Euro Car Parks POPLA appeal

Aggy78

hi all,
I parked at one of ECP in Manchester, paid £5.50 but was 44 minutes late.
Have already appealed to ECP claiming i wasn't the driver just the keeper but it was refused.
Now got a POPLA code and honestly have no idea where to start. Been reading all morning and would appreciate some help:)

the only thing i've noticed that may be of interest is that the idiots got confused with times on my rejection letter saying "your vehicle entered at 16:09 and exited at 20:56 a total stay of 3hrs 44min" (i paid for 4 hr stay).
Also the photos they provided are of my plates only.

i can't post links I'm afraid so I'll try to answer any other questions as they come.

any ideas are more than welcomed:)

Carthesis

Doubt you'll get anywhere at POPLA with either of those.

Was there no facility to "top up" your parking or pay for extra time in any other way?

Have you rigorously compared the postal NTK you got with POFA2012 Schedule 4 Paragraph 9 for any omissions?

Did you get a windscreen ticket followed by a postal notice, or just the postal notice?

In either case above, have ECP complied with the mandatory timescales for delivery of the postal notice?

If you got a windscreen ticket followed by a postal notice, when did the postal notice arrive? It shouldn't have been even generated until AT LEAST 28 days after the parking event, and needs to arrive within 56 days.

Aggy78

I honestly don't know if thete was an option of topping up, I'll go and have a look today.
I got A PCN posted to me on 19/10/16 (I parked on 12/10/16), no windscreen ticket.
I checked and there were no omissions i'm afraid.

Carthesis

Having never seen an ECP PCN, I've no idea how true that is.

Most PPCs don't have particularly good notices, hence it is normally a decent argument.

There is a series of POPLA appeal point templates linked from the Newbies thread. Start to draft an appeal then post it for comment.

Aggy78

[FONT=&quot]I am the registered keeper and I wish to appeal a recent parking charge from Euro Car Parks. The charge is levied despite the driver declining the parking contract offer by leaving the site. I submit the points below to show that I am not liable for the parking charge:

1)No genuine pre-estimate of loss – case can be differentiated from ParkingEye-v-Beavis
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) No standing or authority to pursue charges nor form contracts with drivers.
4) The ANPR system is neither reliable nor accurate
5) The charge of £100 plus £1.50 for card payment exceeds the appropriate amount specified in law

[/FONT]
[FONT=&quot]1) No genuine pre-estimate of loss[/FONT][FONT=&quot] – case can be differentiated from ParkingEye-v-Beavis
This car park is Pay and Display and as far as I can ascertain as keeper, a payment may have been made. Having received the Notice in the post I had very little information (see point #2) so went and checked the signage and it seems that additional 2 hours of parking would have cost £3.50 so the only recoverable sum under the POFA 2012 is the sum of the alleged 'outstanding' parking charge = £3.50 at the most. Euro Car Parks have not told me these details, despite it being a prerequisite of Schedule 4 (see Point #2).

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 to be the same whether the alleged overstay is 20 minutes or 20 hours.

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 abut GPEOL in the POPLA 2014 Report and would also falls foul of the DFT Guidance about private parking charges.

In this case, even if the Operator contends there was a small outstanding P&D sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

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.[/FONT]
[FONT=&quot]''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.''[/FONT][FONT=&quot]

The Operator may seek to rely on the case of Parking Eye v Beavis as legitimising the charge in this case. The appellant will make the following observations. The Supreme Court adjudged that the charge in Parking Eye v Beavis could not be considered a penalty , despite the fact Parking Eye made no loss, because they had a legitimate interest in enforcing that charge and that the charge was not disproportionate to that interest. The legitimate interest was described in the Supreme Court judgment as :

“97
a. The need to provide parking spaces for their commercial tenants’ prospective customers; -

b. The desirability of that parking being free so as to attract customers;

c. The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;

d. The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and

e. The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.”

In this case the vehicle would have been fully entitled to park as it did had payment been made ( provided the requirement to do so had been clearly brought to the motorist's attention) The above justifications are irrelevant and conspicuously absent. The only interest the Operator has in enforcing the charge is ensuring payment is made. That is not a legitimate interest. The car park is no different to any commercial enterprise .The Operator cannot argue that a legitimate interest is simply ensuring that payment is made , i.e. simply ensuring the terms of the contract are not breached. If that was the situation any contractual term requiring payment for breach could never automatically be a penalty, in other words the need for another legitimate interest is unnecessary. In addition the charge demanded for breach is clearly disproportionate to the unpaid parking tariff of a few pounds. The charge is clearly a penalty following the judgment of the Supreme Court.

This position is reinforced in the earlier judgment from the Court of Appeal in Parking Eye v Beavis . The judgment states :

"43. It is clear that the purpose of the £85 parking charge is to deter those who use the car
park from overstaying beyond the free permitted two hours. So, Mr Hossain
submitted, the case is clear and the parking charge provision is unenforceable.
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 by one party
or the other. Sometimes such measurement is difficult because of inherent
uncertainties, and in those an agreed liquidated damages provision may be upheld for
those reasons. But, however difficult it may be to measure, it is clear that there are
economic and commercial effects on the parties.
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. The operator affords the driver a free facility. That facility is, of course,
of economic value to the driver, as well as of convenience, in assisting the driver to
visit the shops in the shopping centre which the car park serves. It is thus useful to
Judgment Approved by the court for handing down. ParkingEye -v- Beavis
the driver, being close to the shops, and free. It is also useful to the shopkeepers, in
encouraging visitors, and in particular in encouraging a turnover of visitors because of
the two hour limit. A car owner cannot simply come to the car park and park there all
day. To do that would be to clog up the facility and to prevent those arriving later
from using the park for its intended purpose.
46. The terms of use of the car park need, therefore, to provide a disincentive to drivers
which will make them tend to comply with the two hour limit. That is afforded by the
parking charge of £85. It would not be afforded by a system of imposing a rate per
hour according to the time overstayed, unless that rate were also substantial, and well
above what might be regarded as a market rate for the elapsed time, even if the market
rate were in some way adjusted to take account of the benefit to the driver of the first
two hours being free.
47. It seems to me 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, merely on the basis that the contractual provision is a disincentive, or deterrent,
against overstaying. 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 to the innocent party, 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.”


This judgment makes clear that the Court of Appeal would also consider the charge in this case a clear penalty. The purported contract with the motorist is a clear consumer financial contract where the loss is easily calculable unlike in Parking Eye v Beavis. There is clear financial interaction between the operator and motorist .There is no commercially or socially justifiable deterrent value in the charge as the vehicle would have been fully entitled to park in return for payment of a small parking tariff (had the requirement to do so clearly been advertised) and the contractual term is clearly the attempt to impose payment of a large sum in consequence of the non payment of a very small sum. Any real loss can only be the small parking tariff and it is only that to which the landowner , not the Operator , may be entitled. The demanded charge is , without intellectual dishonesty, a clearly unenforceable penalty .


2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
I content that the Notice to Keeper is not compliant with the POFA 2012 as The Notice to Keeper does not state the amount that should have been paid

As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed over a certain amount of time and that the contravention was a failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event. This Operator is required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.

These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'

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.

3) No standing or authority to pursue charges nor form contracts with drivers [/FONT]
[FONT=&quot]
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, Euro Car Parks 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 Euro Car Parks to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between Euro Car Parks 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 Euro Car Parks.


[/FONT]
[FONT=&quot]4) The ANPR system is neither reliable nor accurate.[/FONT][FONT=&quot]

Euro Car Parks’ evidence shows no parking time, merely photos of car plates and the times are added manually, It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

The BPA's view is: 'As with all new technology, there are issues associated with its use:
Some ‘drive in/drive out’ motorists that have activated the system receive a charge certificate even though they have not parked or taken a ticket. Reputable operators tend not to uphold charge certificates issued in this manner...'[/FONT]

[FONT=&quot]6) The charge of £100 plus £1.50 for card payment exceeds the appropriate amount specified in law[/FONT][FONT=&quot]

Euro Car Parks' NTK informs me that any card payment costs an extra £1.50. Arbitrary extra charges are banned under the POFA 2012, the Consumer Contracts(Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.
POFA 2012 states:
Right to claim unpaid parking charges from keeper of vehicle:4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

Euro Car Park’s described no 'specified' charges which 'remained unpaid' as at 'a date no later than the end of the day before the day on which the notice was sent by post'. No amount was stated as being 'unpaid' by the driver. There was no means to pay and the car park was free, so the driver could not have paid nor be aware of any sum owing before the PCN was issued. It follows, therefore, that as the maximum sum recoverable under Schedule 4 is not specified in the NTK, that sum must be zero.

The CC(ICAP) 2013 Regs state:
Additional payments under a contract
(40).—(1) ''Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent.''

There was no 'express consent'.

The Consumer Rights (Payment Surcharges) Regs prohibit excessive charges:

(4).A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.
£1.50 is not a true cost for accepting a payment by credit or debit card. The cost is much lower and differs based upon the amount paid (£60 or £100 should attract different card payment charges) and differs for debit cards compared to credit cards:

''Banks charge various fees depending on factors like the degree to which you may be subject to credit card fraud and the overall value of card transactions. Expect different charges for debit and credit cards. You will pay a monthly fee to rent the payment terminal. You will also pay a charge for each transaction - this will be anything from a few pence to 6% of each transaction.''


This concludes my POPLA appeal.

Yours faithfully,[/FONT]

Carthesis

Sadly - whileever it might be true - the GPEOL argument will get you nowhere

Coupon-mad

Aggy78 wrote: »

I honestly don't know if thete was an option of topping up, I'll go and have a look today.
I got A PCN posted to me on 19/10/16 (I parked on 12/10/16), no windscreen ticket.
I checked and there were no omissions i'm afraid.

Why don't you copy a recent Euro Car Parks winning POPLA appeal, not an old one? That is old, so don't submit that. I think there was one won this week (ECP threw in the towel).

Or just use the new POPLA appeal templates in post #3 of the NEWBIES thread, it's why they are there and already lots of people have used them, built an appeal in minutes and won within weeks.

Coupon-mad

Here's a longer one which just won - scared ECP off:

http://forums.moneysavingexpert.com/showthread.php?t=5553258

HTH