UKPC Rejected Appeal should I appeal to POPLA

The_Deep · 13 October 2016 at 11:23AM

Some bad stuff about UKPC

UKPC are former clampers who have been involved in quite a number of sordid scams, for example

Hull Trading Standards took them to court on 15 counts of fraud. UKPC won all but one, but only because they had a better lawyer, a Q.C. If I recall correctly

http://forums.pepipoo.com/index.php?showtopic=63597

They were bested by a Winchester barrister
http://www.consumeractiongroup.co.uk/forum/showthread.php?377246-UKPC-liable-for-trespass-**SUCCESS**

They were involved in a large scale scam which resulted in a DVLA suspension

http://www.telegraph.co.uk/news/uknews/crime/11858473/Parking-firm-UKPC-admits-faking-tickets-to-fine-drivers.html

And then of course there was Tracey Kiss

http://www.tracykiss.com/product-reviews/my-ukpc-parking-charge/

bezzer25uk · 17 October 2016 at 6:56PM

Ok so I think I've covered the right points this time. (I've taken the links out as I couldn't post them on here)Thanks again for your help. I've not mentioned the angle of the photos as if you look at bigger copies you can't really see the details from the front of the windscreen.

I am writing to appeal the PCN that I have received from UKPC on 30/09/16 at St Stephens Place, Trowbridge.
1. I have a valid parking ticket at the time the PCN was issued, which was displayed on my dashboard.
The permit was undoubtedly displayed on the dash and UKPC's own photo shows it:

2. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...]In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:

As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3 The written authorisation must also set out:

a: the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b: any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c: any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d: who has the responsibility for putting up and maintaining signs

e: the definition of the services provided by each party to the agreement
I look forward to hearing from you.

Yours faithfully

******

Fruitcake · 17 October 2016 at 7:08PM

You can upload pics to a web hosting sit such as tinypic or photobucket then post the URL here, but change http to hxxp. Someone here will change it back to a live link. Make sure your account isn't in your real name, and there are no other pictures or any personal information showing.

You should leave the bit in about the angle the picture was taken from. Let them prove otherwise. Say that you believe it is quite possible that a picture taken from another angle would have shown all the information.

Coupon-mad · 17 October 2016 at 11:22PM

Fruitcake wrote: »

You should leave the bit in about the angle the picture was taken from. Let them prove otherwise. Say that you believe it is quite possible that a picture taken from another angle would have shown all the information.

I agree, this is for them to refute if you raise the point, so add something like this back in (reword it if you prefer):

However, it is apparent that UKPC have deliberately chosen to take their photos from an inappropriate angle that includes the shaded edge of the windscreen, to make it appear it could not be read. Had the person looked from straight on facing the windscreen, in front of the car, they would have seen the 'ticket' in full, which after all was the permit that allowed 3 hours free and not a ticket that could in any way be hiding anything such as an underpayment.

I did nothing wrong at all and am furious that the UKPC employee took a photo at that misleading angle, almost as bad as the doctored photographs by UKPC that this operator admitted in the National Press and which saw them banned by the DVLA a few months ago.

Also I would add another appeal point:

4. This charge is unconscionable, offends against the penalty rule and breaches the CRA 2015 and the CPUTRs 2008 (no transparency of terms nor fairness)

The operator makes much of the Beavis case, yet they are well aware that the circumstances of the Beavis case were entirely different. Essentially, that case was about parking after the end of an accepted licence to park free, where there was a 'legitimate interest' flowing from the landowner, in deterring overstayers by charging more than could normally be pursued for trespass.

In this case, we have an authorised user using the car park appropriately and there has been no loss nor detriment caused to the owner, nor any similar overstay affecting other potential parkers. The Beavis case certainly does not 'supersede' any argument about the conscionableness or fairness of a charge, indeed it was clear that case was considered 'complex' and 'entirely different' from simple contracts (e.g. parking and using a ticket machine, like here).

There is nothing in this case to suggest that a reasonable person would accept that a £100 fine is a conscionable amount to be charged for the simple problem of a permit that is agreed to be valid apparently not being visible to a parking firm employee when he/she took a photo from a certain skewed angle. It was not even as if the employee needed to be able to read a detail such as how much had been paid, because the tickets are free/parking is free and it was perfectly possible to see when that ticket was generated.

To charge £100 to a valid car park user whose ticket was sufficiently visible from other angles is sharp practice and the very essence of 'unconscionableness'. The Beavis case makes it clear that the Judges would have considered such a charge to offend against the penalty rule, unlike the charge they were considering, arising from wholly different facts.

Therefore, in this case the rights of a consumer must be balanced against any interests of the landowner and any putative contract needs to be assessed on its own merits. Consumer law always applies and no contract “falls outside” The Consumer Rights Act 2015; the fundamental issue is always whether the terms are fair (i.e. was the PCN 'properly' given, based on all the evidence and was I 'bound to have seen' the £100 charge buried in small print?).

In this case the specific question is whether a reasonable person would agree to a term where parking in a place that they accepted three hours free parking could give rise to an unknown liability of £100 due to no fault of theirs. I followed instructions and displayed the free 'voucher' ticket in good faith and it is unclear who or what might have dislodged it slightly (if at all, this must have been after I had parked) in order to enable a photo to be taken at that misleading angle.

UKPC’s signs fail the requirement for transparency of terms and do not meet the bar set by the Beavis case for 'adequate notice' of the parking charge. There are two signs, one above the other, and the sign below is in large lettering (offering 3 hours free if displaying a ticket, which I did, yet it is silent about any charge). By contrast, the sign above it is in tiny font, so it seems that UKPC are attempting to hide the charge in small print.

By not stating in the largest font, that displaying the free ticket is an obligation which risks £100 'penalty', there is a failure by the operator to 'identify its commercial intent', contrary to Consumer law. Specifically missing (or otherwise illegible, buried in small print on that too-high-to-read sign) is the vital information that the ostensibly free ticket can actually give rise to £100 charge.

In circumstances where the terms of a notice are not negotiable (as is the case with the car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity, omission or contradiction in those terms, the rule of contra proferentem shall apply against the party responsible for writing those terms.

This is confirmed within the Consumer Rights Act 2015 including: Paragraph 68: Requirement for Transparency:

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.

(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

Withholding material information (or hiding it in small print) from a consumer, regarding the commercial purpose of the ostensibly 'free ticket' would be considered an unfair term under The Consumer Protection from Unfair Trading Regulations 2008 (CPUTRs) because the operator 'fails to identify its commercial intent':

http://www.legislation.gov.uk/uksi/2008/1277/contents/made

Misleading omissions: 6.—(1) ''A commercial practice is a misleading omission if, in its factual context, taking account of the matters in paragraph (2)—
(a) the commercial practice omits material information,

(b) the commercial practice hides material information,

(c ) the commercial practice provides material information in a manner which is unclear, unintelligible, ambiguous or untimely, or

(d) the commercial practice fails to identify its commercial intent, unless this is already apparent from the context...

...and as a result it causes or is likely to cause the average consumer to take a transactional decision he would not have taken otherwise.''

I would certainly not have taken the decision to park and display that free ticket if I knew that UKPC had hidden from me the most onerous (illegible in small print) term in the higher sign. I did not agree to pay any sum at all. I had no idea that I could be liable for £100 due to (perhaps) persons causing slight movement of the car after I left and/or a misleading angle deliberately chosen by the UKPC employee for their photos. This was the secret commercial intent, to generate a 'fine' where it was clear that the car was legitimately parked and authorised from the time shown on the ticket (if they had looked closer, which is perfectly reasonable to expect). I was oblivious to any charge at this free car park.

As there was an absence of agreement on the charge, I leave POPLA with the words of the Judges in the Beavis case:

''But it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.’’

I believe that this charge is unrecoverable from myself, due to all or any of the above appeal points.

bezzer25uk · 18 October 2016 at 8:47PM

What happened when you complained to the landowner/retailer?[/QUOTE]

Thank you all so much for your help with this. I received a letter from UKPC today telling me that the landowner has requested that they cancel the fine, after receiving my complaint.

Ralph-y · 18 October 2016 at 9:20PM

well done .... :j

now can we ask for your help by supporting this campaign

This is a campaign of asking people to keep sending Theresa May actual hard copies of the trash they've been deluged with. Let her advisers' desks overflow with annoying paperwork re PPCs.

No emails, all letters from genuine people pouring their hearts out. Write to your MP as well as Mrs May:

https://bmpa.zendesk.com/hc/en-us/articles/211923909-Why-not-write-to-your-MP

The more the better, write it yourself if you are able and enclose copies of the threatograms and rubbish thrown at you.

Do not do this by email - make your paperwork land with a thump on desks, just like it all landed in a very unwelcome way on your doormat.

Apparently the DCLG are looking to make an announcement before the year end so let's make MP's and Mrs May aware that action needs to be strong. You can be sure that the BPA and IPC suits are lobbying Parliament and meeting their friends in suits.

So let the consumers' voices be heard.

thanks

Ralph:cool:

christina65 · 8 February 2018 at 12:52AM

I recently had to attend the A & E department of Carlisle Hospital, put a 2 hour parking ticket on dashboard, whilst in treatment with the consultant my time run out, I was 29 minutes over and received a fine. I appealed and explained the situation but the appeal was rejected. The letter received from UK Parking states that I can appeal to POPLA but if I do I lose out on the lower fine if the appeal fails and if I pay the lower fine I can't appeal to POPLA. I am going to appeal but I will be sending letters to my local MP, the MP responsible for the Carlisle area and I will also be writing to the hospital. I will probably have to pay the £70 instead of the lower rate of £40 but feel very strongly at being charged for my visit to hospital. The hospital should have a machine to issue a ticket on arrival to be paid when leaving, when we go shopping we know how long we will be but when visiting in an emergency situation at hospital we don't know how long we will be there.

Coupon-mad · 8 February 2018 at 12:50PM

The letter received from UK Parking states that I can appeal to POPLA but if I do I lose out on the lower fine if the appeal fails and if I pay the lower fine I can't appeal to POPLA. I am going to appeal but I will be sending letters to my local MP, the MP responsible for the Carlisle area and I will also be writing to the hospital.

Please don't waste your time reading 2016 threads!

You need to hop two steps to read the NEWBIES thread. It explains what to include in a POPLA appeal, in post #3 of that sticky.

Don't write about mitigation!

By all means make that complaint to your MP, have you seen this and watched the Parliamentary debate recording? Well worth pointing your MP to watch it too and support the Bill:

http://forums.moneysavingexpert.com/showthread.php?t=5787731

https://parking-prankster.blogspot.co.uk/2018/02/parking-bill-moves-to-next-stage-will.html

UKPC Rejected Appeal should I appeal to POPLA

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