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  • FIRST POST
    • jsmrtn
    • By jsmrtn 22nd Sep 17, 12:54 PM
    • 3Posts
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    jsmrtn
    UKPC appeal rejected
    • #1
    • 22nd Sep 17, 12:54 PM
    UKPC appeal rejected 22nd Sep 17 at 12:54 PM
    Hi all,

    I got a notice from UKPC on 13th August at 19:30 and appealed through UKPC, which was expectedly rejected.

    I've got the POPLA code and looked through the newbies guide, though it's always saying about registered keeper.. and I did make an error though by selecting 'Driver' and not 'Registered Keeper' on the UKPC appeal form

    Both parking machines in the car park were out of order, though I've read on here that POPLA don't really care and it's not a good grounds for appeal.

    Not really sure where to start as there is lots of info on the sticky.. I'm in half a mind just to ignore the letters, but I'd like to get it out the way so I don't get 20 of them a year.

    Any help would be appreciated.

    Thanks
Page 1
    • DoaM
    • By DoaM 22nd Sep 17, 12:58 PM
    • 3,348 Posts
    • 3,393 Thanks
    DoaM
    • #2
    • 22nd Sep 17, 12:58 PM
    • #2
    • 22nd Sep 17, 12:58 PM
    What you've encountered is "frustration of contract" since the payment machines were out of order.

    Whilst you don't now have keeper liability protection as you've admitted being the driver, almost every other appeal point linked from the NEWBIES thread section about POPLA will likely be available for you.
    Diary of a madman
    Walk the line again today
    Entries of confusion
    Dear diary, I'm here to stay
    • jsmrtn
    • By jsmrtn 1st Oct 17, 1:01 PM
    • 3 Posts
    • 1 Thanks
    jsmrtn
    • #3
    • 1st Oct 17, 1:01 PM
    • #3
    • 1st Oct 17, 1:01 PM
    Thanks DoaM. Please see below my POPLA draft, as I've already mentioned I've named the driver as myself so I don't think I can use the two normal points of 'A compliant Notice to Keeper was never served - no Keeper Liability can apply.' and 'The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge'.

    I also can't find anything about Frustration of Contract as an appeal point, so should I just not include this?

    POPLA Appeal Letter

    Dear POPLA Adjudicator,

    I am the driver of vehicle xxxxxx and am appealing a parking charge from UKPC on the following points:

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

    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


    1. 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


    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:

    WEB LINK

    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:

    WEB LINK

    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:

    WEB LINK

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

    WEB LINK

    ''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:

    WEB LINK

    ''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:

    WEB LINK

    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.
    • Coupon-mad
    • By Coupon-mad 2nd Oct 17, 12:59 AM
    • 50,750 Posts
    • 64,170 Thanks
    Coupon-mad
    • #4
    • 2nd Oct 17, 12:59 AM
    • #4
    • 2nd Oct 17, 12:59 AM
    You need more than that.

    You do need to say that both machines were out of action yet the car park was not closed (obviously, if it was a retail park they were not turning away customers!) and neither were there any signs telling people what to do/how to pay as an alternative. Put UKPC to strict proof to the contrary.

    As such, any contract was frustrated, a term that POPLA must understand since the entire premise of private parking 'tickets' is precariously perched on the excuse of contract law.

    I'm in half a mind just to ignore the letters, but I'd like to get it out the way so I don't get 20 of them a year.
    UKPC sue people, so don't ignore this stage.
    Last edited by Coupon-mad; 03-10-2017 at 12:10 AM.
    PRIVATE PCN? DON'T PAY BUT DO NOT IGNORE IT TWO Clicks needed for advice:
    Top of the page: Home>>Forums>Household & Travel>Motoring>Parking Tickets, Fines & Parking - read the 'NEWBIES' FAQS thread!
    Advice to ignore is WRONG, unless in Scotland/NI.

    • jsmrtn
    • By jsmrtn 2nd Oct 17, 11:14 PM
    • 3 Posts
    • 1 Thanks
    jsmrtn
    • #5
    • 2nd Oct 17, 11:14 PM
    • #5
    • 2nd Oct 17, 11:14 PM
    Thanks Coupon-mad. I've amended by POPLA appeal to include the below. I cannot find any case law to support the frustrated contract point, so it would be appreciated if you're aware of any and how they would fit in.

    1. Frustration of Contract

    Frustration of Contact is defined as ‘The termination of a contract in circumstances where, for unexpected reasons, it is no longer possible for the parties to perform their obligations under the contract, without fault on either side.’ At the time of the parking charge being issued, it was not possible to purchase a ticket, as all machines in the car park were out of order.

    No contract could therefore be formed – it was not possible for me to purchase a ticket and UKPC failed to provide working machines to allow me to enter into a contract with them. With no alternative means provided by UKPC to purchase a ticket, the contract must be seen to be frustrated.

    Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the frustrated contract was deemed breached, so they have no valid claim for the £60 or any amount.
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