Paid but still had a ticket

EnigmaPart1

ampersand wrote: »

enigma - I see you posting a great deal, usually one-liners max., usually with no constructive or corrective input.

What does this say? ' bolt-on minor point though this would be.'

It would be good if you could mock up a draft for nc to work on and others to critique.
#
nc - I will try and put in a few hours on this tonight, but can't now.
'Forensic analysis' means just that. I think you should take each AR para., then fillet it phrase by phrase, showing where she is wrong and why, with confirming quotes, be they Regs, previous decisions, etc.

In addition, in this Fens village putah probs are notorious: &'s has already crashed and gone once today without warning.

I say what needs to be said
When it needs to be said
How it needs to be said
I dont beat around the bush nor i dress anything up.
I tell it how it is.

ampersand

Matter of opinion, in this case your own.

Coupon-mad

Try this complaint draft?




Dear POPLA

FORMAL COMPLAINT re procedural errors re POPLA code xxxxxxxxxx

This is a formal complaint because the Assessor has not conducted this appeal properly. It is my contention that the Assessor - perhaps inadvertently, but certainly to my detriment - has failed to apply due diligence to ensure all aspects of my appeal were considered thoroughly.

The POPLA website states POPLA is 'dedicated to providing easy and efficient dispute resolution for parking charge notices issued in respect of parking on private land' but this aim has failed in this instance. The Operator did not address all my points in its evidence and neither did the Assessor consider them, so this was a procedural impropriety, an error.

I require a review of the procedure because such omissions cannot be ignored, nor can the fact my words were changed by POPLA. My appeal points were as below. My notes are in red, re procedural errors by POPLA:


Appeal point 1.

The intention of PPS' charge prior to this parking event was not based on any genuine pre-estimate of loss, rather they always intended it to be a tariff and told POPLA that as a fact just six months ago. They have now massaged their POPLA evidence now to manufacture a 'loss' statement.
{I then went into more detail on this point}.

This was not properly considered by the POPLA Asssessor. This can be proved by the fact that this whole appeal point was incorrectly paraphrased (effectively changed in meaning) by POPLA, to this: 'The parking charge of £100 does not represent a genuine pre-estimate of the operator’s loss, and so is not enforceable.'

This was not even close to my words. POPLA have to consider my appeal wording, not change it to make it more generic and easier to address.

Because my words were changed by POPLA, the Operator failed to address my contention that the original intention of charges at this car park was as a tariff so the Operator could not change it afterwards, to suit. POPLA missed the fact that PPS had not addressed this, due to the 'dumbing down' of my words by POPLA's paraphrasing which cannot be allowed to happen in an independent appeals service. My appeal wording cannot be re-written by the Assessor, any more than an Operator's submission could be re-written to make it easier to answer.

The Assessor then only looked at whether the charge was a GPEOL, and still went against recent, consistent, POPLA decisions. In the public domain are two PPS cases decided in that same week by Christopher Monk, who dismissed the duplicated staff time/checks by Management, saying: ''quality control or management functions...are not activities which can properly be included in a genuine pre-estimate of loss arising from the charge. As it is not possible to ascertain how much of the sum is derived from the improperly included activities, the entire £71.65 claimed under this head must be disallowed.''. Why was the sum claimed under this head not disallowed in my case as well, if these 'management functions' cannot be included in a GPEOL? Is this a 'POPLA Assessor Lottery' and I was unlucky to draw the short straw that week?

PPS supplied an inflated sum of costs they contend arose due to this PCN, after the event and I had no reason to add any more to my appeal because I had already covered this eventuality. But in my case the POPLA Assessor accepted these figures, despite being against Mr Greenslade's directions (words which I had already quoted, to make my point) that a GPEOL must be ''an estimate of the loss which might reasonably be suffered, made before the breach occurred, rather than a calculation of the actual loss suffered made afterwards."

2. The parking company has no contract with the landowner that permits them to pursue these charges through the courts in their own name. {I then went into more detail on this appeal point and added that I was NOT querying the mere right to 'issue tickets' because anyone can issue notices}.

This was not properly considered; the Assessor merely looked at the easiest option, as to whether PPS could 'issue tickets', saying 'The operator has produced a witness statement signed on behalf of Plymouth City Council to demonstrate that it has the authority of the land-owner to issue parking charge notices at this site.' This does not address the appeal point made.


3. The ticket was purchased and displayed at 08:40 but no parking charge was issued until 1800, over 9 hours later {I went into detail explaining that the ticket was displayed on the dashboard, which the Operator's own pictures proved}.

The Assessor merely said 'the photographs appear to show that there is no valid ticket clearly on display. This phrase ' The photographs appear to show' is NOT the same as 'The photographs show', which would be the standard of proof I would expect POPLA to ascertain. Did the Assessor not receive the same photograph from PPS as me, which shows a close up of my dashboard with the ticket displayed?

The Assessor then contradicted herself 'I find that the windscreen was not obscured so much as to make any displayed tickets not visible to a parking attendant.' Therefore I should win this point; the displayed ticket in the photo was visible, then.


4. The upright signage at the entrance and around the car park created no contract with the driver to 'continuously display' parking tickets.
Not addressed at all by the Assessor. The word 'continuously' is key - and was overlooked. The Assessor cited this wording from the signs:

"- Payment is required at all times as stated on the tariff."
"- Do not leave your vehicle in this car park for any reason without displaying a valid ticket or permit."

And the Assesor then concluded: 'Consequently, I find that the operator has demonstrated that it took reasonable steps to bring the terms of parking to the attention of the appellant'. That conclusion missed the point; I had said that no signs say that a driver must 'continuously display' therefore there is no contract to 'continuously display'. The words quoted from the signs fail to address this point.


5. The amount required to park on the day had been paid and tickets had been displayed on the dashboard as required. PPS did not mitigate any 'loss'.

Not addressed by POPLA nor the Operator. The Assessor wrongly paraphrased my words again, changing them to a weaker contention: 'the appellant submits that he did pay for a ticket; however, a ticket must also be clearly displayed by the appellant'
'PPS did not mitigate any loss' was not even touched upon by PPS or POPLA.

6. The contravention as described did not occur.
{I explained that PPS own photos show the P&D ticket, so the Notice to Keeper was factually wrong in terms of contravention, and that a NTK must set out the reason why the charge has arisen and state any unpaid parking fees}.

The Assessor appears to have made her mind up already and repeats 'The photographs appear to show that there is no valid ticket on display' which is not borne out by PPS' photographs and overlooks the crux of the appeal point that this particular contravention 'as described' on the NTK did not occur so the NTK was factually wrong and that it did not state any unpaid parking fees.

I trust this complaint will be escalated to the Lead Adjudicator under the above circumstances and that POPLA will advise the Operator that the matter is under formal review. I do not expect to receive a standard reply telling me the Assessor's decision is 'final'. Please note I have not merely stated the decision was wrong (it was, and this will become apparent when the matter is properly considered). I hope this can be resolved without a complaint to the Independent Scrutiny Committee but the matters are serious, especially the incorrect paraphrasing of my appeal wording and the many points which were not addressed at all.

Yours faithfully,

newcruiser

Thank you Coupon-mad. I will send this letter today

EnigmaPart1

newcruiser wrote: »

Thank you Coupon-mad. I will send this letter today

NO!
You do not send a letter
You email it to Rreeve@popla.org.uk & egroombridge@popla.org.uk
With title:
For immediate attention of the lead adjudicator

newcruiser

Thanks, that is what I meant.

Coupon-mad

Give it a go and let us know! Don't pay and do NOT accept the 'fob off'!!

newcruiser

I have today received an acknowledgement from POPLA to say it will passed to the relevant person.

newcruiser

I have received the following reply from POPLA

As Lead Adjudicator I will consider a formal complaint about specific alleged misconduct by an Assessor. However, this is not the same as merely disagreeing with the Assessor’s decision.

Each case is determined on its own facts on the basis of evidence produced, and submissions made, by the parties. After making findings of fact, the Assessor will apply relevant law.

As to the points in your email of 22 October 2014:

• The issue raised was that the charge did not represent a genuine pre-estimate of loss, and so was not enforceable. When writing decisions, Assessors must paraphrase the wording of both parties in order to be concise. Both parties will be aware of the wording actually used. Provided the substantive points raised are addressed and mindful of proportionality, this is obviously the most sensible option. In this case the substantive point, that on which the appeal could be allowed, was that the charge did not represent a genuine pre-estimate of loss.

Assessors must decide each case on its own merits. Clearly, where an operator had lost an appeal in which the decision turned on the nature of the charge, one would expect the operator to have addressed this in the intervening six months. Your submission that it was not in fact the intention of the operator that the charge represent a liquidated damages clause was taken into account, although not explicitly referred to by the Assessor, who found that in this case the operator had in fact shown that its intention was for the charge to represent damages, and that the charge represented a genuine pre-estimate of loss.

You have referred to other cases of other appellants at POPLA. From the limited information you have given to identify them, it would appear that in those cases, although they involved the same operator, there were different heads submitted. This is why is it necessary to explain that each case is considered on its own facts.

• The Assessor correctly stated that membership of the British Parking Association does require operators to have authority of the landowner, if they are not themselves the landowner, in order to issue parking charge notices, but that where raised by an appellant; this issue must be dealt with by an operator. In this case the Assessor dealt with the issue as far as it is relevant to an appeal at POPLA. The operator demonstrated that it had authority from the landowner to issue parking charge notices in relation to this land. As POPLA is not a court, operators are not required to show that they have standing in the same sense they must before a court. Clearly, if an operator cannot show it has authority to enter into a contract with the driver, there will be no liability, but the question as to whether the operator would sue in its own name, or whether it acts as an agent for the landowner is not relevant to cases at POPLA, where the issue revolves around liability.

• The Assessor found that there was no ticket displayed. The sentence ‘I find that the windscreen was not obscured so much as to make any displayed tickets not visible to a parking attendant’ does not mean that the Assessor accepted there was in fact a ticket, but instead found that had there been a ticket, it would have been visible. As no valid ticket was clearly visible, there was no ticket displayed. The burden of proof, as regards the breach itself and the issue of the parking charge notice rests with the operator. The burden as regards any exemption that may be claimed rests with the party seeking to reply upon it. In English law there are two standards of proof. These are the criminal standard of being sure, or what used to be called ‘beyond reasonable doubt’, and the civil standard of a balance of probabilities, which is often explained simply as meaning ‘more likely than not’. It is the civil standard that applies in all cases in a parking appeal.

• The terms of parking required that vehicles not be left ‘without displaying’. The meaning of the word ‘display’ in this context will be decided by an objective assessment of the intentions of the parties at the time the contract was made. In the context of a pay and display car park, where the ticket represents proof of payment, it is clear that a requirement to display the ticket means that the ticket must be visible at all times. It was clearly not the intention of the parties that the driver could momentarily place the ticket in the window before removing it from view. This would not demonstrate to the operative proof of payment.

• As above, the Assessor found that the ticket was not in fact displayed. Further, the Assessor did mention that you raised the issue of mitigation of loss. Again, although not explicitly referred to in her decision, the Assessor addressed this by finding that the charge represented a liquidated damages clause. Although a pre-estimate of loss must be made following the usual rules of damages, and so made estimating that the operator would mitigate its loss, if the clause is found to be binding, the operator is not in fact required to actually mitigate its loss and accept a sum smaller than the charge advertised. The purpose of liquidated damages clauses is to fix the compensation in advance and avoid the costs and uncertainty of addressing damages after the breach has occurred.

• There also appears to be some confusion on your part about the notice issued. You responded to the notice to driver and although you refer to a notice to keeper in your email, no notice to keeper was produced by either party and there would be no reason for there to have ever been one. Therefore the provisions of Schedule 4 of the Protection of Freedoms Act 2012 do not apply in this case. The parking charge notice stated on its face that the reason for issue was ‘no valid ticket displayed’. As in all the statutory schemes, a valid ticket, permit, badge or other document required to be displayed, is only displayed as required if all relevant details can be seen to establish its validity. From the evidence produced, no valid ticket was displayed on this occasion.

The appeal was properly decided and I find no misconduct by the Assessor.

Yours sincerely,

Henry Michael Greenslade
Lead Adjudicator”

Yours sincerely,

Richard Reeve

EnigmaPart1

I refer people to my earlier comments that this decision had no procedural error.

Now if PPS start winning again on GPEOL (yes i know there have been one or two wins) this would then be a ripe candidate for the use of a service address.