Hello all,
I recently got a windscreen charge for parking in my friends bay. Unfortunately I did not have a permit at the time. The enforcement officer was just driving away when I stopped him to ask 'why' - he then asked wher I had been to which I replied "popped to the post office for my friend whom I am now visiting and who has a permit waiting for me". As I could not produce a permit there and then he drove off with his pictures of my car ect.
I later sent an email to Carparking who disputed my letter on the following grounds...
Dear xxxx,
Your appeal against the Parking Charge Notice (PCN) issued on 28 Jul 14 at xxxxxx for the alleged contravention of No Permit has been considered by our appeals team, having reviewed the evidence and the details supplied by yourself your appeal has been rejected.
Your appeal has been rejected for the following reasons:
On 28 Jul 14 at 16:36 this vehicle, Registration xxxxxxx was parked at xxxxx Place without displaying a valid parking permit.
When parking at xxxx Place the driver of this vehicle agreed to pay a Parking Charge of £100 if they did not park in accordance with the terms printed on the contractual warning signs.
The contractual warning signs in place state: Permit Holders Only. A valid permit must be displayed at all times. This vehicle was parked in contravention of this term of the contractual warning signs.
At the time this vehicle was issued with a PCN no valid permit was on display and no permit could be seen within the vehicle.
There are signs displaying the terms and conditions for parking on site at regular intervals throughout this site.
The parking of this vehicle at this location was therefore unauthorised and this charge was issued correctly.
The parking forum information you refer to in your appeal is outdated and inaccurate, current case law from HHJ Moloney QC covers this and with regard to your comments in relation to the charge being unfair, which are based on the Unfair Terms In Consumer Contract Regulations some terms do not fall under the assessment of ‘fairness’ as long as they are in plain, intelligible language. These terms include the definition of the main subject matter of the contract or the adequacy of the price in relation to it. Our signage clearly states the parking requirements and the costs of none compliance.
All costs are commercial in confidence and will not be disclosed at this stage, commercial in confidence will be disclosed as directed by a court if necessary.
The operative has also submitted a statement with regard to your conversation at the time, confirming you parked to use the Post Office but as you knew the bay owner you should be allowed to park. The signage on site clearly states the terms for parking, a permit was not displayed and this charge was issued correctly.
Photographic evidence supporting the issue of this PCN can be viewed by following the link and entering your vehicle registration and PCN reference number; xxxxxxxxxxxxxxxxxxx. Copies of these photographs are available on request.
As you appealed within the 14 day discounted period the parking charge amount has remained at the reduced payment amount of £60, the amount due will remain at the discounted rate for a further 14 days from the day after the date of this letter. After the 14 days the full amount will be due and payable.
This decision is final and no further communication will be accepted by Care Parking with regard to this appeal, therefore you are requested to now submit your payment of the monies owing.
You now have a number of options from which to choose:
1. Pay the parking charge.
2. Make an appeal to POPLA – The Independent Appeals Service by making your appeal online at (popla).
a. Your POPLA verification code is: xxxxxxxxx. Please be advised that if you opt for independent arbitration of your case, the ability to pay the parking charge at the reduced rate of £60 will immediately end. If you opt to pay the parking charge you will be unable to appeal to POPLA.
3. If you choose to do nothing, we will seek to recover the monies owed to us via our debt recovery procedures and may proceed with Court action against you.
This letter and all other correspondence received in relation to this PCN may be used to form part of our case for court action if necessary.
so my reply to this email will be ;
POPLA Verification code : xxxxxxx
Vehicle Reg: xxxxxxx
PPC: Careparking
PCN Ref: xxxxxxx
Date of PCN: 28/7/2014
I, as the registered keeper received an invoice from Care Parking requiring payment of a charge of £100 for the alleged contravention of parking without displaying a valid permit at xxxxx Place.
As the registered keeper, I would like to appeal this notice on the following grounds:
1. Charge not a genuine pre-estimate of loss
2. No authority to levy charges
3. No Creditor identified on the Notice to Appellant
1. Charge not a genuine pre-estimate of loss
The demand for a payment of £100 (discounted to £60 if paid within 14 days) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to the loss that would have been suffered by the Landowner / Landholder. The keeper declares that the charge is punitive and therefore an unenforceable penalty.
The BPA Code of Practice states:
“19.5 If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer.
Thereby Care Parking asserts that the “charge” is actually damages to recover their losses through breach of contract, however not only do I contend that this is in fact a penalty and not a genuine pre-estimate of loss, Care Parking have also refused to present me with a breakdown of those losses. When I raised the question that the amount requested was neither a genuine tariff/fee nor was it based upon any genuine pre-estimate of loss they replied that my point “was covered in recent case law in the county courts by HHJMaloney QC this also shows that it is acceptable for parking companies to make a profit as a business”
Neither is this charge 'commercially justified'. In answer to that proposition from a PPC which had got over-excited about the ParkingEye v Beavis small claims decision (now being taken to the Court of Appeal by Mr Beavis anyway) POPLA Assessor Chris Adamson has stated in June 2014 that:
''In each case that I have seen from the higher courts,...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 Bank of Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine 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”.
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.''
These losses necessarily being a “pre-estimate” must by nature be already known to CareParking there can be no genuine reason, commercial or otherwise, for CareParking to withhold or refuse to provide these on request, yet as they have both failed and are essentially refusing to provide a breakdown of their pre-estimate of loss I must contend that the quoted figure of £100 cannot be a genuine pre-estimate of loss.
I contend that the figure of £100 (reduced to £60 if paid within 14 days) infact a penalty and cannot therefore be a genuine pre-estimate of loss.
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.''
In the 2014 Annual Report prepared by the lead assessor, Mr Greenslade, he stated, “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."
Additionally, no time was given to retrieve the permit which was waiting for me from my associate who leases the parking bay from Caxton Place. Photographic evidence of this permit has been disregarded within my appeal.
2. No authority to levy charges
A parking management company will need to have the proper legal authorisation to contract with the consumer on the landowner/landholder’s behalf and enforce for breach of contract. CareParking must either produce evidence to demonstrate that it is the landowner/landholder or a contract that it has the authority of the landowner/landholder to issue charge notices at this location.I requested this information with my original appeal letter to CareParking but was informed my request was not based on fact and is incorrect
I believe there is no contract with the landowner/landholder and CareParking which entitles CareParking to levy these charges and to pursue these charges in their own name as creditor in the Courts and therefore I contend that CareParking has no authority to issue charge notices.
I put CareParking to strict proof to POPLA that they have the necessary legal authorisation at this location and I demand that CareParking produce to POPLA the contemporaneous and unredacted contract between the landowner/landholder and CareParking even if a basic contract is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between CareParking and the landowner/landholder and would contain nothing that CareParking can lawfully use in their own name as a mere agent, that could impact on a third party customer.
3. No Creditor identified on the Notice to Keeper
Failing to include specific identification as to who “the Creditor” may be is misleading and not compliant in regard to paragraph 8 (2) (h) of Schedule 4 of the Protection of Freedoms Act 2012. Whilst the Notice has indicated that the operator requires a payment to CareParking there is no specific identification of the Creditor who may, in law, be CareParking or some other party. The Protection of Freedoms Act requires a Notice to Appellant to have words to the effect that “The Creditor is…” and the Notice does not.
Summary
On the basis of all the points I have raised, this “charge” fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with basic contract law.
I therefore respectfully request that my appeal is upheld and the charge dismissed.
Yours faithfully
I'm wondering if they might 'get me' on the whole post office situation, or will the pre-estimate of loss be enough?
Any feedback would be very much appreciated,
Thankyou.