APCOA parking charge from Huntingdon station car park

A question about : APCOA parking charge from Huntingdon station car park

On 23rd Dec we parked in Huntingdon station car park at 0930, bought a ticket and set off to London on the train. When we returned in the evening we had a notice on the windscreen offering an opportunity to pay 85 quid, reduced to 50 for prompt payment.

Turns out that the ticket that was bought was an offpeak price of 5 quid, rather than the peak 5.50 one. The expiry printed on it was 0200, sadly around 7 hours before the ticket was actually purchased.

My wife was panicking about the ticket, so we sent a letter to APCOA appealing as the keeper, taking the text from the example in the sticky thread.

Our appeal was rejected (as expected) and we now have a POPLA code. and another invitation to pay 85 quid or 50 if we're quick.

I would welcome some help with filling in the POPLA form.

1. The form has sections for name and address, and I'm assuming that we fill this in as keeper, although there is nowhere to note that is the case.
2. There are several tick boxes about the reason for the appeal. The vehicle was not improperly parked (not relevant). The vehicle was stolen (not true). The parking charge (ticket) exceeded the appropriate amount (could this be the one ?). I am not liable for the parking charge (perhaps this one ?).
3. There is a box for reasons - is this a place to explain about the ticket machine selling an already expired ticket and the fact that the purchased ticket was only 50p less than the peak rate charge?

The rejection letter indicates 'APCOA is not liable to justify the charge as set out in section 19.5 of the BPA guidelines' and then quotes the bit about charges not expected to be more than 100 quid.

There is an assertion that 'the sum, and calculations which have been made in setting it, have been approved and agreed by the landowner'. Not sure how this is in any way relevant ?

Also 'notices on private land are issued in accordance to British Parking Association guidelinesand APCOA being an approved operator of BPA is authorised to issue notices on behalf of the landowner' Not sure this is relevant either ?

There is a statement that the charge will be Ј85 if we choose arbitration, which I guess is a frightener.
This is followed up by a frightener about debt recovery if we do nothing, followed by court proceedings. At present I'm ignoring these, as I don't intend to do nothing.

I'd welcome your help with the appeal !

EngineerMan

Best answers:

• 1. Yes, appeal as keeper.
  2. Tick all the boxes except "stolen". Seriously.
  3. Don't bother with "what happened", PoPLA will not be interested. Read the sticky thread again, which links to a number of PoPLA appeals (probably including an APCOA railway station appeal). Use the usual legal, technical appeal points which are known winners.
  APCOA can bleat all they like about not being required to justify the charges, but if you state that the charge is not a GPEOL then PoPLA will disagree with APCOA and will require the charge to be justified (which it can't be because it isn't).
  Simply ignore all the APCOA carp you've quoted and get a standard appeal in.
• That's it in a nutshell. Do exactly as Bazster has advised and don't overthing things. You put in all the appeal points and make the PPC prove otherwise, which they can't. Don't do their job for them.
• OK, thanks for confirming that - I'll crack on with the standard POPLA letter.
• OK, so I've looked at the standard POPLA letters, and made a few edits to the text below.
  After earache from my wife about the initial PCN that had been received on our car, I caved in and appealed to APCOA as the keeper before the NTK arrived. She was satisfied that something was being done then !
  As shown on APCOA's website, a ticket was displayed in the car, and I know it was purchased at around 0930 for five pounds - sadly it indicated an expiry of 0200, over seven hours before purchase ! Apparently the correct ticket would have cost Ј5.60, indicating a loss of 60 pence. I'm not sure if this should be acknowledged in the letter to POPLA, or if the 0930 knowledge would indicate that I know the driver ?
  The signs at the entrance to the carpark are prominent, clean and clearly printed. Is it still relevant to claim that I didn't see them or they were not clear enough ? I took this paragraph out as it seems just obvious padding of the claim ?
  I guess this leaves me (as keeper) with the following :
  Dear POPLA,
  I am the registered keeper of the above vehicle and I am not liable for this PCN. I wish to appeal on the grounds numbered 1 - 4 as outlined below:
  1) The Charge is not a genuine pre-estimate of loss
  APCOA’s charge represents liquidated damages for breach, so it must be a pre-estimate of reasonably likely losses flowing from an average breach in order to be potentially enforceable. APCOA cannot demonstrate any initial loss caused by the parking event and even if they do try to suggest a small initial loss this does not give them carte blanche to then add on multiple costs that happen to match the inflated PCN sum. The fact is, they would have been in the same position had the parking charge notice not been issued, and would have many of the same business and staff/salary overheads even if no vehicles breached any terms at all.
  In this case, even if the Operator contends there was a small outstanding P&D sum, they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event. An Operator cannot reasonably include in a GPEOL calculation, 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.
  Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:
  "[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation. [15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do... [16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home... [17] It follows that the claims must be dismissed’’
  [link as per std letter - can't post it]
  In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely in the vast majority of cases.
  Further, if APCOA claim there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put APCOA to strict proof that a GPEOL was ever discussed and decided for this contravention in this car park. This must include documentary evidence of a meeting with their client or contemporaneous notes or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event.
  2) Lack of standing/authority - APCOA have been shown in their failed small claims, to have no rights or authority from a Landowner
  BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put APCOA to strict proof of the contract terms with the actual landowner (not another agent as they are not the landholder). APCOA has no legal status to enforce this charge because there is neither assignment of rights to pursue PCNs in the courts in its own name nor standing to form contracts with drivers itself. I require APCOA to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the BPA Code of Practice and does not allow APCOA (specifically) to issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority. APCOA have previously failed in their only attempted small claims in 2014 when it was exposed that only their principal (a Hospital) had the right to start court proceedings, and APCOA were merely a paid agent with no rights nor further authority.
  3) Non compliant PCN - no keeper liability established under POFA2 2012
  On the PCN, the 'period of parking' is not shown, only the time of issue. In addition, the wording makes this a non-compliant NTK under the POFA 2012, Schedule 4.
  Schedule 4 para8(1): 'A notice which is to be relied on as a {NTK is given} if the following requirements are met. (2)The notice must—
  (a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates.
  The NTK is a nullity so no keeper liability exists.
  4) Unreasonable/Unfair Terms
  I would assert that the charge being claimed by APCOA is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999'(UTCCR 1999): ''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...''
  Test of fairness:
  ''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.
  5.1 Unfair terms are not enforceable against the consumer.
  9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''
  The charge that was levied is an unfair term (and therefore not binding) pursuant to the UTCCR 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:
  '18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.
  Schedule 2 of the 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".
  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.”
  I contend it is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by the act of parking. I put this Operator to strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to my detriment and to justify that the charge does not breach the UTCCRs and UCT Act and the Consumer Contract (Information, Cancellation and Additional Payments) Regs 2013. These latter Regs require specific detailed information to be supplied by traders, by durable medium, as well as ensuring the consumer has given 'express consent' to any contract before it is performed - otherwise (unless among the stated exemptions, which a parking contract is not) any trader-consumer contract is now unenforceable and able to be cancelled by the consumer, even after the event.
  If this appeal is not successful then I hereby give notice to APCOA that I cancel the contract alleged because they have failed to meet the requirements of the new Regulations.
  Yours faithfully,
• I'd welcome comments on the letter text before I send it in. Specifically, knowing that the signs are clearly visible, should I remove the signage paragraph ?
  I know there was a ticket purchased at 0930, unfortunately for Ј5 not Ј5.60 - should I mention this, or does that pretty much admit to knowing the driver ?
  EngineerMan
• Turns out that the ticket that was bought was an offpeak price of 5 quid, rather than the peak 5.50 one. The expiry printed on it was 0200, sadly around 7 hours before the ticket was actually purchased.
  Are you saying that the PPC sold you a ticket at 9.30 am which had expired several hours earlier? Surely that is a matter for Trading Standards.
• Never remove the signage paragraph, just amend to suit, talking about confusing wording/too much wording or something.
• Yes, 'The Deep' the ticket that was purchased at approx 0930 had expired at 0200. The ticket was not inspected before putting in the car, as it was believed to be correct.
  I'm not sure I have time for trading standards, I'm struggling to find time to deal with the PCN !
  Thanks 'Coupon Mad', I'll pop it back in.
• in a POPLA appeal, should the RK include any details of the incorrect ticket being bought, or is that admitting to knowing the driver ?
  EngineerMan
• OK, so how about this as a signage paragraph ?
  2) Lack of signage - no contract with driver
  The sign at the entrance is unlit, so that in the morning darkness when the car was parked it was not readily visible. I put APCOA to strict proof otherwise; as well as a site map they must show photos in darkness taken without a camera flash. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms. The driver did not have an opportunity to read the sign at the entrance; there was no consideration/acceptance and no contract agreed between the parties.
  The sign also breaches the BPA CoP Appendix B which effectively renders it unable to form a contract with a driver in the hours of darkness: ''Signs should be readable and understandable at all times, including during the hours of darkness...when parking enforcement activity takes place at those times. This can be achieved...by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit...should be made of a retro-reflective material similar to that used on public roads''.
• I've received APCOA's pack now, and read through it. There are a few points I've noted, but I'm sure that people more expert than me will spot more.
  They indicate that the registered keeper address was provided by the driver - which is not true. At no point has any information been provided to APCOA regarding the driver of the vehicle.
  The 'other evidence' provided does include a letter from Thameslink about authority, and loads of info about signs and maps. They indicate that they believe that I need to prove that the amount of the PCN is not a GPEOL, although they have indicated how a cost of 98 could be justified (standard terms though, as in this case they did not need to contact DVLA for details.)
  They have not answered the point raised in my POPLA letter regarding the requirment for them to indicate the period of parking - and this is my major frustration with this entire process- the ticket machine issued a ticket that had expired several hours before purchase, and we didn't notice. The ticket has a serial number that is visible in their photos, and I would assume that this could be referenced to a time of purchase. There is no method at any stage for querying this.
  I can't post a link, but if you add the necessary for a secure website to the beginning of this it should work.
  dropbox.com/s/9w6mu8yvm8joocs/POPLA%20PACK-0510075503.pdf?dl=0
  Do I now simply wait for the POPLA decision ?
  Tim
• Best to send a rebuttal to their evidence, especially the point about keeper/driver and to their GPEoL calculation - you don't need to prove it's not, they need to prove it is. (But anyway Mr. POPLA, here's why it isn't a GPEoL........)