A little help with IAS appeal please

spex86_2 · 21 August 2014 at 6:58PM

Hi all,

A colleague of mine received a few windshield invoices earlier in the year. We sent a soft appeal letter template, and a few additional points that I raised in my successful soft appeal too.

She has however received today a rejection letter, so we are now looking to appeal to the IAS. I have noticed that there are a few of these which are unsuccessful as of late so wondered if there was a 'good' starting point to base it on?

The NtK was received 71 days AFTER original invoice. This has not been addressed in rejection letter. At no point in soft appeal did she admit to being the driver of the vehicle. (would we add a copy of NtK and highlight dates to provide evidence of this?)

I'm not sure if this is applicable but she is no longer the owner of the vehicle, as she has since had it scrapped.

She does not have the original windscreen invoice so I only have these to go on, as well as the pictures I took to support my case (which state penalty notice so I intend to use those as supporting evidence).

Any help/suggestions/direction will be greatly appreciated.

rejection letter:
s1270.photobucket.com/user/rjthompson1986/media/Mobile%20Uploads/20140821_184309_zpsf7292df2.jpg.html?sort=3&o=0
NtK:
s1270.photobucket.com/user/rjthompson1986/media/Mobile%20Uploads/20140821_184258_zpscfcfa4ee.jpg.html?sort=3&o=1

Coupon-mad · 22 August 2014 at 2:03AM

I see it was 'Sheriff Enforcer Ltd' (hilarious choice of name from clueless idiots).

I'm not sure if this is applicable but she is no longer the owner of the vehicle, as she has since had it scrapped

Not relevant.

The NtK was received 71 days AFTER original invoice. This has not been addressed in rejection letter. At no point in soft appeal did she admit to being the driver of the vehicle. (would we add a copy of NtK and highlight dates to provide evidence of this?)

Yep you've got it. But you don't say 'The NtK was received 71 days AFTER original invoice' (since the keeper hasn't had that original invoice have they?!). So it would be worded 'The NtK was received 71 days AFTER the date of the alleged parking event as stated in the NTK.'

Also if you look at that NTK it's not even worded as if the charge is a contractual fee or tariff (consideration). It's written as though the parking event was a breach, given away by words like 'failure to...' (fulfil an obligation) and 'unauthorised parking' (a contractual fee/tariff arrangement would in fact offer and allow any parking at a price, never mind 'authorised' or not!).

And further, if you look at that NTK it's not a POFA 2012 one at all, is it? Despite the red wording 'Important notice to Registered Keeper' there's no substance to that part! It doesn't warn the keeper about potential liability under the POFA 2012, almost certainly because Sheriff Enforcer farm their cases out to a debt collection firm which doesn't have the brain to create a compliant document nor the time/inclination to ensure POFA deadlines are ever met.

I expect you've realised IAS appeals are something of a work in progress for us right now. My suggestions are based on what I am hoping I may have correctly 'read between the lines' in a losing appeal like on Daps' thread. I noticed that in rejecting the bit about the flawed NTK, the IAS assessor only said 'the appellant hasn't shown any evidence of the NTK flaws'. So rather than panic and think 'oh no, we are doomed, we are going to lose IAS appeals from now on!' I thought: 'OK you want evidence, IAS, we will tell people to show their own evidence'. So that's where we are now with testing the 'show them evidence' approach, far more like a court defence than a POPLA appeal.

Imagine to yourself that the onus is on the appellant (motorist or keeper) to prove things, rather than the POPLA method where the onus falls on the Operator to disprove anything said.

If you also have pics showing the word 'penalty' on signs as well as a NTK that doesn't make the keeper liable at all, I will stick my neck out and say - you will most likely win this one! Show us your draft.

Dee140157 · 22 August 2014 at 6:58AM

So as C-M points out, you need to go through the NTK with a fine tooth comb and compare it with POFA12 and show every pint it fails on.
Enclose the NTk with all the missing bits as a copy of evidence.

This will probably form the first and very long part of the appeal.

The second will hinge on signs, similar to the way you did before, showing every scrap of evidence, linking it in to third part which you can base on no GPEOL due to the wording of the signs and the NTK as explained by C-M.

It is a shame you don't have an original windscreen PCN as I have seen one for an IPC PPC which referred to POPLA too.

Coupon-mad · 22 August 2014 at 2:15PM

But then again if the keeper had the PCN they'd then have to explain plausibly how they got it or the IAS may assume they were driving after all! So it's safer that a keeper never talks about the PCN.

spex86_2 · 30 August 2014 at 1:55PM

hi all, sorry I haven't done more but currently feeling rather poorly. So far, I have written the following for the IAS appeal, but I'm now becoming concerned more about getting it sent off within the allowed timescale as this was dated 18/08/14.

Below is the appeal as it stands:

PCN Number: XXXXX
Date PCN Issued: XXXXXX
Dear Independent Parking Committee,
I am the registered keeper of the vehicle reg XXXXXX and I contend that I am not liable for the parking charge. I wish to appeal against this notice issued by Sheriff Enforcer Ltd on the following grounds:

1) Failure to Comply with Statutory Requirement under Paragraph 8 of POFA 2012, Schedule 4.
(see file attachment NtK 1)
Firstly, the Notice to Keeper (NtK) does not, at any point, cite that they will pursue the owner of the vehicle under the Protection of Freedoms Act 2012 (POFA 2012). Whilst the NtK suggests an ‘Important Notice To Registered Keeper’, it does not warn or inform the Keeper of any potential liability under POFA 2012. This can be seen in attachment NTK 1 of this appeal.
Secondly, the NtK fails to comply with Schedule 4 of the POFA 2012 Paragraph 8(5) – “The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.” Furthermore, the Independent Parking Committee’s Code of Practice (IPC CoP) states under Part C, 3.1(q) that a Notice to Keeper must “Be given so that it will be received by the keeper between 30 and 58 days after the Notice to Driver was given”. As evidenced in attachment NtK1 of this appeal, the NtK is dated 24 June 2014, with the “Date of Unauthorised Parking Event” stated as 14/04/14. Using the timescale as stated above, the NtK is non-compliant as it was received 71 days AFTER the date of the alleged parking event, which contravenes both of these points.
Thirdly, under Paragraph 8 (2)(a), it states that “The notice must – specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Again, the IPC CoP raises this point under Part C, 3.1(h) in that the Notice to Keeper must “Specify the period of parking and the time of the issue of the Notice to Driver”. As can be seen in attachment NtK 1, at no point on the NtK is the period of which the car is parked stated.
Additionally, the NtK does not stipulate the time and date of which the original Notice to Driver was given. This is a stipulation under the PoFA 2012, paragraph 8 (2) (c) where it states that the notice “states that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7 (2)(b)(c)(f)”. To clarify, paragraph 7 (2)(f) states that the notice must “specify the time when the notice is given and the date”. Whilst the NtK does state the date and time of the “unauthorised parking event”, at no point is there any indication of the time and date the Notice to Driver was given. Again, this point also fails to meet standards as set by the IPC CoP, specifically Part C, 3.1(h) where it states that the NtK must “Specify the period of parking and the time and issue of the Notice to Driver”. Evidence of this point can be found in attachment NtK 1.

2) Inadequate and Insufficient IPC Compliant Signage
(see file attachments Sign1, Sign2 and Sign3)
The signage on entry to the land is improper and insufficient. As suggested under Schedule 1 of the IPC CoP “The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead”. After revisiting the site since receiving the NtK, signage on entry to the land does not meet this criteria.
The signage (Sign1) is written in capital letters. The British Dyslexia Association and Gov.uk state that “Avoid text in block capitals: this is much harder to read”. This means that the signage provided can be argued as not easily legible and can cause problems for any driver that has dyslexia.
Additionally, the IPC CoP states under Schedule 1 that signs should “include a minimum of one phrase from Group A”. To clarify this point, Group A phrases are stated as the following :
Pay and display [free for blue badge holders]
[x minutes/hours] free parking [for customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for [business name] customers only
Permit Holders Only
As can be seen in attachment Sign1, there is no Group A text on this signage.

Furthermore, signage near the Pay and Display machines, as evidenced in attachment Sign2, clearly state that a “PENALTY CHARGE of £75.00 is payable for failing to display a valid ticket”. Under Schedule 2 of the IPC CoP, the use of the word ‘Penalty’ on any signage is classed as a point of non-compliance. As such, I request that this point is considered as a formal complaint against Sheriff Enforcer Ltd.
There is also a lack of continuity and clarity with the signage provided with regards to the operator of the parking facility. The Pay and Display signage indicates that it is Robin Hood Parking Ltd that operate the land, as evidenced in attachment Sign3 ; whereas entry notices state that it is operated by Sheriff Enforcers Ltd, as can be seen in attachment Sign1 . These signs contradict one another and as such it is not clear as to who is the operator of this site. As such, this is not a transparent contract, as it is unclear as to who the contract is entered with. I therefore request that I am informed of who is the recognised operator of this site.
With recognition of the points above, I contend that the signs in place on the land do not comply with the regulations as set by the IPC CoP, As such I request that the IPC compare the current signage, or evidence thereof provided by the operator of the site, with the IPC Code of Practice requirements.

3) The Charge is a disguised breach
The wording of the signage (attachment Sign2) states that there is a “penalty charge for failing to display a valid ticket”. The NtK (attachment NtK1) states that there was an “Unauthorised Parking Event”. As such, I contend that this charge is not a contractual fee or tariff (consideration), but a breach. A contractual fee/tariff arrangement would not need parking to be authorised and would consider parking at any price or fee.

Any suggestions as to what can be added will be greatly appreciated. Trying to write this/navigate forums/pick apart legislation is difficult at the moment (especially when doing it for someone else!!).

Many thanks.

Dee140157 · 30 August 2014 at 3:28PM

I haven't gone through this with a fine tooth comb yet myself' but I wonder of you could is some way use the basis of this POPLA successful appeal against a contractual charge notice against the PPC.

Considering carefully, all the evidence before me, after objectively assessing the signage displayed at the site, I find that the signage does not mean that motorists may remain at the site for longer than 20 minutes when not authorised to do so provided that they pay £100, which would make the amount of the parking charge consideration. However, I do find that the signage means that remaining at the site for longer than 20 minutes when not authorised to do so is not permitted and that a parking charge of £100 will be issued to vehicles. Therefore, I find that the amount of the parking charge does represent damages for a breach of contract.

I know it's a POPLA decision and will not count here, but the wording is quite pertinent.

Also of you haven't already look at this thread with a recent successful win at IAS, there may be some points you could add. c-m says something about the words prescriptive and mandatory.

Coupon-mad · 1 September 2014 at 12:20AM

I would swap over the points within the first appeal paragraph so you are then saying 'the NTK was too late' as the first point within that paragraph, then the wording omissions after that.

I have also swapped two paragraphs in point #2 so that the paragraph starting 'furthermore' is the last one in that point now.

Suggested additions/changes in red so you can spot them (change it all to black!):

Dear IAS,
I am the registered keeper of the vehicle reg XXXXXX and I contend that I am not liable for the parking charge. I wish to appeal against this notice on the following grounds:

1) Failure to Comply with the Protection of Freedoms Act (POFA 2012) Schedule 4 - so there is no keeper liability.
(see file attachment NtK 1)
Keeper liability for private parking charges depends upon the Operator fulfilling certain mandatory conditions:
''Right to claim unpaid parking charges from keeper of vehicle
4(1)The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle.
(2)The right under this paragraph applies only if—
(a)the conditions specified in paragraphs 5, 6, 11 and 12 (so far as applicable) are met.

6(1)The second condition is that the creditor (or a person acting for or on behalf of the creditor)—
(a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8.''

The requirements of Schedule 4 are prescriptive and this Notice to Keeper (NTK) fails to meet the 'second condition' for keeper liability.

Firstly, the NtK fails to comply with Schedule 4 of the POFA 2012 Paragraph 8(5) – “The relevant period for the purposes of sub-paragraph (4) is the period of 28 days following the period of 28 days beginning with the day after that on which the notice to driver was given.” Furthermore, the Independent Parking Committee’s Code of Practice (IPC CoP) states under Part C, 3.1(q) that a NtK must “Be given so that it will be received by the keeper between 30 and 58 days after the Notice to Driver was given”. As evidenced in attachment NtK1 of this appeal, the NtK is dated 24 June 2014, with the “Date of Unauthorised Parking Event” stated as 14/04/14. Using the timescale as stated above, the NtK is non-compliant as it was received 71 days AFTER the date of the alleged parking event, which contravenes both of these points.

Secondly, the NtK does not, at any point, warn that they may pursue the keeper of the vehicle under the POFA 2012. Whilst the NtK has a heading: ‘Important Notice To Registered Keeper’, it does not warn or inform the Keeper of any potential liability under POFA 2012. It omits the mandatory wording set out in 8(2)(f):
''The notice must—
...warn the keeper that if, at the end of the period of 28 days beginning with the day after that on which the notice to keeper is given—
(i)the amount of the unpaid parking charges (as specified under paragraph (c) or (d)) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,
the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid.''

Thirdly, at no point on the NtK is the 'period of parking' specified as a time period. Under Paragraph 8 (2)(a), it states that “The notice must – specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”. Again, the IPC CoP raises this point under Part C, 3.1(h) in that the NtK must “Specify the period of parking and the time of the issue of the Notice to Driver”. The word 'and' shows the IPC intend that two distinct times must be shown. In the POFA 2012 Schedule 4, the 'period of parking' is a time that must be recorded and shown on a Notice to Driver (NtD) and a NtK. In practice it must be a period of time spanning several minutes and it is not enough for an Operator to use generic wording to the effect that this is just the 'period that preceded the NtD'. The IPC CoP requires an Operator to observe a parked vehicle, allowing a suitable grace period for a newly-arrived driver to read a sign and to obtain a pay and display ticket. I have seen no evidence that the person ticketing that day waited even 5 seconds before issuing a NtD. Since it is a pay and display car park, there must be a suitable grace period for drivers to read the signs, find the machine, queue, pay their fee and then return to the car to display the P&D ticket on the dashboard.

A 'specified period of parking' is a timed period which will always differ from the 'time of issue' in view of the time taken to input, print and then finally serve a NtD. It cannot be assumed that any unsaid 'period of parking' was compliant with the observation and grace period requirements of the IPC CoP and so I contend the generic wording on the NtK is unfair and unclear. The IPC requirement to record both timings would prevent the possibility of taking an immediate photo and issuing a NtD within the site grace period, for instance, whilst the driver was merely reading the signs and then obtaining the P&D ticket from a machine.

In my case where it is alleged the driver 'failed to display a P&D ticket' the 'period of parking' is an imperative piece of specific information for a registered keeper who may never have even been in that car park, let alone in the car that day. This is not just about interpreting the IPC CoP, however, it is about statutory wording on a legal document. If Schedule 4 did not require a 'period of parking' to be stated as a specific time, then it would merely have words to the effect that: 'a Notice must state that the period of parking is the time which immediately preceded the NTD'. Clearly this is not the case - the wording of the Schedule has been drafted to require a 'period of parking' to be specified. Indeed this is made completely clear in 7(2)(c) with the phrase 'the specified period of parking'. Where the Schedule says “The notice must'' then the text which follows is prescriptive and mandatory and is not open to interpretation nor any assumption of a parking period. Compliance with this section of the Schedule is, in my view, not met by a generic catch-all sentence to avoid specifying a time period on every separate NtD and NtK.

Additionally, the NtK does not stipulate the time and date when the original Notice to Driver was given. This is a stipulation under the PoFA 2012, paragraph 8 (2) (c) where it states that the notice “states that a notice to driver relating to the specified period of parking has been given and repeat the information in that notice as required by paragraph 7 (2)(b)(c)(f)”. To clarify, paragraph 7 (2)(f) states that the notice must “specify the time when the notice is given and the date”. Whilst the NtK does state the date and time of what they describe as the “unauthorised parking event”, at no point is there any indication of the time and date the Notice to Driver was given, which could even have been 24 hours later, for example, if a car remained there for a long period. Again, this point also fails to meet standards as set by the IPC CoP, specifically Part C, 3.1(h) where it states that the NtK must “Specify the period of parking and the time and issue of the Notice to Driver”. Again, this is not just about interpreting the IPC CoP, however, it is about statutory wording on a document. Where the Schedule says “The notice must'' then the text which follows is prescriptive and mandatory and is not open to interpretation nor any assumption of a time and date when the original NtD was given.

Further, the NtK does not specify the amount of the parking fee/tariff which this Operator alleges remains unpaid, i.e. any tariff due prior to the issuing of a NtD on the day. This is a requirement of the NtD which must also be repeated in the NtK. To clarify, paragraph 7 (2)(c) states that the notice must -
''inform the driver that the parking charges relating to the specified period of parking have not been paid in full and specify the total amount of the unpaid parking charges relating to that period, as at a time which is—
(i)specified in the notice; and
(ii)no later than the time specified under paragraph (f)*'' {*(f) = the time when the notice is given}

The above words prove that more than one time is required to be shown in a NtK. But in addition, the keeper must be informed of the specified sum that related to the specified parking period (i.e. the applicable tariff, not just the £75 'parking charge' which in fact can only arise straight after the issue of a Notice). The 'unpaid parking charges' in the Schedule are stated as those which remained unpaid on or before ('no later than') the time when the NtD was given so this is not the £75 which happens also to be described as a 'parking charge'. There is no ambiguity because the Schedule defines the time applicable - the parking charge that remains unpaid is the 'sum in the nature of a fee or tariff' which arose during the 'specified period of parking' and not following the issue of a NtD.

At no point have I been informed that the P&D fee has not been paid in full (or perhaps not paid at all). So I have no idea whether the driver is alleged to have owed 1p or £5 (or nothing at all) prior to the NtD. Nor do I know what the tariff nor parking period was - so even if I visited the car park now, I would not have the information to be able to work out the parking charge possibly 'due'.

If it was the case that payment was made in full and it is merely a matter of not displaying a ticket, then the Schedule still requires the NtD and NtK to inform me how much of the specified tariff for the specified parking period remains unpaid. So, in that event the NtK would still have to include words to inform me that 'the total amount of the unpaid parking charges relating to the parking period of (specified period of time), as at (a specified time not later than the time of issue of the NtD) is £0'. Then the Operator would need to explain that the alleged contravention was 'failure to display' (rather than a failure to pay) and set out how a PCN of £75 has arisen (either as consideration or, as in this case, compensation, liquidated damages arising from a breach).

2) Inadequate and Insufficient Signage - no contract formed
(see file attachments Sign1, Sign2 and Sign3)
The signage on entry to the land is improper and insufficient. As such, the requirements for forming a contract such as a meeting of minds, consideration, acceptance, and certainty of terms were not satisfied. Even if there was a contract, which is denied, then it is unfair under the Unfair Terms in Consumer Contracts Regulations (UTCCRs1999).

As suggested under Schedule 1 of the IPC CoP “The sign must be readable from far enough away so that drivers can read all of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead”. After revisiting the site since receiving the NtK, signage on entry to the land does not meet this criteria.
The signage (Sign1) is written in capital letters. The British Dyslexia Association and Gov.uk state that “Avoid text in block capitals: this is much harder to read”. This means that the signage provided can be argued as not easily legible and can cause problems for any driver that has dyslexia.
Additionally, the IPC CoP states under Schedule 1 that signs should “include a minimum of one phrase from Group A”.To clarify this point, Group A phrases are stated as the following :
Pay and display [free for blue badge holders]
[x minutes/hours] free parking [for customers only]
Pay on exit
Pay [on foot/at machine] when leaving
Parking for [business name] customers only
Permit Holders Only
As can be seen in attachment Sign1, there is no Group A text on this signage.

There is also a lack of continuity and clarity with the signage provided with regards to the operator of the parking facility. The Pay and Display signage indicates that it is 'Robin Hood Parking Ltd.' who operate the land, as evidenced in attachment Sign3 ; whereas entry notices state that it is operated by Sheriff Enforcers Ltd, as can be seen in attachment Sign1 . These signs contradict one another and as such it is not clear as to who is the operator of this site. As such, this is not a transparent contract, as it is unclear as to who the contract is entered with. I therefore request that I am informed of who is the recognised operator of this site.
With recognition of the points above, I contend that the signs in place on the land do not comply with the regulations as set by the IPC CoP, and are incapable of forming a contract with a driver. There is a serious issue with uncertainty of terms and confusion about the Operator which could be one of the two named parking firms. The 'penalty' terms for breaching the 'authorised' parking rules do not offer a tariff for drivers who are in breach. There is no consideration.

Furthermore, signage near the Pay and Display machines, as evidenced in attachment Sign2, clearly state that a “PENALTY CHARGE of £75.00 is payable for failing to display a valid ticket”. Under Schedule 2 of the IPC CoP, the use of the word ‘Penalty’ on any signage is classed as a point of non-compliance. As such, I request that this point is considered as a formal complaint against Sheriff Enforcer Ltd. And the use of the word 'penalty' at the point when the signs were designed and erected at this site shows the original intention was to penalise a driver for breach, which brings me to appeal point #3.

3) The Charge is a penalty for breach of contract and not a genuine pre-estimate of loss
Under UK Consumer law, a penalty clause is a specifically banned 'unfair term' in the CPUTRs 2008 and it would be unenforceable. Contract terms between a company and a member of the public (especially where the consumer - being one step removed as a registered keeper - has had no opportunity to individually negotiate the terms in advance) are subject to the UTCCRs 1999.
In the OfT Unfair Contract Terms Guidance: a contract term is''unfair if it amounts to a 'disguised penalty', that is, a term calculated to make consumers pay excessively for doing something that would normally be a breach of contract.''

The UTCCRs 1999 state:
''5.—
(1) 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.
(2) 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.''
One sign (attachment Sign2) states that there is a “penalty charge for failing to display a valid ticket”. The NtK uses the words 'failure to...' (this must suggest a failure to perform an obligation) and 'unauthorised parking'. This is not acontractual fee/tariff arrangement which would offer/allow any parking at a price, whether 'authorised' or not. A driver cannot contract to be allowed to do something which is in fact disallowed by signs; one cannot contract to fail to fulfil an obligation. Such a clause would be a disguised penalty as a deterrent for breach by any driver who fails to fulfil the obligation to display a ticket. Since this is not a matter of consideration, the PCN must represent a genuine pre-estimate of loss. In this case I have no idea what the tariff was but a P&D fee is typically, say £1 or £2 per hour in private car parks. So a sum of £75 is clearly unreasonable, extravagant and wholly unrelated to the tariff which has not even been defined as a starting point.

It is established law that a provision which constitutes a penalty - in this case a 'penalty' by the Operator's own admission in the sign (shown in Sign2) - is unenforceable. The conventional approach to determining whether a provision is a penalty has been to distinguish between a liquidated damages clause, which is enforceable if it is a genuine pre-estimate of loss, and a penalty, which is not (Dunlop Pneumatic Tyre Co v New Garage and Motor Co (1915)). In the case of Dunlop there is a statement by Lord Dunedin, that a stipulation: “… will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss which could conceivably be proved to have followed from the breach”.

At the Court of Appeal in Murray v Leisureplay plc (2005) a broad approach was applied, asking whether the predominant function of a clause was compensatory (enforceable as long as the sum is not extravagant or oppressive when compared to the loss) or to deter a party from breach (unenforceable penalty).

In the case of Sheriff Enforcer Ltd., their intentions are clear from the word 'penalty' that they are aiming to deter. The evidence I have shown and attached to this appeal proves that in this instance, this charge was devised with the clear intention to be a deterrent and as such it constitutes an unenforceable penalty clause.

If this Operator cites 'ParkingEye v Beavis' stating that their charges are 'commercially justified' then this is fully rebutted. ParkingEye v Beavis was only a County Court small claim decision where the learned Judge was careful to include caveats which distinguish the case. In Court, the Judge said he expected the decision to be referred to the Court of Appeal, the date for which is now in the public domain and is set for 23rd/24th February 2015 with case number 20142010. There is no 'precedent' to support a penalty being enforced as a deterrent against a consumer. In any case, in Beavis, the claimants were stated to be the principal, whereas this Operator is acting with negative responsibility, presumably on behalf of the landholder (if they can evidence they have that authority, see point #4).

4) No evidence that this Operator has standing or authority to pursue parking charges
This Operator acts under a bare licence as a site contractor on behalf of the landowner and they have negative responsibility. Sheriff Enforcer Ltd. are not the landowner themselves, nor do they have any title or assigned interest in this land. I see no evidence that they have a right in their own name, to offer parking spaces or form contracts with drivers. Even if there was an unpaid tariff (which is denied) I contend that fee income (or loss of same) is solely a matter for the landowner.

Furthermore, since the Pay and Display signage indicates that it is 'Robin Hood Parking Ltd.' who operate the land, as evidenced in attachment 'Sign3' then this calls into question which parking Operator (if any) is capable of offering any parking spaces at a fee, and which party has allegedly made a loss.

This concludes my IAS appeal.

Name :
Date :

HO87 · 1 September 2014 at 7:18AM

+1 for C-M's amendments.

As she has already pointed out in the case of IAS appeals the onus falls on the appellant to prove (or argue) his case. The appeal may seem rather long but it is necessary to make the relevant points that will not otherwise be considered.

Furthermore, in the case of IAS appeals, it is also wise to adopt the legal axiom - "That which is not denied is admitted". In other words specifically refute or deny the key points that a PPC may rely on to prove their case. The principal one being to deny that any contract was entered into or could have been entered into on the basis of the signage and specifically not for the purposes of paying a penalty. The fact that this is openly admitted on the operator's signage, although attempts have been made to disguise this as a fee to park, is clear evidence of the failure of the operator to act in good faith.

I would suggest that you beef up Section 3, para 5 starting: "In the case of Sheriff Enforcer Ltd..." by adding an adapted version of the above to the end of the paragraph:

"Furthermore, the fact that the term "penalty" is openly used on the operator's signage, despite thinly veiled attempts to disguise the penalty as a fee to park, is clear evidence of the failure of the operator to act in good faith. On that basis alone no contract was or could have been formed.

Coupon-mad · 2 September 2014 at 11:25PM

Furthermore, the fact that the term "penalty" is openly used on the operator's signage, despite thinly veiled attempts to disguise the penalty as a fee to park, is clear evidence of the failure of the operator to act in good faith. On that basis alone no contract was or could have been formed.

I like those words. I hope this OP wins - they should win merely based on the late NTK issue alone.

spex86_2 · 4 September 2014 at 4:58PM

thankyou so much for your assistance with writing this appeal. It has been sent today with attachments, now to wait on the response.

Dee140157 · 4 September 2014 at 5:58PM

You might hear by tomorrow. Unlike POPLA they respond quickly.

A little help with IAS appeal please

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