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Urgent help with POPLA appeal draft
butteredparsnips
Posts: 6 Forumite
Hi all,
Would really appreciate some help with my POPLA appeal as have discovered that today is my last day for appeal...
Background:
- driver stayed for half an hour in a p&d private carpark
- driver could not pay with coins as the p&d machine was faulty, and both covered and taped up
- driver saw no other signage about alternative method of payment (I believe that phone & pay signs have been added since the incident date)
- keeper received PCN from Civil Enforcement Ltd, reason "Payment not made in accordance with terms displayed on signage"
- keeper appealed to CEL unfortunately using template letter from CAB...before discovering these forums...
-appeal from PCN rejected stating "the signage in the car park clearly states that in the event that the payment machines are unavailable, the parking charges still apply and our 'phone and pay' service should be used."
Am now trying to put together appeal to POPLA but getting a little confused, and wondering if anybody would be able to help with my draft so far? Thank you!
Grounds of appeal:
1) Civil Enforcement Limited has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
3) No contract could have been formed
3a) Frustration of contract
4) The amount is a penalty not saved by ParkingEye v Beavis
Appeal re POPLA code: xxxxxxxxxx
I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.
I contend that I am not liable for this parking charge on the basis of the below points:
1) Civil Enforcement Limited has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.!
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: ‘7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.’
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
Civil Enforcement Limited have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge.
I do not believe that the contract allows Civil Enforcement Ltd to charge paying visitors £100 for a Pay and Display machine being faulty. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.!
2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
There were no prominent signs throughout the site on the material date indicating the ‘Phone and Pay’ service as an alternative to the faulty Pay & Display machine, and the tariff signage contains texts so small as to be unintelligible. I put CEL to strict proof otherwise. As well as a site map and installation records of the ‘Phone and Pay’ signs, they must also show photographs of the signs as the driver would see them on entering the car park and how they appeared on that date, at that time, from the angle of the driver’s perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
3) No contract could have been formed
No contract could have been formed as consideration was not accepted by the parking company. Their Pay & Display machine was faulty, meaning payment could not be made. CEL claim “the signage in the car park clearly states that in the event that the payment machines are unavailable, the parking charges still apply and our ‘Phone and Pay’ service should be used.” However, a Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. As the driver did not notice any such signs; there was no consideration/acceptance and no contract agreed between the parties.
3a) Frustration of contract
Even if a contract was formed, which is impossible under trite contract law that POPLA must be aware of, the contract was frustrated because the claimant’s machine was broken. The alleged contract, created by the Claimant’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it became impossible for me to insert coins into the machine through no fault of mine, and over which I had no control. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.
4) The amount is a penalty not saved by ParkingEye v Beavis
This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.
This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgement.
This charge is for an alleged breach of contract and therefore it must show to be socially or commercially justified, that Civil Enforcement Ltd who are the non-land-owning third party can claim a sum in excess of any damages.!
Unlike in Beavis, it is argued that this charge has been artificially inflated and CEL have failed to disengage the 'penalty rule' by virtue of a want of good faith and also a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry’s Code of Practice. £100 is hugely disproportionate to any alleged unpaid tariff!and there is no commercial justification as the landholder has no incentive to maintain turnover of spaces at that location. As such it is an unenforceable penalty. Once again Beavis cannot apply in this location.!
The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment.!
AND any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis case was based on the use of that particular car park which was free and the charge should also be disregarded as the judgment simply reaffirms that the decision is 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.
Would really appreciate some help with my POPLA appeal as have discovered that today is my last day for appeal...
Background:
- driver stayed for half an hour in a p&d private carpark
- driver could not pay with coins as the p&d machine was faulty, and both covered and taped up
- driver saw no other signage about alternative method of payment (I believe that phone & pay signs have been added since the incident date)
- keeper received PCN from Civil Enforcement Ltd, reason "Payment not made in accordance with terms displayed on signage"
- keeper appealed to CEL unfortunately using template letter from CAB...before discovering these forums...
-appeal from PCN rejected stating "the signage in the car park clearly states that in the event that the payment machines are unavailable, the parking charges still apply and our 'phone and pay' service should be used."
Am now trying to put together appeal to POPLA but getting a little confused, and wondering if anybody would be able to help with my draft so far? Thank you!
Grounds of appeal:
1) Civil Enforcement Limited has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
3) No contract could have been formed
3a) Frustration of contract
4) The amount is a penalty not saved by ParkingEye v Beavis
Appeal re POPLA code: xxxxxxxxxx
I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.
I contend that I am not liable for this parking charge on the basis of the below points:
1) Civil Enforcement Limited has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.
As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.
Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.!
Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).
Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: ‘7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.’
7.3 The written authorisation must also set out:
a) the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined.
b) any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation.
c) any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement.
d) who has the responsibility for putting up and maintaining signs.
e) the definition of the services provided by each party to the agreement.
Civil Enforcement Limited have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge.
I do not believe that the contract allows Civil Enforcement Ltd to charge paying visitors £100 for a Pay and Display machine being faulty. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.!
2) The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself
There were no prominent signs throughout the site on the material date indicating the ‘Phone and Pay’ service as an alternative to the faulty Pay & Display machine, and the tariff signage contains texts so small as to be unintelligible. I put CEL to strict proof otherwise. As well as a site map and installation records of the ‘Phone and Pay’ signs, they must also show photographs of the signs as the driver would see them on entering the car park and how they appeared on that date, at that time, from the angle of the driver’s perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.
3) No contract could have been formed
No contract could have been formed as consideration was not accepted by the parking company. Their Pay & Display machine was faulty, meaning payment could not be made. CEL claim “the signage in the car park clearly states that in the event that the payment machines are unavailable, the parking charges still apply and our ‘Phone and Pay’ service should be used.” However, a Notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms. As the driver did not notice any such signs; there was no consideration/acceptance and no contract agreed between the parties.
3a) Frustration of contract
Even if a contract was formed, which is impossible under trite contract law that POPLA must be aware of, the contract was frustrated because the claimant’s machine was broken. The alleged contract, created by the Claimant’s signage, is voidable under the Law Reform (Frustrated Contracts) Act 1943, and as held in Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126, for the reason that it became impossible for me to insert coins into the machine through no fault of mine, and over which I had no control. In the alternative, in Jolley v Carmel Ltd [2000] 2 EGLR 154, it was held that a party who makes ‘reasonable endeavours’ to comply with contractual terms, should not be penalised for breach when unable to fully comply with the terms.
4) The amount is a penalty not saved by ParkingEye v Beavis
This was no agreed contract and the sum is unfair, unreasonable and unrecoverable.
This case is an unfair penalty and differs from the 'Beavis v Parking Eye' judgement.
This charge is for an alleged breach of contract and therefore it must show to be socially or commercially justified, that Civil Enforcement Ltd who are the non-land-owning third party can claim a sum in excess of any damages.!
Unlike in Beavis, it is argued that this charge has been artificially inflated and CEL have failed to disengage the 'penalty rule' by virtue of a want of good faith and also a failure in their duty to deal fairly with consumers and a failure to follow the requirements of their industry’s Code of Practice. £100 is hugely disproportionate to any alleged unpaid tariff!and there is no commercial justification as the landholder has no incentive to maintain turnover of spaces at that location. As such it is an unenforceable penalty. Once again Beavis cannot apply in this location.!
The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment.!
AND any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis case was based on the use of that particular car park which was free and the charge should also be disregarded as the judgment simply reaffirms that the decision is 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.
0
Comments
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Do you have your own pics of signs? You need to show the PoPLA assesor how they fail to meet the BPA CoP, and how they differ from the Beavis signs.
Your signage appeal point is far too short. Use the one from the link provided in post 3 of the NEWBIES thread. You may find other template appeal points as well that you can use.I married my cousin. I had to...I don't have a sister.
All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Thanks for the reply, I have this pic of the sign - it is the one I remember seeing, but from a recent newspaper article about the carpark, not one I have taken myself
i1380.photobucket.com/albums/ah175/butteredparsnips/imgID66692823_zpslaguu6cm.jpg0 -
butteredparsnips wrote: »Thanks for the reply, I have this pic of the sign - it is the one I remember seeing, but from a recent newspaper article about the carpark, not one I have taken myself
i1380.photobucket.com/albums/ah175/butteredparsnips/imgID66692823_zpslaguu6cm.jpg
http://i1380.photobucket.com/albums/ah175/butteredparsnips/imgID66692823_zpslaguu6cm.jpgI married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Inadequate signage will be a winner then. You can barely make out the £100 charge as the font is so tiny.
Cut and paste the long signage template point form the NEWBIES. This includes the Beavis signs as well, although it's better to embed the images rather than use links. You want to make sure the assessor sees them.I married my cousin. I had to...I don't have a sister.All my screwdrivers are cordless."You're Safety Is My Primary Concern Dear" - Laks0 -
Yep - embed that image into the 'unclear signs' template point and add some lines to explain the image, even a link to the newspaper article as well if it is damning about this location and parking operator. Don't say who was driving/saw or didn't see that sign, don't tell the story of parking.
I would still use 'no keeper liability' as an appeal point even though you used a dodgy CAB template appeal, because CEL don't use the POFA and it's up to them to evidence you were driving - and POPLA might decide your appeal didn't show who was driving (or CEL might not contest a longer appeal, or even show the appeal you made as evidence). So bung it ALL in anyway and write as the keeper.
I doubt it. POPLA codes last online for 31 days odd, not 28, and certainly will still work over the entire weekend if Thursday is day 28. Don't rush this if today is only day 28.have discovered that today is my last day for appeal...PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you Fruitcake & Coupon-mad, I really appreciate the feedback
I have embedded side-by-side pics of Beavis sign and the one from the carpark into the unclear signage template section.
I have also added in no keeper liability as Point 5, based on the fact that PCN was issued 16 days after incident date.
Is the wording for point 3 about there being no contract ok? I have changed wording in point 3a) from 'me', 'my' etc to 'the driver'.
Thanks0 -
Looks good to go. Submit it under OTHER (only) on the POPLA website, uploading it as a PDF.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thanks Coupon-mad. That's good to hear Just one more question!
Should I add a line into the unclear signage point, specifically about the lack of visibility of signs indicating ‘Phone and Pay’ service as an alternative to the faulty Pay & Display machine? Just wondering if I should address this directly as it is what CEL specified as their reason for rejecting initial appeal? Or is it best to leave the template point as it is? Thank you0 -
Yes you could, as long as this doesn't imply who was driving.
I would also add the template point from post #3 of the NEWBIES thread, the one that says the appellant keeper has not been shown to be the individual liable (driver). Make it even longer, which encourages a PPC to cancel.PRIVATE 'PCN'? DON'T PAY BUT DON'T IGNORE IT (except N.Ireland).
CLICK at the top or bottom of any page where it says:
Home»Motoring»Parking Tickets Fines & Parking - read the NEWBIES THREAD0 -
Thank you! Added in additional point and have submitted - 8 pages in the end!0
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