Hi everyone,
This forum helped me back in July last year to successfully appeal a parking charge from UKPC and we are now eternally in your debt. Unfortunately though, my mother-in-law now has trouble with them for a vehicle parked in a residential parking area in a visitor's space without the correct permit. I'd please like to increase our debt to you all...
I have tried my best to understand the changes that have occurred since our last appeal and have incorporated/removed these into/from the appeal letter, which I have pasted below. I would really appreciate any help you can offer as I have tried my best but am not confident I've got it all covered with the changes.
Thank you so much in advance.
Dear POPLA Assessor,
Re: UK Parking Control Ltd, parking charge notice number: XXXXXXXXXXXXX
Vehicle registration number: XXXX XXX
POPLA Reference number: XXXXXXXXXX
I am the registered keeper of the vehicle with the above registration number and this is my appeal:
1. The parking charge is not a genuine pre-estimate of loss.
UK Parking Control Ltd claims that the charge is for ‘failure to comply’ with its ‘terms of parking’ and that the vehicle was ‘in breach’, so this operator must prove the charge to be a genuine pre-estimate of loss. There is no loss flowing from this parking event because the car park is a free car park that has no charging facilities whatsoever. The vehicle was parked in a marked visitors bay within The Hamptons housing development, using a Hamptons visitor’s permit.
Therefore, UK Parking Control Ltd cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back-office functions, debt collection, etc., cannot possibly flow as a direct consequence of this parking event. UK Parking Control Ltd would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.
The charge of £100, being sought for an alleged breach of the parking terms, namely ‘parked in a permit area without displaying a valid permit’, is disproportionately high. Consequently I contend and the BPA code of practice states, a charge for breach must be based on the genuine pre estimate of loss. The Office of Fair Trading has stated to the BPA that a ‘parking charge’ is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists.
Christopher Adamson stated in a POPLA appeal against VCS Ltd stated: ‘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... that a charge for damages must be compensatory in nature rather than punitive.’
The case at hand involves a private parking area for residents with allocated spaces and visitors’ spaces. The vehicle was parked in an allocated visitor’s bay, which incurs no fees for parking at any point. Therefore, there is no loss to anyone. As the charge in this case is the same lump sum charged for any alleged ‘breach’ (irrespective of whether the vehicle is parked for 10 minutes or 24 hours or had received permission from the individual entitled to authorise parking in this parking bay, etc.), it is clear the charge is a punitive measure and no consideration has been given to calculating a genuine pre-estimate of loss in this case.
In addition, POPLA Assessor Christopher Adamson stated in June 2014 upon seeing Vehicle Control Services’ effort at a loss statement – likely to be broadly similar to any effort made by UK Parking Control Ltd – 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.’
In another upheld POPLA appeal, Marina Kapour did not accept a submission by the operator that the inclusion of costs that were made up of general business costs was commercially justified. She said:
‘the whole business model of an operator in respect of a particular car park operation cannot of itself amount to commercial justification. I find that the charge is not justified commercially and so must be shown to be a genuine pre estimate of loss in order to be enforceable against the appellant.’
This case is the same and UK Parking Control Ltd is at best an agent, with a bare contractor’s license to put up signage and ‘issue tickets’. The vehicle was clearly parked in a visitors bay and it is therefore clear that this parking charge is punitive and no consideration has been given to calculating a genuine pre estimate of loss in this case. Therefore, I require the operator to submit a full breakdown of its genuine pre-estimate of loss to show how the loss is calculated in this particular parking area and for this particular alleged breach. The amount of £100 demanded is punitive and unreasonable, is not a contractual fee and can neither be commercially justified nor proved to be a genuine pre-estimate of loss and I respectfully request that my appeal be upheld and the charge dismissed.
2. No contract exists with landowner to pursue charges
The operator does not own the land in question and has provided no evidence that it is lawfully entitled to demand money from a Driver or Keeper. It owns neither proprietary nor agency rights and holds no title or share of the land. I do not believe that it has the necessary legal capacity to enter into a contract with a Driver of a vehicle parking there or to allege a breach of contract in its own name as creditor. I believe that at best it may hold a site agreement limited to issuing tickets and as such I require that it provide POPLA with an unredacted copy of the actual contract with the landowner (not a lessee or managing agent).
In order to comply with the BPA Code of Practice, this contract must specifically grant the operator the right to pursue parking charges in its own name as creditor, please note that a witness statement such as a signed letter to the effect that such a contract exists will be insufficient to provide all the required information and therefore be unsatisfactory for the following reasons:
a) Some parking companies have provided ‘witness statements’ instead of the relevant contract. There is no proof that the alleged signatory has ever seen the contract nor that they are employed by the Landowner. Such a statement would not show whether any payment has been made to the operator which would obviously affect any ‘loss’ calculations. Furthermore, it would not serve to provide proof that the contract includes the necessary authority required by the BPA Code of Practice to allow the operator to pursue charges in its own name as creditor and to enter into contracts with drivers.
b) In POPLA case 1771073004, it was ruled that a witness statement was ‘not valid evidence’. If UK Parking Control Ltd provides a witness statement merely confirming the existence of a contract but no unredacted copy of that contract then POPLA should rule this evidence invalid in the interests of fairness and consistency.
Even if a basic contract is produced that mentions parking charge notices, 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 the operator and the Landowner containing nothing that UK Parking Control Ltd can lawfully use in its own name as mere agent that could impact on a third party. I therefore respectfully request that my appeal be upheld and the charge dismissed.
3. Unreasonable/Unfair Contract Terms.
There is no contract between UK Parking Control Ltd and I but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. According to the Office of Fair Trading, Guidance re Unfair Contract Terms:
‘It is unfair to impose disproportionate sanctions for 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...’
I believe UK Parking Control Ltd is in breach of the Unfair Terms Act 1977 and Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):
Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:
(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.
Unfair Terms
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.
This is confirmed in the Office of Fair Trading’s extensive guidance on the UTCCRs 1999. The guidance includes the following advice:
‘The Regulations are concerned with the intention and effects of terms, not just their mechanism. If a term has the effect of an unfair penalty, it will be regarded as such, and not as a core term. Therefore a penalty cannot be made fair by transforming it into a provision requiring payment of a fee for exercising a contractual option.
‘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, or which purports to define what the consumer is buying, 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.’
This charge is not exempt from the test of fairness then. It represents 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.’ I contend it is wholly unreasonable to rely on unlit signs in an attempt to profit by charging a disproportionate sum where no loss has been caused by a car in a free car park where the bays are not full. This charge caused a significant imbalance in the parties' rights and obligations arising under the contract, which renders the terms unenforceable. It's clearly a penalty and there is no case law to make such a charge commercially justifiable against a consumer of lesser bargaining power. By contrast, there is plenty of case law to support the UTCCRs and evidence that points to this charge being a penalty, and penalty clauses are unrecoverable in consumer contracts. For example, in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G, it was stated that:
‘whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred.’
This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946. Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, this 'charge' can only be an unlawful attempt at dressing up a penalty to impersonate a parking ticket.
4. Unclear and non-compliant signage not forming a contract
There are no clear sings in the parking area near the space the vehicle was photographed in. Any upright signs near to the visitors parking bay were unlit and were not seen by the occupants of the car. I believe that UK Parking Control Ltd places its signs so high that terms would only be legible if a driver got out of a car to try to read them. Any photographs supplied by the operator to POPLA will no doubt show the signs in daylight or with the misleading aid of a close up camera and flash and the angle may well not show how high the signs are. As such, I require UK Parking Control Ltd to state the height of each sign in its response and to show contemporaneous photographic evidence of these signs in the dark without the aid of flash photography. The operator also needs to show evidence in the way of a signage map on this point – specifically showing the location of the signs and whether a driver still in a car can see and read them when deciding to drive in. Any terms displayed do not alter the contract, which must be shown in full at the entrance.
Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A notice is not imported into the contract unless brought home so prominently that the party ‘must’ have known of it and agreed terms beforehand. Nothing about this operator's inflated ‘parking charges’ was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied. Any alleged contract would be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late.
There was no agreement to pay. No consideration/acceptance flowed to and from both parties, so there was no contract formed. This is a non-negotiated and totally unexpected third-party ‘charge’ foisted upon legitimate motorists who are not ‘customers’ of UK Parking Control Ltd but residents or visitors of the very buildings that are home to these parking spaces; they are not expecting to read a contract when they park at their home, or visit the home of friends or family. 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] 2 QB 163, Court of Appeal):
‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, 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. Notice to Keeper not properly given under POFA 2012 – no keeper liability
Further to the above points, the notice I have received, as the registered owner of the vehicle, makes it clear that UK Parking Control Ltd is relying on Schedule 4 of the Protection of Freedoms Act 2012. UK Parking Control Ltd has failed to comply in the wording of their Notice to Keeper since they have failed to identify the ‘Creditor’. This may, in law, be UK Parking Control Ltd or its client, its debt-collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to Keeper to have the words to the effect that ‘The Creditor is...’.
The wording of Paragraph 9(2)(h) of Schedule 4 of the Act does not just indicate that the creditor must be named/assumed, but ‘identified’. The owner of the vehicle is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘Creditor’ in its Notice to Keeper, UK Parking Control Ltd has failed to establish keeper liability. In this case, the Notice to Keeper has not been correctly ‘given’ under the Protection of Freedoms Act 2012 and so it is a nullity. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a Notice to Keeper is ‘fundamental to establishing liability’ for a parking charge, stating: ‘where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.’
As per the above points, UKPC’s charge has no legal basis and I ask that the assessor nullify the parking charge notice issued by UK Parking Control Ltd. The charge is unconscionable and extravagant and unrelated to local Penalty Charge levels in this area. It is believed that the Supreme Court’s decision in ParkingEye v Beavis will have an impact on the outcome of this POPLA appeal. If the operator does not cancel this charge and/or if there is no other ground upon which the appeal can be determined, I ask that my appeal be adjourned pending the Beavis case.
Thank you for your time and I look forward to hearing from you.