POPLA Appeal- Got 7 days for rebuttal

rich2568

Im at POPLA stage and have had the parking company throwing my appeal points back at me so I am currently looking for picking holes in their rebuttal.....

KeithP

It's now time to read that part of post #2 of the NEWBIES FAQ sticky thread following:

AFTER SUBMITTING YOUR POPLA APPEAL:

Umkomaas

rich2568 wrote: »

Im at POPLA stage and have had the parking company throwing my appeal points back at me so I am currently looking for picking holes in their rebuttal.....

Go ahead, pick the holes, then let the forum see what it is the PPC is 'throwing' at you and how you've rebutted their assertions. We cannot guess blindly what it is you're asking for.

Maybe some background details, a copy of your POPLA appeal, the PPC 'throw', and the name of the parking company.

Unfortunately all the forum's clairvoyants have been been sent on a 3 week vacation to the Seychelles by Martin Lewis as a recognotion of their undying input to this site in unravelling the unravelable.

What a very nice surprise for them, they never saw it coming!

waamo

rich2568 wrote: »

Im at POPLA stage and have had the parking company throwing my appeal points back at me so I am currently looking for picking holes in their rebuttal.....

That sounds like a good plan. I've not gone away. It was a complete surprise to me.

I've give up the clairvoyance. I couldn't see a future in it.

rich2568

Thanks for that-- Ive looked at some examples & there is an interesting rebuttal concerning this statement used..
" POPLA Assessor Chris Adamson has stated in June 2014 in response to VCS adjudication and GPEOL 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 vZambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “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”

Would it be wise to use this in my own rebuttal whereby the company have stated that their £100 charge for breaching a No Waiting period is a true reflection of loss--- plus they have used the Beavis case in their argument.......

rich2568

Yes- I shall post up their arguments from their POPLA pack....Give me a mo....

KeithP

Don't try GPEOL.

That was quashed in 2015.

rich2568

The Parking Charge Notice was issued as the vehicle in question visited the clearly signed NPS controlled car park, but the vehicle returned to the car park within the no-return period. The terms and conditions of parking state that the maximum stay time in the car park is 90 minutes, and there is a no-return period of 1 hour. The photographs taken by the ANPR camera at the car park entrance/exit show that the vehicle returned to the car park 6 minutes after departing, which is well within the 1 hour no-return period.

The vehicle keeper also uploaded a photograph showing the terms and conditions of parking to their Pepipoo thread, and we have also submitted this, as "Photo of signs uploaded to Pepipoo by keeper.jpg".

If we look at the Pepipoo thread (uploaded as "AN129471 forum thread.pdf", the very first post (Post #1401622), the vehicle keeper states that "We will obviously appeal as a different driver then revisited the car park!" After a few forum members asked about this point (two different drivers), the keeper then stated that (Post #1415199) "The driver was the same driver who had to suddenly leave for his money who then returned". The same vehicle keeper, making two posts that clearly contradict each other. We must bear this in mind when looking at the points raised within their PoPLA appeal.

The appellant has made a number of comments during their PoPLA appeal:

1. "1) NPS Ltd have 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 NPS Ltd to strict proof of the contract terms with the actual landowner (not a lessee or agent). NPS Ltd have no legal status to enforce this charge because there is no assignment of rights." - To confirm, the submitted BPA compliant witness statement (included in the submitted PoPLA Site Pack) shows that a contract exists between the landowner and Northern Parking Services. The witness statement does not need to show all of the items referenced in section 7.3 of the BPA Code of Practice. Obviously, the full contract, which we are under no obligation to show to the appellant at this time, is fully compliant with the BPA Code of Practice. The PoPLA assessor can request to see the full contract, simply by sending an e-mail to popla@npsne.co.uk. As can be seen from the supplied copy of the witness statement held with Merlin Properties, the agreement has a commencement date of 22nd June 2016. The contract is for an initial period of 60 months, after which point it becomes an ongoing/rolling agreement with notice provisions for both parties. We can confirm that neither Merlin Properties or Northern Parking Services have applied the notice provisions, and therefore the agreement remains in place. Consequently we would contend that the witness statement provided does adequately prove that Northern Parking Services had sufficient authority to issue Parking Charges on the land, on the day of the contravention - 7th August 2018. Again, should the PoPLA assessor wish to see the current contract that is in place, this can be supplied by sending an e-mail to popla@npsne.co.uk.

2. "2) The operator has not shown that the individual/s who it is pursuing is in fact the driver/s (Claimants claim that the car entered car park within a "No Return Period") who may have been potentially liable for the charge. As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. The fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA- (Protection of Freedoms Act 2012) can cause a keeper appellant to be deemed to be the liable party.The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge.Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA." - We are not sure that the vehicle keeper is attempting to say here. They have referenced the Protection of Freedoms Act (2012) Schedule 4, but are seemingly unaware of the provisions within it. We can use the provisions within the act to hold the vehicle keeper liable for a Parking Charge Notice, under certain circumstances. The original Parking Charge Notice was served within the timeframes laid down in the Act. The Parking Charge Notice is included within the PoPLA PCN Pack, so the PoPLA assessor can ensure that it is so-called "PoFA Compliant". As a final note, the vehicle keeper gets the opportunity to answer the points made within our submission, but they are NOT allowed to enter any new evidence. We simply note that within their PoPLA appeal, the keeper does not state why they think the Parking Charge Notice is not PoFA compliant, or why they feel that they should not be held liable for this Notice under the Act.

3. "3) Signage on the site states that a charge is for ‘Failure to comply with the terms & conditions’ so NPS Ltd must prove the charge to be a genuine pre-estimate of loss. I believe the parking charge is a penalty & does not reflect the operator’s loss, and so is not enforceable. The £100 parking charge does not reflect any loss caused. NPS Ltd has not provided evidence before me to prove that the parking charge is a genuine pre-estimate of loss." - We would like to refer to the Supreme Court case ParkingEye vs Beavis, where this matter was discussed. The Parking Charge Notice does not make any claim that it is a "penalty" or a "fine".

To confirm, we are using the provisions within the Protection of Freedoms Act (2012) Schedule 4, to hold the vehicle keeper liable for this Parking Charge Notice, as we do not know the identity of the driver of the vehicle. We know that the same driver entered the car park on both occasions, both by examining the photographs taken by the ANPR camera (included in the PoPLA PCN Pack), and also as the vehicle keeper admitted as such to Pepipoo.

The events surrounding the Parking Charge Notice have not been questioned, so there is no doubt that the times shown on the time-stamped photographs are accurate. Therefore, we will summarise the reasons for the Parking Charge Notice being issued below:

1. The motorist visited the car park at 18:02 and departed at 18:23.
2. The motorist returned to the car park at 18:30, 6 minutes and 50 seconds after departing. We note that this has not been disputed by the appellant, and in fact, it was also accepted to Pepipoo.
3. The Parking Charge Notice was issued, as the vehicle returned to the car park within the 1 hour no-return period. We note that the appellant included a photograph of the terms and conditions signs within their Pepipoo thread, so there is no doubt that the terms and conditions of using the car park were clearly on display. Also, the appellant has not claimed that there wasn't sufficient signage in the area.

The vehicle returned to the car park within the no-return period, which the motorist has not disputed at all. The terms and conditions are clear, in that "No return to site permitted within 1 hour". As the vehicle returned to the car park 6 minutes 50 seconds after leaving, the Parking Charge Notice was issued correctly, and we feel that the appeal should be rejected.

rich2568

KeithP wrote: »

Don't try GPEOL.

That was quashed in 2015.

Oh I see.......
Im basing my argument on the charge of £100 being not a pre estimate of loss based on the car only visiiting the car park & not actually parking!!

rich2568

What about reference to "Excel Parking Services v Hetherington-Jakeman, Mansfield County Court, March 2008" ?--- with reference to the £100 clearly being not a pre estimate of loss ?

waamo

rich2568 wrote: »

What about reference to "Excel Parking Services v Hetherington-Jakeman, Mansfield County Court, March 2008" ?--- with reference to the £100 clearly being not a pre estimate of loss ?

That was pre Beavis. Beavis ended GPEOL. As you seem to have a thread running elsewhere then have you asked your question on that thread?

The reason ask is that many posters here post there too so you may just be duplicating the advice.