MSE News: British Parking Association agrees to face its critics

oldone_2

peter_the_piper wrote: »

I think its both brave and risky for the bpa rep to post on here, if we give him a bit of slack we may convince him of the error of his members ways. WE know that most, if not all, bend and stretch the truth in the effort to squeeze money out of the unsuspecting. Its not the ones who post here and Pepipoo who need the ppc's to be brought under control its all those who don't know about these forums and just cough up.

Let us not forget BPA is a trade association that derives its income from membership fees. They are hardly going to remove wholesale companies that break their code of practice as that would hit their revenue stream, in much the same way PPC's are going to 'bend the rules', to protect their income.

If we are to have PPC's, then as a start there should be an independent body, with no connection to the Parking Industry, that the motorist can appeal to. No money to be paid to the PPC until the appeal has been heard.

Coblcris

Thank you for responding.

There is precedent that says on the balance of probabilities the driver of a motor vehicle is the registered keeper unless the registered keeper advises to the contrary. This is why parking companies write to the registered keeper seeking payment for breach of contract. The keeper is at liberty to advise who was driving at the time if they weren’t.

Quote the binding precedent to which you refer.

You have failed to mention that the Registered Keeper is also perfectly at liberty to not supply any information at all. And you have failed to mention that the Registered Keeper is under no legal obligation whatsoever to provide driver information.
A further point there is a legal difference between 'Keeper' and 'Registered Keeper', you have conflated the two erroneously rather in the way that your members do in their 'Notice to Owner' in which they typically claim ' you were the driver/owner//hirer/keeper' which not only mimics council Notices it addresses four different legal entities. Which one is reading the 'Notice' ? Which one was it sent to ?

More of this later in this response.


Coblcris


To clarify, the BPA do not want to take on a judicial role. Any appeals or adjudication process that is put place to regulate off-street private parking needs to be completely neutral. The BPA is a voluntary member association for the parking industry and therefore could not (and does not want to) take on this role. We have made this very clear. The Daily Mail, early last week, suggested that we might be able to (which is where you may have picked up this idea from) but we have written to the Mail to clarify that the BPA does not want to take on the role of an adjudicator.

Thank you for clarifying this. I agree that this is a wise decision on your part and applaud you for it.

Oldone/coblcris/coupon-mad

It is correct that we have not yet expelled any members although we are currently in the process of fully investigating two members for serious breaches of the Code.There were also many companies who applied to be members and were turned away.

Whilst we appreciate that expelling a member would seem to be the ultimate punishment and perhaps seem like the most satisfying outcome for the public, as the current situation stands (i.e. there is no requirement to be a BPA or other ATA member) it would only result in that company still being able to practice and not having any Code of Practice to comply with at all. We firmly believe that rectifying the issues by working with the company to sort out the problems is a better solution than expelling a company and not having any contact or influence with them in the future.

Expelling doesn't seem to be the ultimate punishment, it is the ultimate punishment you can administer failing legal action.
You fail to mention that you have made all your members sign up to the amended Code.
As one single example among many candidates I refer to your "NOTE 3.08: CODES OF PRACTICE FOR PARKING ENFORCEMENT ON PRIVATE LAND & CONSUMER PROTECTION LAW"
which says
"2.2 The paragraph 67) A) (Enforcement Action on outstanding parking tickets – Notice to Owner - page 13); this “letter to the owner” should make no reference to asking for payment but should specifically point out the details of the contravention and request that the owner furnish the details of the driver at the time the charge was incurred.
3. Implementation
3.1 Because of the importance and possible implications of this information, these amendments are to be implemented immediately. Members involved in ticketing operations should contact BPA to confirm receipt and acknowledgement of this notice, and should contact BPA again to confirm an implementation timescale within a week of sending the first e-mail."

By all the examples we have on here, and in other easily located sources, not one of your members has actually implemented this change and yet you have done nothing about it.
Such failure makes the BPA liable to lose its ATA status viz:-
"Approved Conditional Access (ACA) for Electronic Access
Some companies have Approved Conditional Access (ACA) which allows them to request and receive data via a secure electronic link. These links are operated in the context of clear terms of agreement detailing when information may be requested, how it can be used and how it should be stored. Transactions are subject to audit and review.
All companies now seeking ACA status must first serve a six-month probationary period using manual enquiry forms. Any complaints are logged and closely monitored. On completion of a satisfactory probationary period an electronic link may be established. All companies or organisations that do not have a statutory regulator are required to be a current member of a DVLA Accredited Trade Association (ATA).
Associated Trade Associations (ATA)
All ATAs must have an enforceable Code of Practice (COP) governing the conduct and business practices of their members. All ATAs have to:
• maintain records on all complaints and their resolutions
• monitor compliance, ensuring members act in accordance with the COP
• undertake to expel any member who fails to comply with the COP and notify DVLA with 24 hours of the suspension/expulsion of any member
• investigate at DVLA’s request any complaints about alleged breach of the COP or inappropriate use of information and report on the outcome
Those ATAs who fail to enforce their COP will lose their accreditation and their members will forfeit their entitlement to request and receive DVLA data electronically. This requirement is being enforced consistently for all ‘unregulated’ bodies, regardless of the industry in which they operate.
Any organisation that wants to apply to become an ATA should write to Policy Casework and Advice, Zone 1/D16, DVLA Swansea SA6 7JL for the criteria for becoming an ATA."

And yet you have admitted that you do not enforce your own Code.

Alx*27

It is not for the BPA to comment on any particular form of action used. The BPA believes that it would be fairer for everyone if the law was able to define and describe a ‘parking ticket’ and that a universal form existed for all operators – this is currently not the case and therefore confusing for all.

Until the government makes this happen and better regulation comes in to existence car park operators will have to interpret the Law of Contract and Consumer Protection Regulations themselves. This can, and does, lead to a variety of documents and forms which sometimes cause confusion and uncertainty amongst the motorist.

Where a motorist decides to park on a piece of private land and there is a risk of trespass or breach of contract a landowner will have the right of redress which is usually delivered in the form of parking enforcement notice The ‘parking ticket’ is an easily understood mechanism for communication between the landowner (or his agent/operator) and the motorist and therefore is regularly used. Clarity in this area is a must and we hope the government will act soon on this.

"easily uinderstood". I beg to differ. Your association isfully aware of the implications of The Consumer Protection from Unfair Trading Regulations 2008 following discussion you had with Trading Standards and yet every set of papers we see from you members runs riot through these regulations.
'Implementing' your code has you have done protects the BPA itself from these regulations, ref reg 4 which is directed at the Code owner which lays down that:
‘The promotion of any unfair commercial practice by a code owner in a code of conduct is prohibited’.
Whilst not a criminal offence, this will enable enforcers to take civil action to stop code-owners promoting non-compliance.But you have not raised one civil action despite the widespread breaches. You have not even expelled anyone.

As for how these regulations speak to the actions of your members I mention just a few aspects for the time being.
Material distortion
"materially distorts’ is defined by reg 3(4) as
‘using a commercial practice to appreciably impair the consumer’s ability to
make an informed decision, thereby causing the consumer to take a transactional decision that he would not have taken otherwise’."

"Reg 3 of the CPRUT purports to set out all the circumstances where a trader commits a prohibited unfair commercial practice (reg 3(1)). Regulation 3(5) recognises three (possibly overlapping) classes of transgression by unfair commercial practice,which may therefore prima facie amount to criminal offences:

There is an irrebuttable presumption that all such practices in all circumstances amount to a breach of professional diligence by a trader and a material distortion in the behaviour of a typical consumer, which causes a transactional decision. This is prohibited in all circumstances (reg 3(5)(d)) and prima facie amounts to a strict liability offence.

The following classes of commercial practice are unfair (reg 3(5)(a)-(c)) and hence
prima facie amount to strict liability offences:
(I) Misleading actions (reg 5);
(ii) Misleading omissions (reg 6);
(iii) Aggressive practices (reg 7).

Misleading acts. Reg 5 explains when a practice is unfair because of what it positively contains. Reg 5(1) stipulates that a commercial practice is ‘a misleading action’ if it leads a ‘typical consumer’ to take a ‘transactional decision’ which he would not otherwise take and falls within one of the following types:-
1. Misleading information generally. According to reg 5(2)(a), a commercial practice may fall within this type - ‘if it contains false information and is therefore untruthful in relation to any of the matters in paragraph (4) or if it or its overall presentation in any way deceives or is likely to deceive the typical consumer in relation to any of the matters in that paragraph,even if the information is factually correct’.
‘False information’ is defined as ‘untruthful’;

Aggressive commercial practices. The CPR has a special regime for practices which
intimidate or exploit consumers, what it terms ‘aggressive commercial practices’. Reg 7(1) defines a ‘commercial practice’ as ‘aggressive’ -
‘if, in its factual context, taking account of all of its features and circumstances—
(a) it significantly impairs or is likely significantly to impair the typical consumer’s
freedom of choice or conduct in relation to the product concerned through the use of harassment, coercion or undue influence; and
(b) it thereby causes or is likely to cause the typical consumer to take a transactional
decision he would not have taken otherwise

This requires a commercial practice which ‘in its factual context, taking account of all
of its features and circumstances’ does all the following:-
(i) By the use of harassment, coercion or undue influence
(ii) Significantly impairs, or is likely significantly likely to impair, the typical consumer’s freedom of choice in relation to the ‘product’ concerned.
(iii) The typical consumer is therefore likely to take a different transactional decision
In deciding whether the foregoing factors are satisfied, reg 7 casts a wide net,
referring to any of the following matters in relation to the aggressive commercial practice (reg 7(2)):-
‘(a) its timing, location, nature or persistence;
(b) the use of threatening or abusive language or behaviour;
(c) the exploitation by the trader of any specific misfortune or circumstance of such gravity as to impair the consumer’s judgment, of which he is aware, to influence the consumer’s decision with regard to the product;
(d) any onerous or disproportionate non-contractual barrier imposed by the trader where a consumer wishes to exercise rights under the contract, including rights to terminate a contract or to switch to another product or another trader; and
(e) any threat to take any action which cannot legally be taken’
If a commercial practice misleads in relation to a matter not specified in reg 5(4), it has been said (by the "DTI, Implementation of the UCPD: Consultation on the Draft CPR") that its unfairness will have to be assessed in relation to the duty not to trade unfairly (reg 3).


A general duty not to trade unfairly (reg 8), which only applies where
a trader intends or is reckless as to breach of the standards of professional diligence,
so amounting to a mens rea offence in respect of the trader’s conduct. As usual,
this conduct is only penalised where it leads to a material distortion in the behaviour of a typical consumer, which causes a transactional decision.
According to reg 8(1) -
‘A trader is guilty of an offence if—
(a) he knowingly or recklessly engages in a commercial practice which contravenes the requirements of professional diligence; and
(b) the practice materially distorts or is likely to materially distort the economic behaviour of the typical consumer (within the meaning of regulation 3(4)) with regard to the product’.

Breach in any of the above ways is a (prima facie) criminal offence (reg 12).
Finally, it should be borne in mind that there is in respect of the above offences also
a system of collective civil enforcement under Part 8 of the Enterprise Act.
"

You members signed up to Code revesions but for the overwhelming preponderance of evidence none of thme have applied 'professional diligence' in my opinion.

And you as the Code owner have not done anything about it depsite having the power to expel and to raise cicil action against your members

In relation to the NCP ticket example:

There are many Railway Byelaws under the various Railways Acts and these are legally enforceable. The train company or station operator may use contractors to undertake this parking enforcement. It is a matter for the railways how they do this and any appeals to such enforcement acts must be made using the mechanisms established by the Railways Acts and Byelaws.

Transport Act.
And it is matter for the contractor to operate within the law. Claiming civil action on the baiss of a purported statutory provision is in my opinion outwith the law, both statute and common.

I hope I've answered all the points made but please do come back to me if I've missed anything or something needs clarifying.

Thank you, I have done so in line with the text.

trevormax

What is the point of the BPA?

BPACR has pretty much admitted the BPA is powerless to do anything to these companies as they don't need to be part of the BPA to carry out their "business" (can fraud be considered a business?), and even if the BPA expell one of their member companies, the company will just continue without any code of practice to follow.

A very relevant quote comes to mind when thinking about the BPA - "you're about as usefull as a c*ck-flavoured lollypop"
Patches O'Houlihan: Dodgeball

Coblcris

They are not powerless, see my somewhat lengthy post above(for which I make no apologies to its length by I do for the minor spelling errors committed in haste), they can not only expel members they can also take civil action against them.

Vomityspice

BritishParkingAssociation_company_representative wrote: »

I believe there is a precedent however I am not familiar with it off the top of my head (I was provided with this information by a colleague). I will check this and get back to you.

If I made a legal declaration, without proper authority, my next legal meeting would likely be with the SRA (Solicitor's Regulation Authority). Undoubtedly, I would have a sanction imposed (Misconduct!).

However, you are suggesting that your illusory 'precedent' is now based on third party information! Yet you seem only too willing to publish this misinformation without any form of checking?

I suspect no sanction will be imposed on your effort to misinform.... especially as you are a beneficiary of this deception!

I can help you out though, I've done a comprehensive search on both Lexis Nexis and Westlaw and can find no cases where such a statement has EVER been made, even orbita.

Happy to publish the full case details if you give me a case reference?

In the alternative it would be helpful, until you cite precedent, to completely withdraw this statement as it is legally incorrect. I'm certain, as a representative of the BPA you would not be wanting to providing information that is not both accurate and legally correct?

jkdd77

Am I being too cynical to suspect that they might be trying to falsely parade Combined Parking Solutions vs Stephen Thomas (2008) as being case law, when of course it is no such thing?

If I am wrong, then I unreservedly apologise, and I will withdraw these remarks as soon as hard evidence is provided that my cynicism is misplaced.

trisontana

It would be interesting to see if the BPA have any legally qualified people on their staff. If they have, then they seem to have been feeding the BPA with a load of duff information I say this because this organization doesn't seem to know much about the laws of contract, trespass and the one about demanding unfair penalties.

Paul_Herring

trisontana wrote: »

It would be interesting to see if the BPA have any legally qualified people on their staff. If they have, then they seem to have been feeding the BPA with a load of duff information I say this because this organization doesn't seem to know much about the laws of contract, trespass and the one about demanding unfair penalties.

I suspect they do have legal advisers, but have neglected to inform them of this little attempt at botched public relations.

No doubt there'll be gasps of horror when they find out.

Coblcris

The BPA has 'taken legal advice'. See my previous somewhat lengthy post that discusses The Consumer Protection from Unfair Trading Regulations 2008.

Paul_Herring

By "this botched attempt at [PR]" I'm referring to their posting on here.