Letter from Wright Hassall acting as POPLA

I'm guessing I should go strong on the non-GPEOL points?

Yes, I think I would reiterate points 2 and 3 first, quoting 'old' (pre-September) POPLA's Lead Adjudicator himself at EVERY opportunity:

- http://popla.org.uk/

click on the 'Final Report' of POPLA (London Councils style).

Copy this and anything else you see that's useful to summarise the fairness of the old POPLA service. Use Henry Greenslade's name and mention his 'high integrity' and 'fair reputation' as a longstanding Lead Adjudicator of parking ticket appeals across the board (Council statutory tribunals as well as private parking issues via POPLA).

Quote him from the Final Report:

''At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon.''

Then quote him from page 15 of the POPLA Annual Report 2015:

https://popla.co.uk/docs/default-source/default-document-library/popla_annualreport_2015.pdf?sfvrsn=2

“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''

Re that sentence, state that if the parking firm in the material case are also going to be offered the opportunity to comment or add any evidence at all, you therefore expect this temporary fix 'POPLA brand' to honour the service you signed up for. You require the same service extended to you as a consumer, as promised by the POPLA process you signed up for in 2015. This means you WILL be allowed the opportunity to comment upon any evidence now added by the operator and you expect more time to do so if this is the case.

Then quote this from Mr Greenslade from the Final Report from LondonCouncils' POPLA:

''PARKINGEYE LTD V BEAVIS
Once the decision of the Supreme Court is known, parties will naturally have an opportunity to make further representations before the matter is finally determined.''

If Armtrac did not send you ANY evidence pack before now at all, point this out as a breach of the BPA CoP and breach of POPLA processes and again, quote the Lead Adjudicator about Late Evidence being too late (further reps being allowed are one thing, but no evidence pack at all for a year is clearly far too late).

Page 14 of the POPLA 2015 report confirms this approach:

''Late evidence
In any fair appeals service, it is obvious that each party must have the
opportunity to see all the evidence of the other. If one party delays submitting original or additional evidence to POPLA until just before the scheduled date of determination, the Assessor may have to adjourn the matter for a short period in order for the other party can see the evidence and, should they wish, comment upon it.

Operators should therefore ensure that their evidence is sent to POPLA and to the appellant in good time. Many operators now send their evidence to POPLA and the appellant simultaneously by email. This provides clear evidence as to the date it was sent, should any issue arise.

The evidence checklist, correctly completed, must always be included with the operator’s evidence pack. The date stated on it, as to when evidence was sent to the appellant, should accurately reflect this fact. It is good practice for all operators to include the checklist with the evidence sent to the appellant. This ensures that exactly the same pack is before the appellant as is before the Assessor. It also means that the appellant can confirm that the stated number of pages have been received. Paragraph 22.16 of the BPA Code requires operators to keep to the processes and other requirements of POPLA.''

So, having set that out, here are your further representations:

- reiterate the late NTK but this time, copy & quote the timescale from Schedule 4 of the POFA directly from the Schedule. State that London Councils POPLA, always, without fail, found in favour of appellant keepers in this scenario of course and a keeper did not have to produce a copy of the NTK themselves (the paperwork fell to the operator to produce, under the POPLA rules).

Remind WH that there is no lawful 'back door' to the question of keeper liability on private land and this is a case which should have been decided in 2015 by 'old' POPLA due to this fact. A failure by the operator to follow due process from the Act regarding mandatory Notice to Keeper deadlines, means that a registered keeper cannot - without intellectual dishonesty and flagrant disregard of the POFA Schedule 4 - be held liable for a parking charge. A driver cannot be assumed and nor can a keeper be otherwise held liable for this charge, in any way whatsoever, in UK law.

State that this too was confirmed by Mr Greenslade the Lead Adjudicator in page 8 of the 2015 POPLA Report:

''Service of notices
A notice to keeper issued on the basis of evidence obtained using automatic number plate recognition (ANPR) should arrive on or before the fourteenth day after the parking event. Where a parking charge notice is fixed to the vehicle or handed to the driver, a traditional ‘parking ticket’, then a notice to keeper issued following that, should arrive between the twenty eighth and the fifty sixth day after the parking event. If these timescales are not complied with then keeper liability does not generally pass under Schedule 4.''


- then reiterate the lack of landowner authority. State that old POPLA always, without fail, found in favour of a consumer appellant when an operator failed to prove they had the authority of the landowner in accordance with para 7 of the BPA CoP. That included as a policy, disregarding any evidence not shown to an appellant so the operator cannot add it now for WH to consider.

Then quote section 7 including the nitty gritty in 7.3, in its entirety and say if the operator's evidence fails to show any of the BPA requirements then the omissions must be interpreted in the way which favours the consumer. For example, witness statements which do not set out the requirements listed in 7.3 would have failed under 'old POPLA', as would any letter or site agreement with ambiguous detail, ambiguous dates, heavily redacted sections or which are only signed by a managing agent or other non-landowner agent. Old POPLA always rejected this sort of evidence because it fails to show authority flowing from the landowner to the operator and too much redacted information usually meant that the detail in section 7.3 of the CoP was not evidenced properly, if at all.

Link the applicable CoP which was the October 2014 version for all these cases:

http://www.britishparking.co.uk/write/Documents/AOS_Code_of_Practice_October_2014_update_V5..pdf

Then you could attempt a 'not like Beavis' argument which at least puts Armtrac to strict proof of the fundamental issues which rendered the 'penalty rule' to be unusually, disengaged in ParkingEye's contract. Tell WH that you require Armtrac to state their legitimate interest and show their 'clear and prominent signage' with all terms and the charge itself, shown in 'large lettering' (believed to be 96 point font in Beavis). You require these matters to be clarified if Armtrac are contesting the appeal, so that their signage can be compared to the signage in the Beavis case. And of course, in keeping with the clear stated policy of Mr Greenslade, if the operator supplies signage photos and/or any argument at all about the Beavis case or any other matter, you will require sight of that new evidence and fair time (at least 21 days) to consider it and to finally respond.

The Supreme Court did not abolish the ‘penalty rule’ for all 'parking charges' nor for all consumer contracts, stating at 36:

‘’Miss Smith QC, who appeared for Cavendish argued, the judges should now take the opportunity to abolish it. But this is not the way in which English law develops, and we do not consider that judicial abolition would be a proper course for this court to take.’’

The judgment only related to THAT car park, THAT commercial set up with the landowner and THOSE ‘brief, clear, prominent’ signs which state the charge in large lettering. And the decision arose because ‘’the consumer gets the benefit of free parking in that unusually attractively located car park for two hours.’’

This was not a comparable contract nor was the charge in this case, supported by a comparable commercial justification. Indeed this pay and display arrangement was a 'standard financial contract' that the Court of Appeal remarked was 'entirely different' from the Beavis case.

The Supreme Court did not suggest that the Beavis decision was in any way applicable to every car park and parking ‘charge’ situation. Indeed, they were at pains to rush out a Tweet within 24 hours of the Beavis Judgment being handed down, making it clear that the judgment was unique and applicable only to that case:

https://mobile.twitter.com/UKSupremeCourt/status/661846322417397760

UK Supreme Court– Verified account ‏@UKSupremeCourt

Parking charge “neither extravagant nor unconscionable… taking into account use of this particular car park & clear wording of the notices”

Lord Mance at 191: '' ...(Schedule 4, paragraph 1). The reference to a relevant “obligation” does not exclude the penalty doctrine. On the contrary, if a charge stipulated contractually is a penalty, there will be no obligation.’’

Lord Hodge at 247: ‘’The focus on the disproportion between the specified sum and damage capable of pre-estimation makes sense in the context of a damages clause but is an artificial concept if applied to clauses which have another commercial justification.’’

In ParkingEye v Beavis at 32, it was made clear that a test has to be considered in every case and an interest will 'RARELY' extend beyond the usual penalty rule (Lord Dunedin's four tests):

''The true test is whether the impugned provision is a secondary obligation which imposes a detriment on the contract-breaker out of all proportion to any legitimate interest of the [...parking company...] in the enforcement of the primary obligation. The [...parking operator...] can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

LORD NEUBERGER AND LORD SUMPTION: (with whom Lord Carnwath agrees) found at 9: ''The distinction between a clause providing for a genuine pre-estimate of damages and a penalty clause has remained fundamental to the modern law, as it is currently understood. The question whether a damages clause is a penalty falls to be decided as a matter of construction, therefore as at the time that it is agreed…This is because it depends on the character of the provision, not on the circumstances in which it falls to be enforced.''

It is believed that this operator argued in the rejection letter and PCN that this charge in this case was a sum of 'damages' or 'loss'. Even given the chance to comment on the Beavis case now, an operator cannot later change the construction of a charge that fell to them to decide in advance. No "legitimate interest'' can be inferred just because there was seen to be such justification in the Beavis case.

So, a charge which was contructed as a damages clause last year, fails when compared to Lord Dunedin's tests for a penalty, which were considered 'a useful tool' in deciding standard damages clause contracts like this one. In the alternative, it fails when compared to the Beavis case because the signage does not match up to the large lettering/prominent terms requirement.