Right, here is my latest version! I am starting to feel a little more confident about this
Relevant Documents:
1. Notice to Keeper served by Capital 2 Coast Security Ltd on the registered keeper (attached)
2. My appeal to Capital 2 Coast Security Ltd against the parking charge (not attached because it was submitted via an online form and a copy was not issued to me. I propose Capital 2 Coast Security can provide this if needed)
3. Letter from Capital 2 Coast Security Ltd rejecting my appeal (attached)
4. BPA Ltd Code of Practice (not attached)
5. A recent landmark POPLA ruling which supports the appellants claim that the charge is unenforceable because it is not an actual or genuine pre-estimate of loss resulting from the alleged breach of contract (attached)
Alleged Infringement
The Respondent alleges that, on 31-05-2013, the driver of a vehicle registration number xxxxxx, of which I am the Registered Keeper, was parked in breach of the terms and conditions and as such a Parking Charge is due. A Notice to Keeper (NTK) with the identity xxxxxx was received by the Keeper on 31-05-2013, the same day of the event.
Grounds for appeal:
1. Abuse of purpose
It would seem that the intent of the landowner using a parking enforcement company would be to stop misuse of the car park, that is to say to ensure that those parking are entitled to do so. I provided evidence in my appeal that were were indeed using the car park legitimately, as invited guests. We were given a permit which we did display visibly in our car. Human error meant that the permit was not completed correctly, but we were in possession of the correct permit, as provided by the landowner. Given the authorised nature of our use of the car park it seems frankly unfair and an abuse of power, to the end of financial gain, to not overturn this charge. To insist upon a charge, a hugely disproportionate charge at that, despite our authorised usage of the car park is an abuse of power and purpose.
2. Misrepresentation of authority
The parking charge was entitled a Fixed Charged Notice. The work fixed is akin to council/police tickets which, unlike this charge, do have a statutory backing. I suggest that this is a misrepresentation of authority as detailed in section 14 of the Code of Practice.
3. Failure to comply with BPA Code of Practice
Capital 2 Coast did not respond to my appeal with their decision until some 65 days after I submitted my appeal to them (see their attached response for details). This hugely exceeds the 35 days outlined in the BPA Code of Practice as the time frame in which they must make a decision on any appeals. I suggest that I not be held to Capital 2 Coasts unreasonable charges if they themselves are not holding themselves to their regulators Code of Practice.
4. Singage and unreasonable charges
The claim is unwarranted and disproportionate. The claim must be a genuine pre-estimate of losses and the operator needs to prove this. This loss must be attributable to the parking event (and not just operator costs since the cost would not be affected by the appellant parking there or not). There was no loss to any party, certainly no loss justifying such a disproportionate claim I therefore conclude that I cannot be liable for this charge.
The signage states that a parking charge notice would be issued for a ‘failure to comply’ with the terms of parking. This wording clearly indicates that the parking charge represents damages for a breach of the parking contract. Accordingly, the parking charge must be a genuine pre-estimate of loss. The parking charge is punitive. It does not represent a genuine pre-estimate of liquidated damages and is therefore an unlawful penalty charge. For example, had I not been invited to use this car park on the afternoon of 31 May 2013, I could have parked in a council owned car park only a few minutes walk away for a charge of no more than £4. Capital 2 Coast Security Ltd claims that its charges are in line with the BPA Ltd Code of Practice (CoP). Whilst the BPA Ltd CoP states that operator must justify in advance any parking charge over £100, it does not automatically follow that any charge which is £100 or under is justified. The respondent, Capital 2 Coast Security Ltd, also claims that it’s charges have been held to be enforceable in other cases but has failed to produce any reasonable evidence to justify this particular parking charge. Losses caused by breaches of a parking contract may vary depending on the nature of the breach and the car park. The fact that a parking charge at a certain level is held not to be a penalty in one car park does not mean that the same sum is a pre-estimate of loss caused in every car park.
It is my assertion that the parking charge is punitive and an unenforceable penalty and the
Respondent has not provided any evidence as to how and why this parking charge is a genuine pre-estimate of loss. It is not sufficient to simply list the names of previous cases without applying them to this case. Furthermore there has been no conceivable loss to the landowner through my legitimate use of the car park.
5. No contractual authority
The Respondent has not provided me with any evidence that it is lawfully entitled to demand money from the driver. That is to say, that it has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, it is the properly appointed agent of the landowner or has been properly authorised by the landowner to recover unpaid parking charges from a driver. Accordingly, the Respondent should be required to provide a copy (to both POPLA and myself) of;
1. Its contract with the owner of the land on which the car park is situated
2. Evidence of the land ownership of the party with whom the Respondent has contracted
3. A “Purchase Order” incorporating this car park into that contract in the event that that contract is a framework agreement within, say, the next fourteen days. In the alternative, if the Respondent is the owner of the land then it should evidence that ownership within the same time period. If the Respondent is unable or unwilling to do so, then it should not be permitted to offer any evidence in this appeal. The Appellant reserves the right to provide further representations in this appeal upon considering the evidence that has been requested. It is submitted that without such evidence the Appellants’ position is prejudiced by being unable to properly challenge the Respondents’ position. POPLA is operated by the London Councils under a contract it has with the BPA. As such it will be governed by the Human Rights Act, and in particular Article 6. That article requires that an Appellant must
have a real opportunity to present his or her case or challenge the case against them. This will require access to a Respondents’ submissions, procedural equality, and generally requires access to evidence relied on by the other party.
In summary:
1. I was parked with the landowners permission;
2. It is my assertion that the respondent has used language which is a misrepresentation of authority;
3. The respondent has failed to comply with BPA Code of Practice;
4. The claim is unwarranted and disproportionate. The claim must be a genuine pre-estimate of losses and the operator needs to prove this. This loss must be attributable to the parking event (and not just operator costs since the cost would not be affected by the appellant parking there or not). There was no loss to any party, certainly no loss justifying such a disproportionate claim. I therefore conclude that I cannot be liable for this charge;
5. I question the respondents claim to have the right to charge me.