POPLA Appeal evidence HELP!!!

lollyhugz

Correct....

They completely ignored this point...so I aim to raise this in my response as well as the fact their entrance sign is on double yellow lines so you cannot pull over or stop to read the small print

Let me know if you think this is wrong

Thanks!

Coupon-mad

They completely ignored this point...so I aim to raise this in my response as well as the fact their entrance sign is on double yellow lines so you cannot pull over or stop to read the small print

Missed what point? You didn't have any winning points of appeal (sorry) and the point that the sign is on DYL at the entrance won't help you.

Sorry to tell you that you will lose this POPLA appeal, as the appeal you made had nothing in it to win.

You would have 100% won if you had appealed as registered keeper.
Tell the 'someone at work' that they ruined your POPLA appeal & caused it to lose.

So frustrating, given NONE are lost here v Smart when people use the templates.

The good news is, Smart never sue anyone, so no-one here would pay. And please listen to us, not colleagues, as you happily ignore debt demands this year.

lollyhugz

I understand that and as I explained...I unfortunately appealed before I found advice here and made the mistake of saying I in that appeal hence why it lost.

I then went to popla and one of my points was regarding land owner contract which smart have ignored and not addressed in their evidence so what I am asking is can I demand this again in my response to popla?

KeithP

lollyhugz wrote: »

I then went to popla and one of my points was regarding land owner contract which smart have ignored and not addressed in their evidence so what I am asking is can I demand this again in my response to popla?

No, you don't demand them to supply it.

Instead you tell PoPLA that as Smart have failed to show that they have a contract with the landowner, they have clearly demonstrated that they had no authority to issue the parking charge at all.

Coupon-mad

lollyhugz wrote: »

I understand that and as I explained...I unfortunately appealed before I found advice here and made the mistake of saying I in that appeal hence why it lost.

I then went to popla and one of my points was regarding land owner contract which smart have ignored and not addressed in their evidence so what I am asking is can I demand this again in my response to popla?

OMG I take back what I said! So relieved for you!

You have rescued it with that point alone, and that is ALL you should mention in your comments.

:T

lollyhugz

Thank you all, my response will be exactly that.

I will of course let you know if anything comes back....



Given Smart Parking have failed to show that they have a contract with the landowner, they have demonstrated that they had no authority to issue the parking charge notice.

MistyZ

Coupon-mad wrote: »

OMG I take back what I said! So relieved for you!

You have rescued it with that point alone, and that is ALL you should mention in your comments.

:T

Blimey. I could see that SMART kindly provided at least one opportunity for a spirited rebuttal because the parking companies usually present some fuzzy, scrappy document purporting to be a contract, don't they? And they provided nothing, not even an assertion that they have a contract.

But I didn't realise that this omission was quite such an own goal! Awesome! Go for it lollyhugz!

richie2000

lollyhugz wrote: »

Dear POPLA adjudicator,
I am writing to appeal against a parking charge levied by Smart Parking on 08/11/2018. I am the registered keeper of the vehicle concerned.
The grounds for my appeal are as follows:
1) No genuine pre-estimate of loss
The charge of £45 is punishing and unreasonable, contravening the British Parking Association’s Code of Practice section 19. Smart Parking must therefore be required to explain their 'charge' by providing POPLA with a detailed financial appraisal which evidences the genuine pre-estimated amount of loss in this particular car park for this alleged contravention. However, with or without any 'breach', the cost of parking enforcement would still have been the same and there was no loss or damage caused so Smart Parking have no cause of action to pursue this charge. In no way does it absolve the operator of their responsibility to base the figure on a genuine pre-estimate of loss, or to comply with section 19.6 which states that the charge can “cannot be punitive or unreasonable”.
Smart Parking cannot include their operational tax-deductible business running costs - for example, costs of signage, staffing and dealing later with the appeals, or hefty write-off costs. This would not represent a loss resulting from a breach of the alleged parking contract and in any case I believe Smart Parking are likely to be paid by their client - so any such payment income must be balanced within the breakdown Smart Parking supply and must be shown in the contract, which leads me to my next appeal point.
2) Legal capacity to issue parking charges
Smart Parking have no proprietary interest in the land concerned and have not responded to a request for a copy of the contract with the landowner in which authority to pursue outstanding parking charges is granted, as required by the BPA Code of Practice, Section 7. In particular, the issue of the requirement set out in section 7.2 paragraph (f) : “whether or not the landowner authorises you to take legal action to recover charges from drives charged for unauthorised parking” has not been addressed. In the absence of this evidence, I believe that Smart Parking do not have the legal capacity to enforce such a charge.
I require the landowner contract including any payments made between the parties, names & dates & details of all terms included. I suspect Smart Parking are merely an employed site agent and this is nothing more than a commercial agreement between the two parties. There is nothing that could enable Smart Parking to impact upon visiting drivers in their own right, for their own profit. For the avoidance of doubt, I will not accept a mere “witness statement” instead of the relevant contract. There would be no proof that the alleged signatory can act on behalf of the landowner or has ever seen the relevant contract. Also a letter or statement would fail to show any payments made between the parties, and would omit dates & details of all terms in the actual contract - and so would fail to rebut my appeal point about the Operator's lack of standing & assignment of any rights.
3) Unfair terms
The terms that the Operator is alleging create a contract, were not reasonable, not individually negotiated and caused a significant imbalance - to my potential detriment. Therefore, this charge is an unreasonable indemnity clause under section 4(1) of the Unfair Contract Terms Act 1977, which says: ‘A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.’
Further, the charge contravenes The Unfair Terms in Consumer Contract Regulations 1999 :
Schedule 2 : Indicative and non-exhaustive list of terms which may be regarded as unfair”
1(e) “Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.”
5(1) ''A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer. (2) A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term.''
From the Office of Fair Trading’s 'Guidance for the Unfair Terms in Consumer Contract Regulations 1999':
Group 5 : Financial penalties – paragraph 1(e) of Schedule 2:
5.1 “It is unfair to impose disproportionate sanctions for a breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law.”
Group 18(a): Allowing the supplier to impose unfair financial burdens
'18.1.3 These objections are less likely to arise if a term is specific and transparent as to what must be paid and in what circumstances. However, as already noted, transparency is not necessarily enough on its own to make a term fair. Fairness requires that the substance of contract terms, not just their form and the way they are used, shows due regard for the legitimate interests of consumers. Therefore a term may be clear as to what the consumer has to pay, but yet be unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract
19.14 The concern of the Regulations is with the 'object or effect' of terms, not their form. A term that has the mechanism of a price term...will not be treated as exempt if it is clearly calculated to produce the same effect as an unfair exclusion clause, penalty, variation clause or other objectionable term.'
I contend the above describes the charge exactly as an 'unfair financial burden'. The charge is designed ostensibly to be a deterrent, but is in fact a disguised penalty, issued by a third party agent which is not the landowner and has no assignment of title. Such a charge would normally be restricted to the landowner themselves claiming for any damages or loss - which was nothing as the driver parked in their properties designated parking space as indicated on the rental agreement. The charge imposed by Smart Parking constitutes an unfair term as it is disproportionate with respect to the alleged infringement.

I therefore respectfully request that POPLA uphold my appeal and cancel this PCN.

Just wanted to advise that I used this very template only this month.

Not even an argument from SMART when receiving this. The ticket was cancelled immediately.

For reference, they issued my wife with a £100 ticket for a stay of 11 minutes whilst Cancer Research unloaded her car with donated goods.

I request that they seek the driver of the vehicle, asked if £100 was a reasonable charge for 11 minutes loading and used the template above.

Thanks MSE

MistyZ

Do you mean you used lollyhugz's POPLA appeal for the first appeal to SMART??

It's great you won, but SMART are not difficult to beat. Another PPC, another situation and that appeal would NOT pass muster, certainly not as a POPLA appeal. The first section isn't even relevant since the Beavis case.

Umkomaas

Unfair Terms in Consumer Contract Regulations 1999

Superseded in 2015 by the Consumer Rights Act.

Had Smart offered even the meekest of POPLA challenges, your appeal would have hit the rocks.

The danger of copying and pasting anything that looks 'right' and has plenty of 'legal stuff' in it, seemingly without any checking of what's being submitted.

It gets worse when people are doing likewise in defences and witness statements and signing under a Statement of Truth.

Still, a win is a win, no matter how lucky! :cool: