Devere Parking - POPLA Appeal Failed - Court Papers Now Received.

[ericsbrother]

Read all of the threads here mentioning it and you will see what it is about.

 

Another thing you can do is ask whether your company rents parking spaces as part of its agreement

or has allocated or permitted parking in a general area.

 

If your co has its own parking spaces as part of its agreemnt with the landowner

then the conditions of parking agreed between devere and the LL do not apply as your company is the OCCUPIER and has supremacy of contract.

 

The difference is with permitted parking the LL retains rights over the land

but if the parking is allocated as part of the lease of the building then those rights are transferred

and the contract with devere is null and void as it is not with your company who hold the interest in the land.

[ericsbrother]

It would be in your company's interests to help you out with this and if they are a bit non-commital you could ask to show you the contract as you will need it as part of your defence.

[dizness]

I don't work for them any longer but I have been in contact and they tell me that they have to abide by the landowners requests- they were quite vague which leads me to wonder if there is such a contract in place between LL and DV. We used to have loads of spaces and then as we reduced office space we lost some however still had the greatest number of spaces. I am requesting the contract or information from the landowners. I have been through the thread and prepared bullet point defence for submission before 3 June.

[Bandit127]

I would recommend that you post the Particulars of Claim (POC) and your defence up for review.

 

I don't know how much you know about the process. Do you know about the Civil Procedure Rules and how to abide by them?

 

Unless you employ a solicitor, you will be a Litigant in Person so some allowance will be made. However, failure to follow the rules risks judgement by default. In that case, they win and you lose, no matter how good your arguments are.

 

The members of this forum much better qualified than I (I know no more than is contained in this post, so please don't ask me!) will help you through every step of the way of you want them to. Don't be shy to ask about anything you are not sure of.

[dizness]

Thank you Bandit I am positing this to ericsbrother on Bandit's advice I would be pleased for you to look over this, this I spent sometime just doing the bullets and drafting letters reading etc I am vaguely aware of the Civil Procedures however not in practice The bullet points are going to be just my first submission to go with the acknowledgment of service but any advice and pointers would be good. I am up against a tight deadline as I want this in the post for Friday at the latest. Herewith

 

1. Disproportionate and punitive level of charge. Seek clarity as to how the PCN figure being claimed was reached. The charge is a penalty by virtue of the charge as the car park does not levy a charge to staff users; therefore the landowner suffered no loss of revenue.
   
2. Trespass. I did not trespass on private land and believe I fulfilled all elements of the Terms and Conditions set down on the signs
   
3. No contract. Therequirements of forming such an expressed contract on the signage such as a meeting of minds, agreement, certainty of terms, etc. were not satisfied
   
4. Punitive/unfair/unreasonable. Without prejudice to the foregoing, even if there was a contract.
   

 

1. Punitive. The charge that xxxxxx are levying is punitive and therefore void (i.e. unenforceable) against me. The charge of £300 is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges.
   
2. Breakdown of charges. Dxxxxxx has failed to provide a breakdown of their charges.
   When an invoice is issued nder the law of contract to a vehicle which although allowed to park on the land, is in breach of the conditions relating to parking, it is my belief that the charge being demanded is sufficiently high that it amounts to a penalty and is therefore unlawful under the Unfair Terms in Consumer Contract Regulations 1999. I am still require the following information from xxxxxxx,
    
   1) Precise details of the calculation used to establish the sum pursued in this case, taking account of the following statement issued by the Department for Transport.
    
   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.
    
   
   
3. Unfair. The charge xxxxxxx are levying is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. " 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."
   

d. Unreasonable. The charge xxxxxxx are levying 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.

5. Inappropriate Appeal process by xxxxxxx and lack of clear transparent process. xxxxxxxxx failed to send me an appeal number following my initial appeal letter which required me write again to ask for this. This then prompted an Appeal Rejection letter from xxxxxxx. xxxxxxxxxdid not inform me of the judge or arbitrator’s independence in the POPLA process. xxxxxxxx failed to provide me with a copy of the evidence they submitted in their defence. I had to request this from POPLA. I therefore did not have an opportunity to give disclosure of any arguments being put by xxxxxxxx on this matter in the Appeal so that I might reply to any new issues which are raised. Devere failed to submit full correspondence sent by me and subsequently responded to by xxxxxxx.

6. Ownership/ landlord of the private parking. I continue seek to establish who owns the car park and what is the relationship between xxxxxxx and the owner/ landlord? I request xxxxxx to explain any involvement at all of the landlords/ owners with xxxxxxx as well as specifically with the claims via the courts. I continue to seek a copy of the contract in place that gives xxxxxxx the rights to pursue the PCN and subsequent claims in their own right. In this matter I have asked for proof of a contractual relationship between xxxxxxx and the landowner. xxxxxxx have refused to give this proof.

xxxxxxx have failed to mitigate their claim by showing proof that such a contract claimed causing them a loss actually exists. I still require documentational proof that as a third party agents xxxxxx have contractual consent from the land owner to raise legal proceedings and on whose behalf

 

 

7. Governing body membership. continue to seek details of any Codes by which xxxxxxx claim to comply and any governing body or other such organisation of which xxxxxxx are a member, including provision of the name and address of their solicitors (if any)

 

 

Font and format all over the place sorry- please let me have your thoughts Thank you

 

 

[dizness]

Please can you tell me what PATAS is and what ACOP stand for Thx

[Bandit127]

Dizness, please can you post up the Particulars of Claim (minus any identifying info). The experts will need this as it is an integral part of the process and is the foundation for your vigorous defence.

 

In the meantime I will flag your thread to the site team so hopefully we can get an expert to review your defence.

[dizness]

Yes Particulars of Claim

This concerns the issue of a Parking Charge Notification notice in the private car park known as xxxxxxxxxx to a car registered xxxxxxxx on xxxxx xxxx for a breach of the T's and C's of parking in that the car was not displaying a permit as required. Signs at the location state the T's and C's of parking and that failure to adhere result in the said PCN. The defendant was the driver of the vehicle and has admitted as such . The driver will have entered into a contract for this breach to accept and pay the PCN. Unusually in this claim the defendant appealed to POPLA the independent appeals tribunal in London. Her appeal was dismissed by the appeals assessor on xxxxx xxxxxx and upheld the PCN was issued correctly and that the defendant had not abided by the terms and conditions of parking. She was asked to pay within 14 days and has not made any such payment and the claimant is now obliged to issue this claim to recover the monies outstanding.

[havinastella]

Where does the £300 come from?

[dizness]

That's what the Claimant is asking for as costs

[Bandit127]

Yes Particulars of Claim

This concerns the issue of a Parking Charge Notification notice in the private car park known as xxxxxxxxxx to a car registered xxxxxxxx on xxxxx xxxx for a breach of the T's and C's of parking in that the car was not displaying a permit as required. Signs at the location state the T's and C's of parking and that failure to adhere result in the said PCN. The defendant was the driver of the vehicle and has admitted as such . The driver will have entered into a contract for this breach to accept and pay the PCN. Unusually in this claim the defendant appealed to POPLA the independent appeals tribunal in London. Her appeal was dismissed by the appeals assessor on xxxxx xxxxxx and upheld the PCN was issued correctly and that the defendant had not abided by the terms and conditions of parking. She was asked to pay within 14 days and has not made any such payment and the claimant is now obliged to issue this claim to recover the monies outstanding.

Please add the last bit. Usually starting "And the claimant claims XXX".

[dizness]

There is a box to the right of the page in a box

Amount Claimed 300.00

Court Fee 25.00

Solicitor's costs 0.0

Total Amount 325.00

[dizness]

Still trying to establish if there is a contract in place between the claimant and the landlord and there is apparently They do not pay the claimant and therefore they can raise and pursue clains in their own rights

Not so clear is the situation re the lease and allocation of parking spaces to my former employers but it would appear that they rent spaces as part of their lease agreement. I am seeking confirmation that they, my former employers rent the soaces under their lease and if theybdo do they have a contract in place with Devere allowing them to raise claims in their own right. I asked my former employers informally if there was a contract as such and they advised that they have to abide by the overarching contract with the landowners. I will need to ask for this information formally under FOI which will take sometime

Can I check your reply here when you say about my employer- if they rent the spaces as part of their agreement within the lease and they have a contract with Devere then they my employers need to put the clause in my contract that disallows me from parking other than in accordance to the terms set out by DeVere ? Is my understanding right her And can you explain what you mean about the contract with Devere when you say –it cannot be formed as your employment contract is superior? Which contract do you mean? Certainly there is no clause in my employment contract.

 

You say if it does’ nt have that clause in my contract you are the "occupier" and thus your rights cannot be given away by another party. Does this apply if my employers do not have a contract in place with Devere for the spaces they rent or if they do have a contract in place? I am sorry I am not understanding this reply. Please explain Thank you

[ericsbrother]

PATAS= parking and traffic appeals service, the London parking ticket tribunal.

ACOP= accepted code of practice. This is where there is no prescribed law but there are standards that are easily understood to be best practice and should be adhered to UNLESS you can show that your method is better. This applies to things like health and safety and for parking appeals there are key cases which are taken as precedents so it would be unwise for an individual or body to argue against them withour having an exceptioanl reason. There are key cases covering purchased tickets/permits blowing off the dashboard and they generally favour the appellant as long as they can prove that they had such ticket or permit. This means that you can quote the key cases from PATAS and claim that the same applies as it is an ACOP and DeVere have failed to show that they have a better system than PATAS for dealing with such matters.

With regard to the £300 calimed then they are on to a loser as the claim is for breach of contract and the original sum for the breach was undoubtedly £100. If the contractual sum is £100 why are they asking for £300? You dont need to answer but they will have to, the judge will demand that they justify this by way of the contract. It is for you to bring it to the attention of the court so DeVere have to answer. They cannot claim for their costs other than maybe a couple of quid for postage as again, it is part of the cost of running a business where you sign up to the BPA rules and regs in exchange for the right to claim against the keeper of the vehicle. They cant have it all ways.

DeVere have no contract with your employer, that is certain.

No one is asking about your contract with your employer, we want to know about the lease your employers signed when they rented the building and whether parking is mentioned in that contract. Your employers dont need a contract with DeVere, they have a lease or rental agreement with the landlord that if it doesnt mention the parking contract as one of its conditions means that DeVere have no claim as your employer are the occupiers, not the landlord and not DeVere. DeVere are the enemy, stop worrying about them and ask your bosses about the lease and the parking spaces.

[dizness]

Thanks I worked out the abbreviations with help form google and looked on the website Your information is very helpful. This is a matter of principle. I have a permit that is date stamped and I had to collect it from my employers on the day- there is no way of getting one the reception staff covet them like gold!! The weather was dreadful that day I was wrestling with umbrella brief case and box I appealed out of reasonality in my naivity!! I work in the caring healthcare profession and have experienced nought like this ever in my life, the man has been rude, bullying intimidating at every contact I sent the permit and scanned a copy for myself I will add the extract with which you refer in respect of the permit. I asked for breakdown in my earlier communication with them citing GPEOL and they advised in their correspondence that quote2Our parking charges form part of a contract only> Any person parking a vehicle will if in breach of the T's and C's existing as advertised on the signs at the location will haven entered into a contract to accept and pay the PCN that has been issued. Consequently there is no loss to the landowner or the parking operator Our signs are quite clear in their contents" I am worried I have to get the defence in by 2nd June estimated date that they will look at my papers- I am concerned that I don't breach Civil Procedures and fast running out of time. I have contacted my former employer and have to write in formally under FOI done this - I would like to ask you do I cite the information I am waiting for and will I have another opportunity to submit additional information outstanding at this point when the case is allocated locally? How do think my defence points are - please would you be able to critique these for me I am really keen to move this on- another thought can I ask for extra time at this point?

[ericsbrother]

As long as you get in a skeleton defence, basically bullet points then all the rest will be given more time when the case is allocated court time. You will get further instructions via the courts service.

so, You can say that you do not believe that DeVere has the right to pursue this claim as xxx (your employers) are the occupiers of the land and have no contract with devere that allows them to claim anything from you as a user of your employers facilities. The lease of the premises and associated parking has supremacy over any contract between DeVere and the landowner and therefore DeVere's claims have no standing.

That a permit was given to you to be there and that permit was displayed. This is purely for administrative purposes within the company and does not form a contract with DeVere.

That in any case no loss was caused to DeVere by their inability to see your permit.

That any charge by DeVere is a penalty and not a sum due for a breach of contract

that the sum claimed does not represent their loss or a genuine pre-estimate of loss should it be proved that a contract does exist and is enforceable against the occupiers of the land known as xxxxxx

 

You will need to photograph the signage and note EXACTLY where it was in relation to the entrance of the land and in relation to where your company's parking was. We will need to see the signage to determine whether there are mistakes in the wording that defeats them on the formation of a contract. aA FOI request takes 20 days so will be answered in time for the main event, you dont need it yet, it will be part of your evidence bundle later. Post up what you intend to ask for as a FOI and we will have a look, are you sure that your employer is a public body and covered by the act?

everything you say about the weather, heavy bags and getting permits is , unfortunately just noise, dont mention it in any defence. Likewise the behaviour of your opponent is also irrelevant. Law is based on facts and we are going to fact deVere's case to pieces.

[dizness]

Thank you Please can you check over my bullet points please as posted the day before yesterday I will change some of my content and add your suggestions. Going back to take photos tomorrow and will post it will become obvious where these are to users- is this ok?

I have checked with my organisation the NHS id a public body and covered by the Act. I was going to add about the mitigating circumstances but will leave them out How do I justify the movement of the permit form the Dash - do I have to ? Will copy and past the FOI request and post

[dizness]

Freedom of Information Request

I am seeking some information I hope that you can assist me with, it relates to contractual arrangements between the landlords xxxxx in relation to the operators known as xxxxxxxxx

Please can I ask if xxxxxxxxxxxxx

1. occupy specifically allocated parking spaces as part of its overall lease arrangements with the landlords, xxxxxxxxxxxx
   

If so do xxxxxxxxxx occupy the parking spaces as part of the overall lease arrangements,

B. are the xxxxx bound by contractual clauses in respect of xxxxxxxxxxxxin relation to the issue of parking charge notifications and making claims in their own right, as xxxxxxxxx?

If the xxxxx are bound by these clauses with xxxxxxxxxxxxx,

C. please provide a copy of the clause that specifies the agreements the xxxxx are party to as part of the contract with the landlords, xxxxxxxxxxxxx.

If the xxxxxxxxxxxx occupy the parking spaces as part of the lease arrangements,

D. do the xxxxxx manage the parking spaces independently of the landlords? And if they do, E. does the xxxxx have an independent contractual arrangement with xxxxxxxx to allow them to issue parking charge notifications and claims in their own right?

If the xxxxxx has its own independent contractual arrangement in place with xxxxxxxxxxxx for them to issue parking charge notifications and claims in their own right, I would like to request copies of the following;

1. the contract or extract that demonstrates arrangements between the xxxxxx and xxxxxxxxxx;
   
2. the information or guidance that demonstrates that staff are made aware of these arrangements with xxxxxxxxx;
   
3. the wording or extract advising staff that there is a contractual arrangement that exists between the xxxxx as their employer and xxxxxxxxxx, and that they are liable to fines and claims by xxxxxxxxxxx;
   
4. a copy of the clause in the staff contract of employment which disallows employees from parking other than in accordance to the terms set out by xxxxxxxxxxx.
   

Thank you for kindly considering my request. Please would you kindly confirm that you have received my formal request which I have generated electronically.

I look forward to hearing from you in due course.

[ericsbrother]

For starters, head your letter "Feedom of information request". Without an indication that it is info sought unfer the FIA then you will get nothing.

then just ask for copy of any part of the lease between the company and their landlords that gives rights to DeVere to hold claim over the parking provided to the company as part of the lease or any other arrangemnt.

Copy of any contract between (employer) and DeVere that gives deVere the right to make claims for recovery of contractual charges in their own name.

keep it simple.

 

If (employer) is to claim commercial confidentiality then they should say how the exemptions specifically apply and allow a method of reinvestigation.

[ericsbrother]

as for the defence, keep away from detail, just send the bullet points above. Read the parking prankster's blog for other successful defences if you want to do it differently but dont send reams of detail that can then be picked apart because you have missed the main points. Arguing about an unfair contract is not helpful when you want to show there is no contract to start with. the detail is for later, when DeVere offer a case.

The critical thing is to get an acknowledgement of service in and say you intend to defend in full.

[ericsbrother]

If you no longer work for the company ask for the info and explain why you want it and point out that you can apply to the courts for a Norwich Pharmacal Order. Is the company a public body? I have asked this before becasue if it isnt you cannot ask for anything as a FOI request as it isnt applicable.

 

Whilst you are writing to people, write to DeVere and demoand sight of their contract with LL

[dizness]

I now work some where else but same national organisation. I have asked both the landowner and the former employer for the contract and they know why- the organisation is a public body - what is a pharmacal order?

I have written to DeVere and sent by proof of posting also.

Just one thing more - getting mixed messages about the defence submission- MCO suggested I sent all my evidence at this point although nothing to definitively the process and how to. Explain the evidence bundle to the healthcare layman please. Thanks

[ploddertom]

FOI requests are only relevant for public bodies - Councils, Government depts - not private companies.

[dizness]

Thank you I am aware that I can ask for this body for a FOI I work for them and we receive loads!

[dizness]

A big thank you to ericsbrother for all your help and guidance with the form. I have completed and its gone within the anticipated deadline. FOI request gone too. Wait and see what transpires next. I could not have done this without your input. x