Is the game changing?

[peanutsallergy]

Have PPC's changed the rules?

 

Reading on a couple of other forums,

threads where the advice is "PPC's never do court",

 

they have been followed by the first time papers have been issued.

 

The old regulars seem to be sending them out as well.

 

Results to come in yet, but it's a change, and seems across the board, so maybe the BPA is behind it.

 

Even the two recent wins on defended cases have been on technicalities.

 

One was an incorrect witness statement,

one was that a "variation of contract" had been given to the customer.

 

Even though the first one is an easy fix,

the other one is particularly worrying,

that would imply the judge recognised that a contract existed.

 

Costs awarded appear to be very minimal as well, so apart from the principle here,

it may have been cheaper to pay, unless you've the time to spare.

 

And now the latest ticket reported is for £25, not the usual £80 or £90, so becoming a realistic charge as well.

 

 

Maybe we need to keep a closer eye on them.

[DBC]

What does appear to be happing is that PPCs are sending out more court papers. UKCPS and Minster Baywatch come to mind. But if you put up a good defence and say "see you in court" then the PPC will back down. In other words, court papers are being used as yet another link in the "threatogram" chain. Call their bluff and they drop the case.

[peanutsallergy]

So you've noticed more court papers too?

 

I can't say I've seen any far enough along to say they will drop the case, all the ones I've noticed in thread are recently sent out, and mostly still within the 28 days.

 

The next few months will give the game plan.

 

Hopefully "Call their bluff and they drop the case" won't be going the same way as "They never do court"

[Crocdoc]

Is there any chance we can get one of these companies to lodge a court claim in Scotland, there are people up here spewing into the porridge as we've tried and tried to get them into a court without success.

[ploddertom]

I have a thought behind this. If Joe Public contests his ticket and the usual happens where an appeal is refused, he can take it to POPLA which costs £27 +VAT & even if he loses he can still choose to ignore the PPC is out of pocket. If instead they issue an N1 thro MCOL it will cost them £30 and they stand a chance of getting a few Judgments by Default. In my view therefore instead of ignoring initially everyone should appeal, the PPC has to pay his POPLA fees every 30 days so if there were 300 then they need to pay just shy of £10k which after a while they may not have.

[peanutsallergy]

The cost is nothing in the scheme of a multi million pound business, or multi billion worldwide.

The PPC won't pay VAT, and the £27 will be written down as an expense against tax, so it's not going to be a big worry to them.

Enough punters will pay when POPLA disallow the appeal to cover the rest.

It'll be worth taking the ones that don't pay, particularly those that lose the appeal, then ignore the demands to court.

 

It'll give a good legitimacy to the PPC model, and let them produce creditable figures when they lobby the government for the next bite of the cherry.

[ericsbrother]

i'm with you on this one. if you use POPLA and then ignore the findings it gives the BPA reason to lobby parliament aying that a large proportion of naughty parkers are ignoring the finding of an "independent2 arbitrator and causing distress to landowners everywhere and something must be done about it. NOT going through POPLA leaves the legitimacy of both its procedures and the PPC's actions open to question as there is no evidence that there is a problem. They cannot quote that x parkers ingored the findings and therefore the government should give them statutory powers to defend their self interest- sorry landowners legitimate frustrations.

The real fly in the ointment for these private parking companies is that normally the car parks are there because that is what the planners have insisted upon. Watch out for changes in planning law and even more worryingly changes to the Justice and Security Bill that will limit courts hearings of Norwich Pharmacal applications (I had a PPC threaten this on me but didnt follow it through). This is where companies or individuals can ask for third party details for a wrong innocently expidited, ie where you didnt know that someone using you car had parked it in a supermarket car park contrary to some made up regulation that only applys on wednesdays) . My reading of the changes is that applications can still be made and you will be forced to hand over the details of who was driving at the time of the alleged breach of contract but you wont be able to question the use of the application or to plead that it is an inappropriate application. An unintended consequence of having a law that if you have terrorist as a neighbour but not telling the police that you suspect them you can be forced to reveal everything you know about everyone but not know who or why you are being asked.

[peanutsallergy]

I see Parking Eye are in the mix now, definitely a new game on.

[Old Snowy]

I don't see a new game, simply a variation on the old one.

 

Over the years the PPC's have managed to maintain an ascendency of sorts - more or less. For the first time in 2011 and 2012 they did not with notable victories such as that of Martin Cutts, Excel's failure to secure a NPO at Melton Mowbray; the VCS case at the various Tax Tribunals; The POFA debacle (I'm still far from convinced that PPC's actually understand what it entails and they demonstrate it with monotonous regularity) and the series of DVLA bans through 2012. If the BPA and its members were unaware that they were under scrutiny then, by 2012, they became well aware that they were.

 

This brings me to the subject of the OP. The recent court cases. I would venture to suggest that the one subject that caused more hurt than anything else over the last year was the revelation via FOI of the reality of the number of court cases. The BPA were completely on the back foot having, it seems simply stuck a pin in a table, to come up with the figures they provided to DVLA and stood motionless for several weeks like rabbits in the headlights. Their explanations were, IMO, weak and failed in any real sense to address the wide divergence between their figures and the real ones.

 

We shouldn't forget that the advent of POFA, the impact of increased DVLA scrutiny and the adverse publicity PPC World was suffering meant that, IMO, the number of cases going to court last year dropped off (I believe a further FOI request is in to the obtain the figures on the same basis of those obtained for 2011). However, with POFA now in its sixth month of operation one could reasonably have expected to see the first of the cases that have gone through the new process coming to court. Strangely, though, at least three of the cases we know about all date back to 2011. Howso? The answer to that, I'd suggest, might well be quite significant.

 

POPLA was always going to be a sideshow, with respect, that was never going to be given its head to address the fundamental legality (or otherwise) of the PPC invoicing regimes because to have done so would have undermined the entire edifice. I, for one, had argued well in advance of the formation of POPLA that the only way in which an independent appeal body could operate was for there to be an assumption that PPC invoices were an entirely legitimate mechanism. Lo! and behold that is precisely what we see in POPLA.

 

With the further VCS appeal to the Court of Appeal not due to be heard until May at the earliest - and a lot seems to hang on that decision with PPC's seemingly whistling in the dark - I'd suggest that very little has actually changed when viewed in the round. I'd suggest that someone, somewhere - maybe at the DfT, may be at the DVLA or even POPLA - is asking why, given all of the additional powers PPC's have been given, they are not availing themselves of them. I think we already know the answer to that.

 

The impact of Part III of the Justice and Security Bill on the way in which NPO's may be used seeks merely to prevent such a procedure to be used to obtain or that might reveal sensitive material - which is defined as, summarising grossly, information that is of interest to the state. Given that if there was any restriction on the use of a NPO this would only serve to restrict PPC's not the motorist. Keep in mind that POFA provides a route by which PPC's might proceed in any event without recourse to NPO's and that is with the provision of keeper liability. I fail to see where the Bill, as currently published, poses any threat whatsoever to the motorist in the way in which the poster above suggests?

 

I think the watch-words have to be: "Don't panic and carry on"

Edited March 3, 2013 by Old Snowy

[Surfer01]

POPLA has no legal standing and is paid for by the parking Companies so hardly unbiased. There is no law stating that appeals should go through POPLA. However there is contract law which may be the best option in a defence. I would simply ask PPC to supply copy of contract between PPC and LL. Also protection of Freedom Act clearly states losses LL incurred and not the losses their managing agent incurred.

[DBC]

And the PPCs are never actually able to quantify those losses if you ask about them. If they do they don't seem to be able to differentiate between day-to-day running costs and and extra actual "loss" suffered by the landowner. Somebody on here did actually ask for a breakdown and what came back included such things as rent for their office and "upkeep of the car park signs". Those weren't the landowners "losses", they were the PPC's

 

Then you have to ask the question of who the landowner is. That can be very complicated. In a retail park you have the individual stores, a managing agent and then the actual landowner, which could be something like a large pension fund or even an Oxbridge college. So it's the latter that has actually suffered any "loss", not the individual stores or the managing agent.

[peanutsallergy]

Guidance to schedule 4 of the POFA makes it simple for the county court.

 

"Where a private landowner chooses to offer or restrict parking on his/her land, he or she may make arrangements for an agent to manage and operate the land, including charging drivers for breaking parking conditions. This guide uses the term "landholder" to mean either a private landowner or an agent (or agents) properly authorised by the landowner to manage and enforce parking on the land in question. "

You can argue it's complicated, but at the end of the day the judge may believe the guidance issued by the DfT.

 

The guidance also quite clearly states contract. It then defines how a contract is formed.

It then states trespass as a separate issue.

It mentions accredited trade associations, and also stated how none members can obtain DVLA information.

 

So if a PPC can show a judge how they how complied to the "law", and show they followed the guidance, quoting the POFA 2012, that judge may well consider who's in the wrong in this case, and not simply state nothing has changed.

 

Because whether we like it or not, schedule 4 is there, and we should be preparing for that, not merely relying on the same old from before, and assuming PPCs are too stupid to prepare as well.

Because if you don't, you might miss how they are a £100 million + business, who appear to have evaded HRMC for years, never paid a CCJ, and successfully lobbied for laws to form contracts with clients that weren't even there.

[Crocdoc]

And the PPCs are never actually able to quantify those losses if you ask about them. If they do they don't seem to be able to differentiate between day-to-day running costs and and extra actual "loss" suffered by the landowner. Somebody on here did actually ask for a breakdown and what came back included such things as rent for their office and "upkeep of the car park signs". Those weren't the landowners "losses", they were the PPC's

 

Then you have to ask the question of who the landowner is. That can be very complicated. In a retail park you have the individual stores, a managing agent and then the actual landowner, which could be something like a large pension fund or even an Oxbridge college. So it's the latter that has actually suffered any "loss", not the individual stores or the managing agent.

 

I agree as collated information clearly shows that these companies point blank refuse to divulge how loss is calculated and whether or not they have contractual consent from the land owner to raise court action in the first place. This is why it has always been my view that it is better to respond as apposed to ignore. For example, if the recipient asks these questions from the outset when appealing to the company, (which we all know is a complete waste of time) the questions can of course be raised again as part of the POPLA appeal. (England and Wales only). At this stage if POPLA fail to address the very basic fundamental questions , this creates a very strong argument should court action follow bearing in mind the previous actions involving VCS and Parking Eye.

[peanutsallergy]

I agree as collated information clearly shows that these companies point blank refuse to divulge how loss is calculated and whether or not they have contractual consent from the land owner to raise court action in the first place. This is why it has always been my view that it is better to respond as apposed to ignore. For example, if the recipient asks these questions from the outset when appealing to the company, (which we all know is a complete waste of time) the questions can of course be raised again as part of the POPLA appeal. (England and Wales only). At this stage if POPLA fail to address the very basic fundamental questions , this creates a very strong argument should court action follow bearing in mind the previous actions involving VCS and Parking Eye.

 

 

What's your source of collated information?

I've not seen any yet.

All the POPLA appeals I've seen that have adressed the contract have been upheld if the PPC hasn't passed the contract to POPLA.

I would only expect POPLA to verify a contract exists though, not the detail of it.

I assume that would be for a court to decide.

[Surfer01]

Guidance to schedule 4 of the POFA makes it simple for the county court.

 

"Where a private landowner chooses to offer or restrict parking on his/her land, he or she may make arrangements for an agent to manage and operate the land, including charging drivers for breaking parking conditions. This guide uses the term "landholder" to mean either a private landowner or an agent (or agents) properly authorised by the landowner to manage and enforce parking on the land in question. "

 

I cannot find the above in the POFA relating to a PPC being able to add additional charges over and above the parking charge. Can you please identify the specific clauses in the act and not some erroneous guideline? The following definitions apply as per the Act. Please note that the act refers to "damages" on more than one occasion and not additional charges.

 

“the creditor” means a person who is for the time being entitled to recover unpaid parking charges from the driver of the vehicle;

 

relevant contract” means a contract (including a contract arising only when the vehicle was parked on the relevant land) between the driver and a person who is—

(a)the owner or occupier of the land; or

(b)authorised, under or by virtue of arrangements made by the owner or occupier of the land, to enter into a contract with the driver requiring the payment of parking charges in respect of the parking of the vehicle on the land;

 

parking charge”—

(a)in the case of a relevant obligation arising under the terms of a relevant contract, means a sum in the nature of a fee or charge, and

(b)in the case of a relevant obligation arising as a result of a trespass or other tort, means a sum in the nature of damages,

however the sum in question is described;

 

The reference in the definition of “parking charge” to a sum in the nature of damages is to a sum of which adequate notice was given to drivers of vehicles (when the vehicle was parked on the relevant land).

[peanutsallergy]

No.

 

I'm sticking to an erroneous guideline for this discussion.

 

If the judge believes the DfT guideline published by the same government that made the law it refers to is erroneous, you're onto an easy win.

 

If he asks you to prove to him why you believe the guidelines are erroneous, and why the PPC shouldn't be allowed to use them, that's the bit we need to have ready.

 

(And if you read everything you have defined, every definition agrees with what is also in the guidelines.

 

creditor

contract

parking charge

 

all there)

 

I may be gloom and doom, but I'd rather prepare for the worst, and expect the best.

 

edit

 

POFA has no problem adding over and above the initial parking charge.

 

4(b) The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper under paragraph 8(2)© or (d) or, as the case may be, 9(2)(d) (less any payments towards the unpaid parking charges which are received after the time so specified).

Edited March 3, 2013 by peanutsallergy

[steveod]

Guidance to schedule 4 of the POFA makes it simple for the county court.

 

"Where a private landowner chooses to offer or restrict parking on his/her land, he or she may make arrangements for an agent to manage and operate the land, including charging drivers for breaking parking conditions. This guide uses the term "landholder" to mean either a private landowner or an agent (or agents) properly authorised by the landowner to manage and enforce parking on the land in question. "

You can argue it's complicated, but at the end of the day the judge may believe the guidance issued by the DfT.

 

The guidance also quite clearly states contract. It then defines how a contract is formed.

It then states trespass as a separate issue.

It mentions accredited trade associations, and also stated how none members can obtain DVLA information.

 

So if a PPC can show a judge how they how complied to the "law", and show they followed the guidance, quoting the POFA 2012, that judge may well consider who's in the wrong in this case, and not simply state nothing has changed.

 

Because whether we like it or not, schedule 4 is there, and we should be preparing for that, not merely relying on the same old from before, and assuming PPCs are too stupid to prepare as well.

Because if you don't, you might miss how they are a £100 million + business, who appear to have evaded HRMC for years, never paid a CCJ, and successfully lobbied for laws to form contracts with clients that weren't even there.

 

And the guidance also stipulates that parking charges notices are for BREACH of contract. Which is not what the ppcs want, as then the charge can only be claimed for actual losses as stipulated under contract law and not an arbitrary £70 or £100 as dreamed up by the ppc or BPA. So if they want to use that in court, I say bring it on. I will pay the £1 or so loss the landowner suffered, if any

[DBC]

These are the actual words from the DFT guidelines:-

 

Charges for breaking a parking contract must be reasonable and a genuine preestimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver

 

And this from the BPA COP:-

 

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. We would not expect this amount to be more than £100. If the charge is more than this, operators must be able to justify the amount in advance.

 

Of course that £100 figure is way out of order because no landowner is going to lose that amount for one parking breach.

Edited March 3, 2013 by DBC

[peanutsallergy]

These are the actual words from the DFT guidelines:-

 

Charges for breaking a parking contract must be reasonable and a genuine preestimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. For example, to cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver.............

 

I think we're starting to go the same way now.

 

But, the bit you have quoted is preceded with

 

"A parking contract must set out the terms that apply, including the fees payable. It must also clearly set out the charges that apply if the terms of the contract are broken – for example, by parking for longer than the time paid for."

 

and also allows for different charges for different breaches,

 

"If the terms and conditions of parking contracts seek to impose charges for different types of breaches (eg for straddling two bays compared to overstaying in one bay), or for the same breaches in different car parks, consideration should be given to whether the level of loss is likely to vary accordingly."

 

So either, say as PE would argure, it's a contract, and they're merely trying to enforce it, or as other PPC's would say, it's a breach, but the penalty is reasonable.

 

Either way, you're now left to argue the contract is unfair, or the penalty is unfair.

 

Precedence set is a bank can charge at least £12 a letter, an insurer can charge £50 for a clerical ammendment to an insurance policy, purely on admin costs, for employees and offices they already have as part of their normal business. Both set by the FOS/FSA, and at least one in court.

 

And I've already seen at least 1 PPC down to a £25 charge if I remember correctly.

[steveod]

 

 

"It must also clearly set out the charges that apply if the terms of the contract are broken."

 

And this is the critical term. Contract is broken, ie breach of contract. So losses of the landowner are all that can be claimed for, not the day to day running expenses of the landowners appointed agent who would incur these day to day running costs in any event.

[steveod]

I think we're starting to go the same way now.

 

But, the bit you have quoted is preceded with

 

"A parking contract must set out the terms that apply, including the fees payable. It must also clearly set out the charges that apply if the terms of the contract are broken – for example, by parking for longer than the time paid for."

 

and also allows for different charges for different breaches,

 

"If the terms and conditions of parking contracts seek to impose charges for different types of breaches (eg for straddling two bays compared to overstaying in one bay), or for the same breaches in different car parks, consideration should be given to whether the level of loss is likely to vary accordingly."

 

So either, say as PE would argure, it's a contract, and they're merely trying to enforce it, or as other PPC's would say, it's a breach, but the penalty is reasonable.

 

Either way, you're now left to argue the contract is unfair, or the penalty is unfair.

 

Precedence set is a bank can charge at least £12 a letter, an insurer can charge £50 for a clerical ammendment to an insurance policy, purely on admin costs, for employees and offices they already have as part of their normal business. Both set by the FOS/FSA, and at least one in court.

 

And I've already seen at least 1 PPC down to a £25 charge if I remember correctly.

 

 

And the precedence set to the bank charges are only because these form a core part of their income and charging structure and so was ruled that the charges formed a pricing term of the contract. The same cannot be held with the majority of parking charges as these do not form a core part of the contract with the landowner. Asda for instance do not make any money from the parking charge notices and thus these do not form a core element of any supposed contract.

[peanutsallergy]

And this is the critical term. Contract is broken, ie breach of contract. So losses of the landowner are all that can be claimed for, not the day to day running expenses of the landowners appointed agent who would incur these day to day running costs in any event.

 

It's ok keep saying that, but if the PPC quotes a specific piece of legislation that allows him to

 

".... cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges."

 

and cites examples where £12 a letter has been deemed fair, or £50 to type an adress in a computer is acceptable, what's your response to thhe judge?

AS DBC pointed out originally, POFA specifically allows costs to be added onto the unpaid charge, and just becuase we believe the costs shouldn't even include the price of a stamp, POFA doesn't agree. Will the judge?

[peanutsallergy]

And the precedence set to the bank charges are only because these form a core part of their income and charging structure and so was ruled that the charges formed a pricing term of the contract. The same cannot be held with the majority of parking charges as these do not form a core part of the contract with the landowner. Asda for instance do not make any money from the parking charge notices and thus these do not form a core element of any supposed contract.

 

Put your money on a county court judge buying that?

 

(Do you have a copy of the PPC/Asda contact you are referring to?)

[steveod]

It's ok keep saying that, but if the PPC quotes a specific piece of legislation that allows him to

 

".... cover the unpaid charges and the administrative costs associated with issuing the ticket to recover the charges."

 

and cites examples where £12 a letter has been deemed fair, or £50 to type an adress in a computer is acceptable, what's your response to thhe judge?

AS DBC pointed out originally, POFA specifically allows costs to be added onto the unpaid charge, and just becuase we believe the costs shouldn't even include the price of a stamp, POFA doesn't agree. Will the judge?

 

I think you are misinterpreting the entire point of pofa. It's entire legislative purpose, as mentioned by the home office minister, and stated in Hansard, is not to change basic contract law....and it states in numerous guidance that it is a contract, and by implication subject to normal contract law....is to provide registered keeper liability to pay the parking charge in the event the driver cannot be identified and only if a valid contract was formed. Nothing more, nothing less.

[Surfer01]

I think you are misinterpreting the entire point of pofa. It's entire legislative purpose, as mentioned by the home office minister, and stated in Hansard, is not to change basic contract law....and it states in numerous guidance that it is a contract, and by implication subject to normal contract law....is to provide registered keeper liability to pay the parking charge in the event the driver cannot be identified and only if a valid contract was formed. Nothing more, nothing less.

 

I agree with your train of thought.