MET Parking Appeal rejected.

Johnrey

Hi,

I!!!8217;ve read the newbies thread but feel my circumstances actually are somewhat different.

I!!!8217;ve received two NTK!!!8217;s from MET parking regarding two separate instances both for parking on a double yellow line within a BP petrol station at Stansted airport.

Two postal NTKs by ANPR Cameras.

I received one a few weeks before the other, appealed that one with the template provided on the newbies thread and then much to my shock I received a second one on a separate instance and have done the same however the first appeal had been rejected so I can only assume the second one also will.

Here!!!8217;s some of the things that have me a little bit stuck.

The second !!!8220;incident!!!8221; occurred before the date of issue for the first NTK Is that an arguable point to have one of the fines cancelled? (ill put the dates below my next point)

Also Both NTKs seem to be non compliant? By my understanding they have to issue a NTK within 14 days of the date of contravention? But they still declined the appeal? See dates below:

NTK no 1
date of contravention: 21st of June
Date of issue of this notice: 25th of July

NTK no 2
Date of contravention: 4th July
Date of issue of this notice: 3rd August

So by the time Of the second incident an NTK for the first incident had not even been issued.


Is a double yellow line even enforceable on private land?

I!!!8217;d argue that the terms and conditions especially around the yellow lines aren!!!8217;t exactly made obvious upon entry, maybe somebody observant would notice the maximum stay t&c!!!8217;s on the signs but I don!!!8217;t think the others are exactly eye catching on their signs (will try to attach photos of the signs).

Also they!!!8217;ve only just this week (14th aug) now taken measures of putting cones out on the yellow lines to phsycally stop people from parking there.

Also have pictures of the police parked In the exact same spot as me, not on police business just there to get their lunch. Although this is more for a comical aspect, doubt that they aren!!!8217;t exempt from anything like that.

Can anybody shed some light? Do I just move forward to the POPLA stage? Does anyone have any advise on getting the NTKs waivered if they aren!!!8217;t compliant?


Would much appreciate the help, also if anyone knows any similar threads I could look at this would be much appreciated.


Will try and find a way of attaching pictures of their signs

Redx

they are not "fines" and they are not "offences" either

the pictures are of the vehicle , not the person, so the DRIVER, so edit your initial post accordingly

what happened on the day happened to the DRIVER

what happened since that day happened to the KEEPER

SO ONLY USE THOSE 2 WORDS WHEN DESCRIBING THE EVENTS

as these are invoices, in a current climate where there is no laws as such , plus on private land where yellow lines have no weight other than to deter parking , then there are no mechanisms to make them invalid

MET do not and cannot use CCTV , they use ANPR cameras , totally different

a parking company like MET will almost always reject the initial appeal and should issue POPLA codes, which as the newbies thread tells you , is the point in appealing and then go to popla

you wont get them waivered , so you must go to POPLA

if you read the BPA CoP, you will know that emergency vehicles are considered exemt and allowed to go about their business, so once MET know a police car was involved it is unlikey that they will issue a ticket

draft your popla appeal and post it on here , minus any personal info, for critique

you arent the first and wont be the last so look for popla appeals at the same place or at GATWICK etc

and dont forget to edit your post so that the PPC cannot identify who was driving, no blabbing on public forums like this one, as MET can easily screenshot the posts


staying as KEEPER means MET failed POFA2012, AS YOU SEEM TO INFER

Coupon-mad

The second offence was committed before the date of issue for the first NTK Is that an arguable point to have one of the fines cancelled?

No, and it's not an offence.

NTK no 1
date of contravention: 21st of June
Date of issue of this notice: 25th of July

NTK no 2
Date of contravention: 4th July
Date of issue of this notice: 3rd August

If there was no PCN attached to the vehicle then these are too late to hold you liable as rk, unless MET had to write to a lease/company first?

Are you a taxi driver or have a lease car? Not the rk of the vehicle?

If so, these lease/hire ones are soooo easy to win at POPLA it's laughable.

Johnrey

I only use the terminology I did for my own convenience in explaining the situation, none of my personal details are linked to this account nor is the username remotely linked to my name. I’m the registered keeper and I own the car outright so there’s no valid reason for the delay. Am I right in assuming that the NTKs are non compliant then? Will edit the post regardless once I’m home

Coupon-mad

Yes the NTKs are non POFA. That is a version that's allowed; it doesn't 'void' the PCNs.

But it means they can't hold the rk liable. They can only pursue the driver!

Same as all the zillions of other non POFA POPLA appeals on the forum. You can find one by searching MET POPLA McDonalds non-POFA even though yours is not McDonalds (you need that word to get to MET ones).

You should also add a point that there is no contract formed because the operator appears to be trying to charge for something that's actually meant to be (perhaps, because the meaning is vague and not the same as on-street) prohibited by double yellows.

They can't say 'no parking on double yellow lines' then charge for parking on double yellows.

Such conduct is trespass at best, which a parking firm can't twist into a contractual agreed fee to do what is expressly prohibited by the landowner (if it is). In law, trespass is a matter only for the landowner and to pursue a nominal loss or damages, and no such damages have occurred and a PPC can't pursue a charge for 'damages'. As the Beavis case confirmed at the Supreme Court, ParkingEye had no such right.

Oh, and you MUST now edit out most of your first post that BLABS about the driver!!

REMOVE THE PARAGRAPHS THAT TALK ABOUT WHO WAS DRIVING - NOW.

Redx

the words "MY , ME , MYSELF & I" should not be used in cases like these

THE DRIVER and THE KEEPER should be used when describing events so that the PPC cannot identify you from your posts

and as the RK they failed POFA2012 as you correctly say so your POPLA APPEAL will include POFA2012 as one of SEVERAL appeal points

they failed so the RK is not liable, but the driver is , so no blabbing

lets see your popla appeal draft once post #1 has been edited (your reply should have said "I accept your comments and will amend my earlier post once I get home")

Johnrey

Please could people give me feedback on my appeal to popla?

Re: UK PARKING CONTROL LTD PCN,reference code XXXXXXXXXXXXXXXXXXX
POPLA Code: XXXXXXXXXXXXXXX



Dear sirs



As the registered keeper, I received an invoice from MET Parking Services Limited about a BP Petrol filling station. I appeal on the following grounds:

1. The charge is not a genuine pre-estimate of loss.
2. No standing/authority to pursue charges in the courts - MET is a mere agent with negative responsibility for customers on this private land.
3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012(the POFA).
4. Unclear and non-compliant signage created no contract with the driver.
5. There is no contract formed by failing to comply with the request of !!!8220;No parking, waiting, loading or unloading on double yellow lines!!!8221;.







1. The charge and is not a genuine pre-estimate of loss.
The site in question is a free site with no parking charges, as such there is no genuine loss suffered by failing to comply with their request that !!!8220;vehicles must not park, wait, load or unload on yellow lines!!!8221;. If MET are alleging that failure to comply with this request gives rise to a loss then the £2.50 to obtain data from the DVLA would be the only sum that an Operator can potentially claim as a typical sum of the heads of cost that arise in all cases. And that would only be possible if the driver has been fully informed of that sum, on very clear notices, in advance of parking. This was not the case.

£100 is a sum 'plucked out of the air' by MET and it bears no relation to any loss. My proposition is that £100 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorist!!!8217;s, when compared to PCN!!!8217;s issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximize their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure.

I require MET to explain their calculations. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact only 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate showing why every PCN is£100 (whether appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they might reasonably count only 2% of the time taken on an average POPLA appeal, since the vast majority of cases involve no appeal work at all.

Indeed, in the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, !!!8220;However, genuine pre-estimate of loss means just that. It is an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

If MET present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with BP or at any substantive meeting within the Operator's Senior Management. How/when were these calculations made and on what basis? Bearing in mind how many of their cases actually go to POPLA, what steps were taken to account for the 98% which do not? I put MET to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £100 charge in advance then there was never a pre-estimate of loss discussion at all, as was found in a similar case on April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, whereby HHJ Hand QC concluded in his summary at 94:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance...Finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an !!!8220;in terrorem!!!8221; sum to deter breach and as such is a penalty.''

A direct comparison can be drawn with Brookfield v Van Boekel that, so far as MET made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers of the MSA on the other. £100 was simply the maximum set by the BPA, a sum which motorists might 'tolerate'.

I contend that the figure of £100 is a penalty clause in terrorem to deter breach. The calculation cannot be copied from another PPC, neither can it be commercially justified.

POPLA Assessor Chris Adamson stated in June 2014 that:
''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Ci v 1669 when Coleman J states a clause should not be struck down as a penalty, !!!8220;if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach!!!8221;. This supports the principle that 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.''



2. No standing/authority to pursue charges in thecourts !!!8211; MET is a mere agent with negative responsibility for customers on this private land.
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. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. As a commercial site agent acting under an agency agreement 'on behalf of' the named principal (BP), MET has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP.

I put MET to strict proof to provide an unredacted, contemporaneous copy of the contract with BP, which - to demonstrate standing and authority - must specifically state that MET can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are. How will I know that the landholder contract allows MET to charge £100 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that MET can put up signs and 'issue parking charges' would not prove that this charge is within the contract nor will it show any standing of this site agent.

3. Failure to invoke Keeper Liability under the Protection of Freedoms Act2012 (the POFA).
In order to pursue Keeper Liability under the POFA, UKPC must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the !!!8220;Notice to Keeper!!!8221; (!!!8216;NtK!!!8217;) as per para. 9 Sch 4 of the Act which reads in part:

!!!8220;(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must!!!8212;
(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;
(e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper!!!8212;
(i) to pay the unpaid parking charges; or
(ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given!!!8212;
(i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii) the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;
(h) identify the creditor and specify how and to whom payment or notification to the creditor may be made;
(4) The notice must be given by:
(b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.
(5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended.
(6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so !!!8220;given!!!8221; for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose !!!8220;working day!!!8221; means any day other than a Saturday, Sunday or a public holiday in England and Wales.!!!8221;

The NTK fails due to the following reasons:
!!!8226; They have failed to warn me that, if the charge is not paid in full within 28days, and the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under the Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid. Thus the Operator has failedto comply with para.9(2)(f).
!!!8226; They have failed to serve their NtK within the time limit; the NtK reads as follows !!!8220;Date of Contravention: 04 July 2018!!!8221; !!!8220;Date of issue of this notice: 03rd August 2018!!!8221; so it fails to comply with para.9(4)(b).

So, MET cannot invoke keeper liability. In this case the driver has not been identified so the charge has no legal basis to be enforced against me.

4. Unclear and Non-compliant signage. Which created no contract with the driver, who did not see any signs.


Unless signs are seen and understood before parking, they are not imported into any contract. In a free car park, where the Operator does not own the land (the named principal being the only party capable of offering the spaces and other amenities in the facility), there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with MET in this case.

I have recently driven this same route to check signage and MET signage is not located anywhere near the alleged double yellow line. The driver, once having stopped there, would not have any way of making eye contact with any signage informing the driver of any terms and conditions, which do not fail the test of 'large lettering' and prominence of the parking charge, as established in ParkingEye Ltd v Beavis, which is fully distinguished. Nor do they need to walk past the signage to enter the Kiosk.

On my recent visit I also observed that red cones have been placed along the same area of which the ANPR camera!!!8217;s observed the driver and vehicle on the date of Contravention. This directly reflects that the signage and yellow lines alone are in fact, completely ineffective methods of brining the request of !!!8220;No parking, waiting, loading or unloading!!!8221; to the attention of entrants. So much so that measures such as physical blockades have been taken to enforce this. I have photographic evidence to support this claim.

No reasonable person would have accepted such onerous parking terms and I contend the extortionate charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2QB 163, Court of Appeal). Lord Denning continued: 'The customer is bound by those terms as long as they are sufficiently brought to his notice before hand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'



5. There is no contract formed by failing to comply with the request of !!!8220;No parking, waiting, loading or unloading on double yellow lines!!!8221;.

The operator appears to be trying to charge for something that is meant to be prohibited, by double yellow lines. To state that parking or waiting on double yellow lines is not allowed and then try to charge for such events is self-contradicting.

Such conduct is trespass at best, which a parking firm cannot try to enforce as a contractual agreed fee to do what is, expressly prohibited by the landowner. In law, trespass is a matter only for the landowner to pursue a nominal loss or damages, and no such damages have occurred and a PPC can!!!8217;t purse a charge for !!!8216;damages!!!8217;. As the Beavis case confirmed at the Supreme Court, ParkingEye had no such right.

Based onthe above I request that my appeal is allowed.

Yours faithfully,

XXXXXXX

Johnrey

Please ignore the random symbols and numbers. The forum doesn’t like certain symbols from me such as hyphens and quotation marks

Le_Kirk

You cannot use GPEOL (your paragraph 1), this hasn't been in use for some time, looks like you are using an old POPLA appeal. Search the forum using GPEOL as your search term. Then look at the Sticky POPLA decisions (front page of the forum) and find a recent successful one.

Johnrey

Hi, I can’t seem to find much on the topic of GPEOL other than people saying not really to bother mentioning it. Should I just remove this point and submit my popla appeal as is minus this point? The NTK is non compliant, so surely this is grounds to stop them from Persueing me ( the keeper).

Johnrey

A lot of this is still my own words and I have tailored it to suit my circumstances.