UKCPS ongoing parking 'charge' - ** WON AT POPLA **

[DragonFly1967]

Ok, what format does the popla code take? E.g. 3 numbers + 5 numbers etc.

 

Thanks

 

10 digits long. I think the UKCPS POPLA codes start with 876

[DragonFly1967]

I put the code into the POPLA website but there's no details of the the expiry date (?)

 

I'm planning to scan in and submit the actual ticket I bought on the day to POPLA and then use this appeal wording:

"My reasons for appealing are as follows.

 

On ##/##/2014 I paid the full amount for my day parking ticket and it was displayed correctly and in full view on my dashboard. I was given a £100 penalty charge (reduced to £60 for early payment) which I have not paid. I understand that by law UKCPS can only charge me for any 'loss of earnings' and since I paid the full amount there is zero loss of earnings and therefore the penalty charge should be cancelled."

 

Any comments?

 

Many thanks

 

Jules.

 

Jules, after you've checked your POPLA code using the site mentioned in the post above this one, try this for your POPLA appeal, it covers all the bases. Feel free to edit it as you see fit though.

 

 

 

Dear Sir/Madam,

 

I appeal against the decision of UKCPS to reject my appeal because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass as well as other matters.

 

UKCPS does not own or pay rent for the car park in question and are therefore merely agents for the landowner or legal occupier. In their Notice and in the rejection letters, UKCPS has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

 

I therefore require UKCPS to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

 

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above is the only acceptable item as evidence that a contract exists and authorises UKCPS the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

 

Any signage provided on site by UKCPS, I submit, should be seen as an 'invitation to treat' as in the case of Fisher v Bell 1961, and that without evidence of the invitation to treat having been accepted, there can be no breach of any alleged contract.

 

I further submit that any contract that UKCPS do have is not compliant with the requirements set out in the BPA Code of Practice.

 

I do not believe that UKCPS has the necessary legal capacity to enter into a contract with a driver (or Keeper) of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I humbly refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

 

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

 

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

 

In other words, they are not, as UKCPS asserts, a contractual term. If they were a contractual term, UKCPS would have to provide a VAT invoice, to provide a means of payment at the point of supply and to account to HMRC for the VAT element of the charge. I therefore assert that these requirements have not been met. It must therefore be concluded that UKCPS's charges are in fact damages, or penalties, for which UKCPS must demonstrate their actual, or genuine pre-estimate of losses, as set out above.

 

UKCPS also make reference in their appeal refusal to “paying the charge”, the only entity I seem to be able to pay is them. No correspondence or email that I have received from UKCPS makes any reference to the landlord/landowner at all.

 

Item 7.1 of the BPA code of practice makes it a requirement that UKCPS either own the land, or have the written authorisation of the landowner to enable them to operate on the land. I, as registered keeper, put UKCPS to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner.

 

It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.

 

The BPA Code of Practice indicates at paragraph 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,”

 

The parking charges for the day were paid by way of a Pay & Display ticket (copy enclosed/attached) therefore on the date of the claimed loss the amount that I was asked to pay, was paid and therefore there has been no loss arising from this incident. Neither can UKCPS lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site which would surely make up the bulk of the fee that they are asking me to pay (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICES LIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.

 

I therefore submit that there can be no loss shown whatsoever; no genuine pre-estimate of loss (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

 

So it must follow that the charge that UKCPS has attempted to levy must be punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 14 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by early payment that it is unreasonable to begin with.

 

Unlawful Penalty Charge.

 

Since there is no demonstrable loss/damage and yet a breach of contract has been alleged for the car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012). UKCPS is either charging for genuine losses or it is a penalty/fine.

 

No contract with the driver.

 

There is no contract between UKCPS and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

 

Unfair terms.

 

The charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(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." Furthermore, Regulation 5(1) states that: "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" and 5(2) states: "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."

 

Unreasonable.

 

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "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.”

 

Therefore, I as Registered Keeper would content that this appeal should be allowed for these reasons.

 

 

 

They won't read any further than the words Genuine Pre-Estimate of Loss, but it'll never hurt to throw a bit more in there for good measure.

[DragonFly1967]

Thanks for the info. Is my appeal 'worded correctly' ?

 

It'll be fine. My pet PPC "Highview" took one look at that appeal and folded before the POPLA date. They couldn't get the "we'll cancel it on this occasion" letter out fast enough. It still cost them £27 to give me my POPLA code though

 

POPLA will send your defence to UKCPS who will then have a chance to respond to it. Or a choice to run away screaming. If they respond, you'll be given a chance to respond to their response. Boy, that's a lot of responding