6 you can add this immediately before your final paragragh 'Any reliance on the Supreme Court judgment...'


What the Appeal Court said in ParkingEye v Beavis. This was not contradicted by the Supreme Court so this stands as part of that binding decision and sets pay and display car parks (simple contracts, defined by the sum of the tariff) as 'entirely different':

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with,...”.

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest the operator has in enforcing their (out of all proportion to the tariff) charge is profit alone.

This position is reinforced in the earlier findings in the Beavis case from the Court of Appeal, where the judgment states:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

The Consumer Rights Act 2015 shows this case law still holds because it includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed. This is the fundamental legislation relating to standard contracts between traders and consumers and it is undoubtedly applicable to this case.

The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before. The Beavis decision is not a silver bullet and is incapable of striking out appeals and superseding trite law relating to other parking charges with different facts and, in particular, a monetary tariff.



HTH

rox

Thanks coupon mad, will do all that and submit my appeal.

Appreciated once again!

JT2968

I received a PCN from flashpark on 1st July for parking in the car park of my local pub for approx 5 minutes. They want to charge me £85. I have read a lot of the posts on here but i am still confused. I have drafted a letter similar to one I found on this forum. Then i read something about not sending this letter until after the date i should have paid the fine. Please help? Thanks. J

Coupon-mad

JT2968 wrote: »

I received a PCN from flashpark on 1st July for parking in the car park of my local pub for approx 5 minutes. They want to charge me £85. I have read a lot of the posts on here but i am still confused. I have drafted a letter similar to one I found on this forum. Then i read something about not sending this letter until after the date i should have paid the fine. Please help? Thanks. J

It's not a fine and the 14 days means NOTHING to you because you are not paying it! Send the usual appeal from the NEWBIES thread like everyone else - day 25 or so - then start your own thread in due course in August to show us your POPLA appeal (which can be like the above, but CANNOT be on this thread which belongs to rox).

No need for any more posts about it here, this is easy. The NEWBIES thread covers it.

See you on a new thread of your own in a month, when you have got a POPLA code.