HELP - PCN given when RingGo Payment would not work. 1st Appeal Rejected.

Josh647

Hi, Thank you to all who post to advise me on my PCN

I parked my car at Solihull Train Station Car Park on 15-Dec-2013 and paid coins machine for one day windscreen ticket whilst on a day trip to London. Thought I may need two days but did not understand how to pay for two days as no option on the coins machine. I read a large notice which gave options to pay online should I wish to pay for advanced day parking / extend for the 2nd day so this gave me the confidence to use the RingGo service for the first time if I needed to. When in London I decided to stay the night on the assumption that I could confidently pay RingGo for 16th December parking.

So on Sunday night (15th Dec) I created RingGo mobile aco!!!! at 10:50pm and tried to pay for Monday 16th Dec with my SmartPhone but service kept failing. It kept stating in red print 'This car park is currently free. Please refer to the nearby signage for the next charging period' :mad:

I then called the RingGo number before midnight and numerous times on Monday morning but the automated phone system does not have an operator option at all and I did not know the Solihull Station ID number. All attempts to pay via phone also failed without the station ID. Finally my mobile battery died.

I contacted my family via payphone Monday morning to login to my new website account and pay for a ticket to cover the 16th but they could only do so @ 12:29pm. On returning to my car late night on Monday 16th I found a penalty notice issued at 09:12am Monday 16th December. I genuinely tried many times to pay but the service just did not work.

I appealed the PCN to MET Parking services in London explained above with evidence from RingGo and phone statement showing I created an account and attempted paying but they rejected my appeal. They acknowledged everything but stated it is the drivers responsibility to Pay for parking before leaving the car unattended.

RingGo's website clearly states Solihull Station car park accepts advanced bookings or extension to existing days.

I've received my POPLA code from MET so can appeal to them and risk fine increasing to £100 or pay now £60 to finish this pain.

I realise I should have checked this forum before my first appeal as there is great advice from the users/community. I know that POPLA seem to be accepting around 60% of appeals to them in favour of the driver.

Do i stand a chance using genuine pre-estimate of loss as the charge is actually a penalty since I tried using their payment service which is poor and phone system had no option to speak with any operator so left me in the lurch. My car had a winscreen ticket for first day so surely no common sence for them to say I left without paying on 2nd day.

Sincere thanks to anyone who takes the time to reply and advise me on my path.

Coupon-mad

''Do i stand a chance using genuine pre-estimate of loss''


Welcome to MSE!

Well... POPLA accept 100% of our forum-aided appeals, have done since Easter 2013, as I do mention in the 'Private parking ticket? Newbies please read this first' sticky thread of FAQs advice at the top of the forum. You will win when you use a POPLA appeal version based on the examples linked in that advice thread, under a coloured link 'How to win at POPLA'

Easy, you'll win in about 6 weeks time. You can't have read quite enough yet if you are still calling this a 'fine' & a 'penalty'! It is neither. By the way where did you read the 60% figure because if it's in a thread here it is misleading, bearing in mind our record is 100%. A 60% figure was the case in the whole of the UK at first (in the first 6 months of POPLA) including all the naïve victims who never thought to Google it and come to a forum. That 60% has no place even being mentioned on this forum.

Big_Bad_Dad

Hello Josh

If only you came here before 'appealing', we might have given you even better advice. Generally speaking with window tickets, the procedure is to ignore it. You don't know for sure they will pursue the case but if they do, they would first have to buy your details from the DVLA - not your problem. Further to that, you cannot be held accountable for not replying to a windscreen ticket in any court since by the time it came to the parking company suing, it will merely be a dispute for one inflated sum between them and you, they wouldn't even know that the ticket was there when you returned. No recorded proof. Right now you have saved them the bother and money involved by giving them a head to hunt.

All else I have to say is per Coupon-mad above my post, not a fine, not a penalty, not enforceable either reduced or whole. It does not reflect losses to the landowner.

Did MET cite Railway Bylaws in their trash?

Big_Bad_Dad

...because if they did cite bylaws, we can surmise on account of the details posted that the claim would be false and as such, they would find themselves in hot water were the matter to go further.

CP Plus operate at some railways car parks and they falsely claim to enforce bylaws. Where I know this to be the case (Southwest Trains), those stations are not subject to the bylaws.

Josh647

Hi Coupon-Mad and Big Bad Dad,

Thanks for the very warm welcome to MSE. Man-Flu then busy at work kept me at bay hence the late reply. It's a great aided self-help service you are providing to users. Having read so much on the newbie links I can correct my language and call the parking ticket what it really is - a speculative invoice without legs.

I retract my 60% POPLA win figure that was initially used. I think it was from another forum, probably an old page on parkingcowboys stating the national fugure as a whole but can't remember now. Sorry for that. There was no intention to tarnish the 100% success that's running here.

To 'BIG BAD DAD', reminds me of Big Daddy in Kick-!!! Yes I should have Googled first and found the amazing support here but naively I thought MET would have some sense. Anyway they did not cite any railway bylaws. Simply stated that on technicality, it was the drivers responsibility to pay for parking before leaving vehicle unattended. Though their own photo evidence shows I did have a ticket.

See an interesting reply I kindly received from EricsBrother regarding 'Frustrated Contract between parties' and MET using Railway Bylaws when things went to court:

EricsBrother - Note their reason for rejecting your appeal-that it is the driver's responsibility to pay before leaving car unattended. You did this so that part of your contractual obligation was fulfilled and you can prove that you attempted to pay the additional amount but technical reasons to do with their third party payments provider prevented you from doing so. Put bluntly, this is not a breach of the parking conditions that would entitle them to claim the monies for breach of contract. What you have is a frustrated contract where both parties could not conclude their obligations and so you shouldnt have to pay anything else. Problem is, POPLA wont accept that as a reason for an online appeal so you will have to use the post to send in your appeal and evidence for consideration.
Now another thing that is of interest to followers of private parking is that Met gave you a POPLA number but when they threaten non-payerswith court they rely upon the Railways Act so it makes you wonder whetehr they actually have the authority to claim any losses in their own name because if they did bad parkers should be prosecuted for trespass upon railway property rather than getting a demand for cash. Go to POPLA with what you ahve and argue that MET havent proved a contract exists that allows them to claim in their own name (otherwise s14 Railways Act byelays 2004 would apply in this case and the land would not be "relevant land" under the PoFA) and cannot show a liquidated loss by your action and that you attempted to pay the prescribed fee for the overstay on your existing ticket by following the instructions issued to you by MET but their third party payment collector failed to perform its functions and caused the loss to MET, not you.


I thought the above may be useful to others.

prjohnsonnn10

I just posted up a couple of replies on other threads concerning MET and Chiltern Railway car parks.......... please have a read of them. Bottom line is that MET are in a real mess here and GPEOL at POPLA will be a success ..............or have a bit more fun and do what i did and ask for it to be cancelled as tickets and correspondance are ALL invalid as they all mis-reference PoFA when MET have stated they are actually collecting these charges under 'byelaws'. MET agreed and canclled my tickets !

Josh647

Here is my POPLA Appeal Letter sent today. Hope I aint shot myself in the foot with any errors... admittedly a lot of the text has been gleaned from the many examples given by the supportive community on here, thank you to all. Wish me luck!



Dear Sir/Madam (POPLA Adjudicator),

POPLA appeal code: xxx-xxx-xxx-xx, Vehicle Reg: XXXXXXX, MET ticket no: MP12345678

This is my appeal and summary of Incident: I parked in Solihull station car park on xx-Dec-2013 after 2pm and paid coins machine for one day whilst going on a London trip. Thought I may need two days parking but prominent signage on/above coins machine stated ‘STOP, pay using mobile… via RingGO’ (appendix 7). It was made clear I could pay for that day or subsequent days in this case a second day if required whilst physically being away from the station. Also coins machine did not clearly list what a 2 days charge amount was in £ figure but stated you can pay for 1 day, 2 days, 1 week etc. The red ‘STOP’ sign gave me absolute confidence to use the RingGo service for the first time in belief the system would work as promised via phone/website/android-app after registering if I needed the 2nd day. I purchased a 1 day ticket and attached to my windscreen then left.

Whilst in London on the day I decided I needed extra day parking to cover 16th December so tried to purchase a RingGo session at approx.10:50pm night of 15th December to cover 16th December. I telephoned RingGo to pay but service requested station ID code with no operator option to assist. I then registered for the RingGo service using my SmartPhone and tried to pay again multiple times but their system failed. The mobile phone version of the website kept stating the 'Solihull' zone was invalid. When it finally accepted location it stated in red print 'This car park is currently free. Please refer to the nearby signage for the next charging period' (appendix 1 Phone screen snapshots as evidence).

Due to issues with the poor 3rd party RingGo telephone payment service and then the mobile web version of RingGo resulting in errors leading into midnight of 15th I stopped trying. On early morning 16th December I contacted a family member by payphone, provided all login details to my new RingGo account but they only managed to make a payment at 12:29pm. Unfortunately by then my car had received a ‘Notice to Driver / Parking Charge Notice’ a few hours earlier with MET ticket number MP42521802. (appendix 5 Parking Charge Notice & Paid Windscreen Ticket)

The paid RingGo session details were (VAT receipt attached appendix 2):
Start time: 2013-12-xx 12:28
End time: 2013-12-xx 23:59
Parking Location: Solihull Station Car Park, Solihull (2607)
VRN: xxxxxxx

I appealed to MET within 14 days (appendix 6) providing strong mitigating evidence as also provided here in appendices but was rejected. Evidence included verifiable time stamped screen shots of RingGo payment attempt, telephone records showing numerous RingGo calls made (appendix 3) and eventual VAT receipt of RingGo payment session for xxth December at 12:29pm. After appealing to RingGo, they replied on xxth December stating:
[FONT=&quot]‘We can confirm you Joined RingGo on : 15 Dec 13 23:31
We can advise payment was attempted on 15 Dec 13 23:32.[/FONT][FONT=&quot]’[/FONT]
(appendix 4)

I further wrote to MET with new evidence from RingGo (appendix 4) and also stated the various additional legal arguments I would make in my POPLA appeal such as ‘NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS’. They wrote back on 21st Jan 2014, acknowledging new evidence (appendix 4) but did not acknowledge legal points raised, some of which are below. My appeal was once more rejected by MET.


OTHER POINTS AGAINST AND IN RELATION TO THIS CHARGE

MET PARKING SERVICES UNCLEAR AND NON-COMPLIANT SIGNAGE
On entry to this Solihull parking sight, there is a small sign on the right that is in a very high position, has bright colours and barely legible size of the small print for any driver to read and understand. I contend that the signs and any core parking terms MET are relying upon were too small for any driver to see, read or understand whilst simultaneously being in motion driving into the car park.

I request that POPLA verify the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. I contend that the signs and machines in that car park (wording, position, and clarity) do not comply and fail to properly warn/inform the driver of the full terms and any consequences for breach, as in this case of ‘Excel Parking Services Ltd v Martin Cutts, 2011’ and;


[FONT=&quot]In Mendelssohn v Normand Ltd [1970] 1 QB177 Lord Denning MR at 182 dealt with the question whether a term on a notice board at a car park might have been incorporated into a contract where it was not obvious as the driver came in but was obvious when paying for parking at the end, and where the plaintiff had parked often before. He said:[/FONT][FONT=&quot][/FONT]
[FONT=&quot]“He may have seen the notice, but he had never read it. Such a notice is not imported into the contract unless it is brought home to the party so prominently that he must be taken to have known of it and agreed with it.”[/FONT][FONT=&quot][/FONT]
[FONT=&quot]
So in addition, because the signs fail to properly inform drivers of the full terms & conditions in a very prominent place at a low enough height at the entrance on the drivers side, the elements of a[/FONT][FONT=&quot] [/FONT][FONT=&quot]contract[/FONT][FONT=&quot] [/FONT][FONT=&quot]have not been met[/FONT][FONT=&quot].[/FONT][FONT=&quot] Any alleged[/FONT][FONT=&quot] [/FONT][FONT=&quot]contract would[/FONT][FONT=&quot] [/FONT][FONT=&quot]be formed at the entrance to the premises, prior to parking.[/FONT][FONT=&quot] [/FONT][FONT=&quot]It is not formed after the[/FONT][FONT=&quot] [/FONT][FONT=&quot]vehicle has already been parked, as this is too late[/FONT][FONT=&quot]. [/FONT][FONT=&quot]

[/FONT]

CONTRACT WITH THE LANDOWNER - NOT COMPLIANT WITH THE BPA CODE OF PRACTICE AND NO LEGAL STATUS TO OFFER PARKING OR ENFORCE TICKETS
MET [FONT=&quot]have not provided me with any evidence that they are lawfully entitled to demand money from the driver or keeper. They do not own nor have any proprietary or agency rights or assignment of title or share of the land in question. I do not believe that MET Parking Services has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park they do not own, or indeed the lawful status to allege a breach of contract in their name. [/FONT][FONT=&quot]

[/FONT][FONT=&quot]I request MET provide POPLA documentary evidence in the form of a full copy of the original [/FONT]contemporaneous[FONT=&quot] site agreement/contract with the landowner/occupier signed and dated (not just a signed slip of paper saying it exists). Specifically, to comply with the Code of Practice, the contract needs to specifically grant MET the right to pursue parking charges in the courts in their own name, as creditor.[/FONT]


It is widely known that some contracts between landowner and a parking company have ”authority limit clauses” that specify that parking companies are limited in the extent to which they may pursue motorists. One example from a case in the appeal court is Parking Eye –v- Somerfield Stores (2012) where Somerfield attempted to end the contract with Parking Eye as Parking Eye had exceeded the limit of action allowed under their contract.
In view of this, and the British Parking Association (BPA) Code of Practice section 7 that demands that valid contract with mandatory clauses specifying the extent of the parking company’s authority, I require MET Parking Services to produce an actual copy of the contract with the landowner that shows POPLA that they do, indeed have such authority.

It has also been widely reported that some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory on behalf of the landowner has ever seen the relevant contract, or, indeed is even an employee of the landowner. I require, if such a witness statement is submitted, that it is accompanied by a letter, on landowner’s headed notepaper, and signed by a director or equivalent of the landowner, confirming that the signatory is, indeed, authorised to act on behalf of the landowner, has read the relevant terms of the contract and is qualified to attest to the full limit of authority of the parking company

I also do not believe that MET has the necessary legal capacity to enter into a contract with a driver of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract (as evidenced in the Higher Court findings in VCS v HMRC 2012). I say that any contract is also not compliant with the requirements set out in the BPA Code of Practice.

Furthermore, I note that MET parking has not been engaged by the landowner (Solihull Council), but by a lessee or tenant of the land (Chiltern Railways). I require proof from the actual landowner that their contract with the lessee/tenant gives authority for any form of parking restrictions or charges to be brought in. (There are VAT implications when a car park is a revenue generating business that may impact upon a landowner and that is why it needs to be established that they need to have granted permission in their lease."

NO CONTRACT WITH THE DRIVER AND UNFAIR TERMS
There is no contract between MET and myself but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999:

Unfair Terms
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.''

METs’ reason for rejecting my original appeal is that it is the driver's responsibility to pay before leaving car unattended. I did pay for ticket on 15th December before leaving car so that part of any contractual obligation was fulfilled. I have also proved that I attempted to pay the additional amount but technical reasons to do with their third party payments provider prevented me from doing so. This is clearly not a breach of possible parking conditions that would entitle MET to claim the monies for breach of any alleged contract. This situation is more akin to an alleged frustrated contract where both parties could not conclude obligations.

[FONT=&quot]Furthermore, if MET are alleging that this ticket is a contractual sum then why are they not adhering to any of the regulations surrounding VAT? They did not provide me with a VAT invoice which states what service I apparently would have received in exchange for the 'charge' if I had chosen to stay in the car park and potentially had become liable (which I have shown that I did not, and so was never liable). The BPA have stated categorically that private parking charges do not attract VAT (based on the VCS -v- HMRC 2013 appeal decision) and therefore it follows that private parking charges cannot be a contractual matter, and can only represent a genuine pre-estimate of loss. A private parking company cannot allege a contract exists on the one hand (for POPLA and for the public) and yet suggest it's non-contractual and therefore a non-VAT matter (for HMRC).[/FONT]

NO BREACH OF CONTRACT AND NO GENUINE PRE-ESTIMATE OF LOSS
MET are clearly attempting to enforce their charge under paragraph B 19.5 of the BPA Code of Practice as they suggest my situation constituted a breach of a non-prior agreed contract. As such, they must be required to validate this argument by providing POPLA with a detailed financial appraisal which evidences the ‘genuine pre-estimated amount of loss or damages’ in this particular car park for this particular 'contravention'.

Since I paid and displayed for first day and paid for second day via RingGo and no damage was caused, there can have been no loss arising from this incident. Neither can MET lawfully include their operational day-to-day running costs in any 'loss' claimed. I contend there can be no loss shown whatsoever; no pre-estimate (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance. See case reference below;

[FONT=&quot]Parking Eye v Smith (Manchester County Court December 2011)[/FONT][FONT=&quot] is a more relevant and persuasive case than the Somerfield (contract with a Store) case Parking Eye cite. At the Parking Eye v Smith hearing the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.[/FONT]

As I attempted to pay the prescribed parking fee for the overstay on my existing ticket of 15th Dec by following their own instructions on the coins machine provided by MET and that their third party payment collector RingGo failed to perform its functions, any possible loss to MET has been caused by RingGo as proved by their admission in ‘appendix 4’.

UNLAWFUL PENALTY CHARGE
Since there was no demonstrable loss/damage and yet a breach of contract has been alleged, it can only remain a fact that this 'charge' is an attempt at dressing up an unlawful penalty to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OBServices v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

[FONT=&quot]In the case of Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd, Lord Dunedin offered as tests which might prove "helpful, or even conclusive":

"(A) It will be held to be penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach..….

(B) It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid ….. This though one of the most ancient instances is truly a corollary to the last test. Whether it had its historical origin in the doctrine of the common law that when A. promised to pay B. a sum of money on a certain day and did not do so, B. could only recover the sum with, in certain cases, interest, but could never recover further damages for non-timeous payment, or whether it was a survival of the time when equity reformed unconscionable bargains merely because they were unconscionable ….. is probably more interesting than material.

(C) There is a presumption (but no more) that it is penalty when "a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage".

And in Lordsvale Finance Plc v. Bank of Zambia [1996] QB 752, 762G,
discussing Dunlop:

"whether a provision is to be treated as a penalty is a matter of construction to be resolved by asking whether at the time the contract was entered into the predominant contractual function of the provision was to deter a party from breaking the contract or to compensate the innocent party for breach. That the contractual function is deterrent rather than compensatory can be deduced by comparing the amount that would be payable on breach with the loss that might be sustained if breach occurred."

This statement has been approved by the Court of Appeal in Murray v Leisureplay plc [2005] IRLR 946.

And from the Office of Fair Trading, Guidance re Unfair Contract Terms:
''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

[/FONT]

[FONT=&quot]BREACH OF UNFAIR TERMS ACT 1997 and BREACH OF UTCCR 1999[/FONT][FONT=&quot]
Finally, I believe MET are in breach of the Unfair Terms Act 1997 and Unfair Terms in Consumer Contract Regulations 1999 (UTCCR):

Schedule 2, paragraph 1:
...terms may be unfair if they have the object or effect of:

(e) requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation.

Unfair Terms
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.

[/FONT]
On the basis of all the points I have raised, this 'charge' fails to meet the standards set out in paragraph 19 of the BPA CoP and also fails to comply with the CPUTR 2008, the UTCCR 1999 and basic contract law.

This ‘charge’ is unfair and punitive and, as such, I respectfully request that this appeal be allowed.

Yours faithfully,
XXXXXXXXXX

Appendices Documents Attached/Enclosed:


Appendix 1:
3 x SmartPhone screen shots showing errors on night of 15th December at 22:55. When successfully registering with RingGo website and trying to make a payment for parking for 16th December I got the message ‘This car park is currently free Please refer nearby signage for next charging period’. I tried multiple times but could not buy a RingGo session for 16th.

Appendix 2:
VAT receipt for ticket purchased using online service xxth December at 12:xx pm. My Smartphone battery had died by the xxth so I used a payphone to call a family member to login to my new account and purchase a RingGo session. They could only make payment by above time which was too late as already received a PCN by then.

Appendix 3:
RingGo was called on 15th December to pay for a session but that did not work. Phone call records showing other multiple call attempts made on 16th December to pay for the day. However the phone system gave no option to choose a station. It wanted to know the exact station ID which I did not know. There was no operator option for help.

Appendix 4:
RingGo Technical Support Enquiry reply on end Dec 2013, proving account creation and payment attempt made on 15th December for 16th December.

Appendix 5:
PDF Copy of PCN issued on 16th Dec at 9:xx am. Also included in the scan is a windscreen parking ticket purchased on 15th December covering me until 02:30 16th December. It’s this that I was trying to extend by trying to pay RingGo for session covering me for 16th December.

Appendix 6: Copy of1st MET Parking Services PCN Appeal Letter Sent Dec 2013

Appendix 7: Photo of actual payment/coins machine taken on premises of Solihull Station car park on mid January 2014

Josh647

Hi,

An update for all and especially Coupon-Mad and Big Bad Dad. My Poppla appeals hearing was submitted via online with all photo and pdf document evidence uploaded via their website. All worked fine. I received an email few days later stating appeal date is 6th March and my evidence was forwarded to MET Parking Services for consideration.

Just two days back on 3rd Feb Poppla wrote back stating MET cancelled the parking ticket so the appeal has been allowed by the adjudicator. Wohooo!!

Regards
Josh

Umkomaas

Another MET cave-in when faced with a well prepared and robust appeal.

Well done Josh!