BPA and Losses

[DBC]

A few days ago I complained to the BPA about Parking Eye's letters which try to justify they so-called pre-estimate of loss by including all their day-to-day running expenses and fixed costs. Believe it or not, this is the idiotic reply I received back:-

 

Thank you for your e-mail.

 

Please be advised Parking Eye are within their rights in regards to their parking charge notices and their pre-estimate of loss.

 

Parking Eye would have calculated the sum as a genuine pre-estimate of their losses as they incur significant costs in managing the parking location to ensure compliance to the stated terms and conditions and to follow up on any breaches of these identified, including but not restricted to the following examples:

 

· Employment of parking attendants to patrol the parking location to include supervisory staff and vehicles, training, uniforms, etc.

· Ad-hoc mobile patrols of the parking location

· Supply & installation ANPR equipment, monitoring and maintenance

· Erection and maintenance of the site signage

· Parking payment and enforcement equipment to include the pay & display machines, hand held devices, cameras, etc.

· Membership and other fees requiring payment in order to manage the business effectively including those paid to BPA, DVLA and ICO

· General costs including stationery, postage etc

· Employment of office based administrative staff along with systems and software

· Contribution to Head Office overheads

 

Please note that this sum will be clearly laid out on the signage at the parking location which offers the parking contract to the motorist, and by remaining at the site, Parking Eye will contend that the motorist has accepted all of the prevailing terms and conditions of that contract including the charges for breach of contract, and furthermore accepts that they are reasonable.

 

We do not feel it is right to seek to change the terms of an established contract after it has been breached. If the motorist was unhappy with the contract terms, then the motorist should not have remained at the location.

 

Parking Eye’s breakdown of costs does not breach our code of practice and therefore we are unable to investigate the matter further.

 

Thank you for bringing this matter to our attention.

 

Kind regards,

 

AOS Investigations Team

 

 

I think somebody needs some basic education on company finance and the difference between losses and costs.

[citizenB]

But isn't that exactly what the Judge said THEY couldn't claim ?

[DBC]

But isn't that exactly what the Judge said THEY couldn't claim ?

 

Exactly:-

 

MISS COATES: ... this is our losses.

 

JUDGE McILWAINE: No, they are not your losses. They are the costs of your pursuance of

this case, is it not?

 

MISS COATES: If the driver of the vehicle is to pay up within 14 days it only costs us the £80

whereas if it is pursued after 14 days and they have not paid up , it costs £120.

 

JUDGE McILWAINE: Okay. Let's have a look here. Image processing costs you £2 per item,

image transfer costs you 52 pence, PCN costs, costs you 62 pence, a wallet costs you 37 pence and a

PA uniform ... What is a P A uniform?

 

MISS COATES: The uniform ofthe parking attendant on site.

 

JUDGE McILWAINE: What has that got to do with this gentleman's parking? That is a cost to

the business , is it not?

 

MISS COATES: That is the overall cost of issuing a parking charge notice.

 

JUDGE McILWAINE: No , it is not. It is a cost to the business. Do you claim tax against the

uniforms provided to staff?

 

MISS COATES: I cannot answer that question.

 

JUDGE MciLWAINE: I am afraid if you are not, you need a new accountant. Let us have a

look a little bit further on, shall we? Office provision , rates , insurance, service charge, are they costs

to the business? It is your evidence. You tell me.

 

MISS COATES: These are what we believe are our costs for having to issue a parking charge

notice or the portion that was attributed to issuing a parking charge notice.

 

JUDGE McILWAINE: That would depend upon how many notices are issued and at how many

sites, over how long and what your income and expenditure is, and I am certainly not going to go into

a detailed analysis of your company accounts. That is not my job. Mr Ibbotson says, if I find that

your case is correct, that the amount I should award should reflect the loss of the space that he took,

not his contribution to the running of your business. That has , I think, on any interpretation a degree

of force, does it not?

 

MISS COATES : Had Mr Ibbotson not parked in breach of the terms and conditions of Wickes'

car park we would not have had to issue the parking charge notice.

 

JUDGE McILWAINE: I hear what you say about a contract. The point is about the amount of

damages. The point that Mr Ibbotson has raised is that it is a penalty. You say, "No, it is a pre-agreed

amount of loss". I have looked at the figures which you say are the pre-agreed amount of loss and a

lot of them are , frankly , the costs of the business which are tax deductible or can be written off against

profit, so I again come back to where is your loss , and we will come back to that in a minute because

Mr Ibbotson .. . Is there anything else you would like to say ?

 

MISS COATES: No, sir.

Edited July 27, 2013 by Conniff

[Conniff]

It's because they 'are' the parking companies so that makes them not only thick, but biased as well.

 

I think I would be inclined to write back to them and point out just how stupid their letter is and I wouldn't hold back on the language save swearing.

 

I expect you have already read the PE threads, so take some of the things from there and hit them with it. I wouldn't just let that rest.

 

There you go, DBC has given you a great script to include.

Edited July 27, 2013 by Conniff

[DBC]

I have already written back to the original AOS member pointing out the error of his ways and have even included the OED definition of "loss". I addition I have made a complaint to the BPA about that original email and have suggested they have somebody with more knowledge of contract law take a look at the case. Finally I have included the above Ibbotson v VCS quote shown above for good measure.

[Crocdoc]

The Department of Transport state the following

 

Charges for breaking a parking contract must be reasonable and a genuine pre-estimate 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.

 

The BPA version not surprisingly varies considerably

 

Parking charges issued under the law of contract must be reasonable and not excessive, and must be a genuine pre estimate of loss to reflect the operator’s costs in running their parking operation. The charges can be recouped in two ways – as a breach of a contract term (where a driver has parked incorrectly across two marked bays for example), or as an agreed charge as a part of a tariff (for overstaying in a free car park for example). If those charges are considered to be excessive in a court of law, they will be judged to be a penalty and will not be upheld.

 

In a recent radio debate involving a employee of CAB and a member of the Scottish Parliament(Colin Beattie), Mr Kelvin Reynolds was asked how the level of charge could reduce in real terms the longer of overstay.

 

Response

 

I don't know

 

Mr Reynolds when questioned by the elected member about transparency, agreed that this was an important factor

 

Whenever you want to ask a relevant question through the BPA, e-mail your question through a member of parliament.

 

I am not sure that the BPA are that switched on as collated information shows that they contradict themselves on many issues.

 

Furthermore, I don't actually think that they know that some retailers refer to their charges as penalties, however give them enough rope.

 

Just one more point.

 

If A BPA MEMBER SUGGESTS THAT THE FEE FOR OVERSTAY IS THE CHARGE FOR PARKING BEYOND THE PERMITTED FREE PERIOD, IT COULD BE ARGUED THAT BPA MEMBERS ARE OFFERING THE CHEAPEST HOLIDAY OR LONG STAY PARKING AVAILABLE.

 

ACCORDING TO THE BPA CODE OF PRACTICE, YOU ARE ALSO ENTITLED TO A 40% REDUCTION FOR EARLY PAYMENT.

Edited July 27, 2013 by Crocdoc
%

[Liverpool way]

I have already written back to the original AOS member pointing out the error of his ways and have even included the OED definition of "loss". I addition I have made a complaint to the BPA about that original email and have suggested they have somebody with more knowledge of contract law take a look at the case. Finally I have included the above Ibbotson v VCS quote shown above for good measure.

 

The BPA is an absolute farce.........The members on its board are all elected from private parking companies...........Hello Gary Osner from Roxburghe Debt Collectors!!!!!!!

 

:brushteeth::brushteeth::brushteeth::brushteeth:

[Scouse Magic]

I agree, I have already seen the full members elect list for the BPA which includes Roxburghe... Infact the whole list smells of a PPC xmas party....Appeals to the BPA have about as much chance of success as shergar ever being found...Then trying to reason with them or complain about a PPC...One may as well talk about the air speed velocity of a unlaiden swallow.....Parking Eye wont be lasting very long once boycotts, complaints to retailers and loss of business takes it toll :violin:

Im sure the patrol men do look very smart in their uniforms, unfortunately the company are entitled to F.A.

[Liverpool way]

Yes you are correct...now stop posting on here, you are cramping my style........... Jamie from Parking Eye.

 

:yield::yield::yield:

[lamma]

For interest see how many Directors there are at the BPA, then ponder awhile on why.....

[Scouse Magic]

Ive seen a list of names but dont really know who they are

Edited August 2, 2013 by Scouse Magic

[lamma]

Sites such as duedil can show if they are directors of other firms. But the issue I raised was the number of directors not their identities per se. For example consider director emoluments. And how such a large 'board' could manage the company, patently they are not directors who manage so why are they directors.

[DBC]

I have now received a response from the BPA over my complaint about their initial repley (see above) which confuses costs with losses. This is their reply, As you see they still don't get it:-

Thanks for your note which has been referred to me as someone who is ‘more conversant with the difference between "losses" and "costs" ‘

We contend that the genuine pre-estimate of loss incurred by the parking operators should include those costs incurred in managing the parking location to ensure compliance to the stated terms and conditions and to follow up on any breaches of these identified – I know that we will disagree on this point. One thing we should agree on though is that if everyone paid to park where they should and didn’t park where they shouldn’t, there would be no need for these costs to be incurred by the operators and/or the landowners.

I am fully aware of the VCS vs Ibbotson case that you refer to but as I am sure you appreciate, the judgment in this case does not create precedent and we should let the Courts decide these matters on a case-by-case basis.

Finally I would contend that the ‘parking contract’ is offered on the site signage and the contractual terms including any charge for breach of the ‘parking contract’ are clearly outlined. I find it somewhat incongruous that a motorist complains about a term/condition that they don’t like, after they have breached the ‘parking contract’. If they don’t like the terms and conditions why accept them by staying at the location in the first place.

Kind regards

Steve Clark

Head of Operational Services

 

I am going to reply to this with this from the OFT:-

 

From Office of Fair Trading (http://www.oft.gov.uk/shared_oft/freedom_o...-FOIA-135010.pdf) page 2:-

 

"The OFT expressed the view to the BPA that when claiming liquidated

damages, they must meet the requirement of being a genuine pre

estimate of loss. If back office functions are claimed, these must be

directly caused by the breaches of contract. The OFT’s view was that if

you have an office anyway and have to pay rent, rates, insurance, etc.,

this cannot be attributed to the breach and claimed as costs, as these are

the costs of running a parking management company. To be recoverable,

all costs, whether in contract or tort, must be caused by the breach".

Edited August 5, 2013 by DBC

[Scouse Magic]

Nice one DCB !

 

That sounds like a typical BPA response....These companies if you can call them that, just want to fleece people shopping at these sites because they smell money and some people give in under duress and pay these vampires of society.. They refer to Ibbottson as just one case, there are plenty of others such as VCS V HMRC in the high court....If we didnt park there in the first place then the retailers would go out of business as no one would shop there....

 

I note on the BPA code of practice it states that when you receive a challenge to a PCN you must stop escalation work and investigate and respond within 35 days....Theses companies just continue to fire out threatograms......Take em all to court I say

[DBC]

To follow through BPA's interpretation of losses, what if somebody heaved a brick through my window and I sued that person? According to the BPA, not only can I sue that person for the cost of repair to the window (and any subsidiary damage caused by the window breaking), I can also include the "running costs" of my house. So I can claim for gas, water and electricity bills and council tax . I might give that a try.

Edited August 6, 2013 by DBC

[Scouse Magic]

Well how lovely....... The trouble is you have more of a chance platting sawdust than getting the BPA to admit that these costs are business costs and not recoverable in law, especially with people like Gary Osner of Roxburghe on the board of the BPA...We cannot reason with the very people who are trying to rip millions of people off

[steel guitar]

Really I don't see how these are losses. O.K. so they have bought ANPR cameras. signs, ticket machines, uniforms e.t.c. but they still own those items so they own their intrinsic value. They have not "lost" anything, just that the value has been transferred from cash to these items.

[DBC]

I don't know if the BPA and PPCs are just being stupid or are deliberately being "economical with the truth" over this. Lets face it, if they admitted that they can only claim for actual losses then the whole PPC "business model" would collapse because they would never make a profit.

[lamma]

If no one used the car park for a day, or a week, or a month, they would still be paying those fixed costs. QED. The PPC would be 'losing' money but as no vehicles were using the car park it is impossible that such 'losses' are consequent to the presence of a vehicle and so IMO are not claimable for a purported breach/trespass.

[DBC]

I like this from the BPA's reply:-

 

I am fully aware of the VCS vs Ibbotson case that you refer to but as I am sure you appreciate, the judgment in this case does not create precedent and we should let the Courts decide these matters on a case-by-case basis.

 

If that's the case, why do so many PPC's keep citing the couple of cases won by them to try and persuade motorists just to give in and pay up?

[DBC]

Yet another reply from the BPA. They still don't get it do they?:-

Thanks for your note.

Sorry but I don't agree that we are going against OFT advice.

As I read it more general costs can be included proportionately if they would have occurred if breaches of the parking terms & conditions happen - which as we both know is most definitely the case.

As I have said before, it is for the Courts to ultimately decide what can be included - and I trust them to reach the right conclusions.

Regards

Steve Clark

[steveod]

I have now received a response from the BPA over my

complaint about their initial repley (see above) which confuses costs with

losses. This is their reply, As you see they still don't get it:-

 

 

Thanks for your note which has been referred to

me as someone who is ‘more conversant with the difference between

"losses" and "costs" ‘

 

 

We contend that the genuine pre-estimate of loss

incurred by the parking operators should include those costs incurred in managing the parking location to ensure

compliance to the stated terms and conditions and to follow up on any breaches

of these identified – I know that we will disagree on this point. One thing we

should agree on though is that if everyone paid to park where they should and

didn’t park where they shouldn’t, there would be no need for these costs to be

incurred by the operators and/or the landowners.

 

 

I am fully aware of the VCS vs Ibbotson case

that you refer to but as I am sure you appreciate, the judgment in this case

does not create precedent and we should let the Courts decide these matters on

a case-by-case basis.

 

 

Finally I would contend that the ‘parking

contract’ is offered on the site signage and the contractual terms including

any charge for breach of the ‘parking contract’ are clearly outlined. I find it

somewhat incongruous that a motorist complains about a term/condition that they

don’t like, after they have breached the ‘parking contract’. If they don’t like

the terms and conditions why accept them by staying at the location in the

first place.

 

 

Kind regards

 

 

Steve Clark

 

 

Head of Operational Services

 

and that is why I cannot wait until I finally get one of these PPCs to take me to small claims - they keep cancelling the parking charges after I appeal - especially as I always inform I will counter suit both the PPC and landowner for misrepresentation and attempted unjustified enrichment. And should any small claims judge be fooled into buying the validity and legality of the PPCs claims as regards UTCCR and penalties etc, then I cant wait for the high court. I will definitely put up a few thousands that i know I will get back in costs to set the precedent and close down their whole stinking operation.

Edited August 9, 2013 by citizenB
restored quote box

[Ell-enn]

If no one used the car park for a day, or a week, or a month, they would still be paying those fixed costs. QED. The PPC would be 'losing' money but as no vehicles were using the car park it is impossible that such 'losses' are consequent to the presence of a vehicle and so IMO are not claimable for a purported breach/trespass.

 

 

That's exactly my argument - anyway, the only person who can suffer a loss from the breach is the landowner isn't it? and if the car park is free then he has suffered no loss.....................

[esmerobbo]

Can we assume then that these companies don't claim such items as CCTV cameras, uniforms and signage as running costs in their annual return ????????

[DBC]

As for this from the BPA Ltd:-

I am fully aware of the VCS vs Ibbotson case that you refer to but as I am sure you appreciate, the judgment in this case does not create precedent and we should let the Courts decide these matters on a case-by-case basis.

 

It's funny that PPCs are fond of quoting the very rare cases they have won to try to fool motorists that some sort of precedent has been set.