N**ier PCN

Lloyd12

Small update for this case...received a reply to the soft appeal

'thank you for your appeal [...] we can confirm that the case is now on hold and we will reply within 35 days from the date that it was received'

They do not specify the date they received it.

I think this is within the bounds of the proper process with the regards to how the PPC should operate, can anyone confirm?

Coupon-mad

Yes it is. When you get to POPLA stage, pm me if you want an up to date POPLA appeal as I am writing one about N''''r car parks & PCNs for another poster now.

Lloyd12

Coupon-mad wrote: »

Yes it is. When you get to POPLA stage, pm me if you want an up to date POPLA appeal as I am writing one about N''''r car parks & PCNs for another poster now.

CM your inbox is full and I need to PM you!

Let me know when I can please...thanks

Lloyd12

Coupon-mad - I think I just sent you a PM as I didn't get the message saying your inbox is full, but my sent messages says 0 - let me know if it comes through

Thanks

Lloyd12

Deleting this post

Lloyd12

This was won at POPLA - attached it to the stickie.

Had to delete some of the posts here in case POPLA was refused (didn't want the legal eagle hired by Napier to start sifting through the initial communications looking for slip-ups!)

There was a lot of back-and-forth between appealant and Napier on this case - happy to post it all here if that is helpful.

Thanks again coupon-mad - couldn't have done it without your help

Coupon-mad

Do post it here if you can, Lloyd12, it would help others.

Lloyd12

POPLA Verification Code: xxxxxxxxx
Vehicle registration number: XXXXXXX

Background
I am the registered keeper of the above vehicle. The car was parked with full permission from a resident who has a paid-for permit and is leasehold owner of the flat. The flat owner has a right to park a car in that allocated bay. Napier - a third party agent, not landowners - allege the permit was not displayed for a few minutes and somehow that allegation caused them a £95 loss.
My full appeal is based on six points:

1. No contract formed and it has been formally rejected by me as a consumer
There must be consideration from both sides. In this case, there was no consideration flowing from both the driver and Napier and no express agreement of terms. In addition, I have served notice to Napier that I have cancelled the contract (which was denied anyway) on the basis they failed to meet the new requirements of consumer contract information that must be set out in any contract that dates from 13th June 2014 and was not negotiated and completed face-to-face. Napier have failed to offer a fair consumer contract so I have cancelled it (see point 2).

2. Failure to comply with the Consumer Contracts (Information, Cancellation and Additional Payments) Regulations 2013
Napier have failed to supply the required contractual information in a durable medium, and failed to advise of a consumer’s right to withdraw, as defined in these UK Regulations: http://www.legislation.gov.uk/uksi/2013/3134/pdfs/uksi_20133134_en.pdf
The Regulations apply to all UK consumer contracts from 13th June 2014 and parking contracts are not a listed exemption. This is a service contract* offered by written terms in print on a sign by means of distance communication (i.e. not a face-to-face contract in the simultaneous physical presence of the trader and the consumer). In the UK Regulations:
* “service contract” means a contract...under which a trader supplies or agrees to supply a service to a consumer and the consumer pays or agrees to pay the price.''
From the EU Guidance behind the Directive upon which the UK Law is based:
http://ec.europa.eu/justice/consumer-marketing/files/crd_guidance_en.pdf
''Service contracts...should be included in the scope of this Directive, as well as contracts related to...the rental of accommodation for non-residential purposes.
For example, renting a parking space...is subject to the Directive. ''

Part 4 of these Regs has provisions concerning protection from unsolicited sales and additional charges which have not been expressly agreed in advance (this was an unsolicited ‘service’ not expressly agreed in advance by the driver, and the permit was already paid for by the resident, so there were no agreed additional charges and this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 in that a consumer is not required to pay for unsolicited supply of goods or services (the NTK is an unsolicited invoice as the terms were not expressly agreed in advance).
Regulation 40 provides that a consumer is not required to make payments in addition to those agreed for the trader’s main obligation, unless the consumer gave express consent before conclusion of the contract (no payments were expressly agreed because the driver relied upon the resident having permission for use of that allocated bay and was unaware of other terms).

Information breaches of these Regulations:
Napier have failed to serve in a durable medium, ANY information as defined in these Regulations for Distance Contracts (i.e. not face-to-face) as set out in Article 13:
Information to be provided before making a distance contract (13)
—(1) Before the consumer is bound by a distance contract, the trader — (a) must give or make available to the consumer the information listed in Sch. 2 in a clear and comprehensible manner, and in a way appropriate to the means of distance communication used, and
(b) if a right to cancel exists, must give or make available to the consumer a cancellation
form as set out in part B of Schedule 3.
(2) In so far as the information is provided on a durable medium, it must be legible.
(3) The information referred to in paragraphs (l), (m) and (n) of Schedule 2 may be provided by
means of the model instructions on cancellation set out in part A of Sch.3;
(4) Where a distance contract is concluded through a means of distance communication which
allows limited space or time to display the information—
(a) the information listed in paragraphs (a), (b), (f), (g), (h), (l) and (s) of Schedule 2 must be
provided on that means of communication in accordance with paragraphs (1) and (2), but (b) the other information required by paragraph (1) may be provided in another appropriate way.
(5) If the trader has not complied with paragraph (1) in respect of paragraph (g), (h) or (m) of
Schedule 2, the consumer is not to bear the charges or costs referred to in those paragraphs.
(6) Any information that the trader gives the consumer as required by this regulation is to be
treated as included as a term of the contract.
(7) A change to any of that information, made before entering into the contract or later, is not effective unless expressly agreed between the consumer and the trader.
Confirmation of distance contracts (16)
—(1) In the case of a distance contract the trader must give the consumer confirmation of the contract on a durable medium.
(2) The confirmation must include all the information referred to in Schedule 2 unless the trader has already provided that information to the consumer on a durable medium prior to the conclusion of the distance contract.
(3) If the contract is for the supply of digital content not on a tangible medium and the consumer has given the consent and acknowledgment referred to in regulation 37(1)(a) and (b), the confirmation must include confirmation of the consent and acknowledgement.
(4) The confirmation must be provided within a reasonable time after the conclusion of the contract, but in any event—
(a) not later than the time of delivery of any goods supplied under the contract, and
(b) before performance begins of any service supplied under the contract.
(5) For the purposes of paragraph (4), the confirmation is treated as provided as soon as the trader has sent it or done what is necessary to make it available to the consumer.

Burden of proof in relation to off-premises and distance contracts (17)
—(1) In case of dispute about the trader’s compliance with any provision of regulations 10 to 16, it is for the trader to show that the provision was complied with.
Cancellation period extended for breach of information requirement (31)
—(1) This regulation applies if the trader does not provide the consumer with the information on the right to cancel required by paragraph (l) of Schedule 2, in accordance with Part 2.
(2) If the trader provides the consumer with that information in the period of 12 months beginning with the first day of the 14 days mentioned in regulation 30(2) to (6), but otherwise in accordance with Part 2, the cancellation period ends at the end of 14 days after the consumer
receives the information.
(3) Otherwise the cancellation period ends at the end of 12 months after the day on which it would have ended.


3. The charge is not based upon a genuine pre-estimate of loss
In this case, the charge far exceeds any loss to the landowner, which was zero. The invoice slapped on the dashboard must reflect the damages suffered and at this permit holders’ car park there was no tariff due. As such, there was no initial loss and no consequential loss can result.
It seems that the ‘fixed charge’ of £95 applies whatever the alleged contravention, looking at Napier’s sign photo. So the apparent ‘loss’ is the same whether a van obstructs three bays, or a car blocks a doorway or stays for 24 hours without any permission from a resident. This suggests to me that no calculation of loss has been made in advance for the various listed contraventions. I contend that Napier have chosen £95 because it is just below the ceiling set as ‘tolerable’ by the BPA. Further, I suspect Napier have set the figure as a percentage of their costs of running their entire business, which includes sites they own as well as pay and display car parks with much higher running costs and technological requirements than this car park.
I expect Napier will send POPLA a summary listing costs which are completely inapplicable to this car park. They do not own it and are not responsible for the upkeep, so I am certainly not liable to pay a percentage of the cost of servicing various P&D machines and maintaining the asphalt surface of other sites Napier own. These costs would all exist even if no driver ever breached any terms anywhere. An Operator cannot apply a percentage of running costs of its entire business model, including the considerable extra costs at sites they own and maintain, to PCNs issued where they are merely an agent with considerably lower costs.
I expect Napier will protest that it is prohibitively expensive to pay an accountant to 'precisely calculate the costs of running the car park'. But this is not necessary - all that is required is that a genuine pre-estimate of loss has been made which would feasibly flow as damages caused by various serious and less serious breaches at this site; the vast majority of which are not appealed. On average, only 2% of cases go to POPLA so it cannot be in the reasonable contemplation of the Operator when issuing tickets, that POPLA will be likely at all. Indeed only 95 appeals v Napier were made to POPLA in the whole of the year covered by the 2014 POPLA Annual Report, so POPLA cases merely scratch the surface of the huge PCN income trousered by Napier every year across the UK. The actual cost of handling this POPLA appeal cannot be included in the calculation - merely a tiny ‘pro rata’ calculation of such costs could be added to each PCN.
I require Napier to provide a detailed breakdown of how the amount of the 'charge' was arrived at and the date/details of any meetings where the issue of potential loss was discussed with the landowner. I contend there was never a pre-estimate of loss discussion at all, as was found in April 2013 in 1IR65128 Brookfield Aviation Int. Ltd. v Van Boekel, where by HHJ Hand QC concluded in his summary:
''I do not believe the evidence...that there was ever an attempt at a genuine pre-estimate of loss. I have found that there was no meeting in 2007...it seems to me that a conclusion that there was never any attempt at a genuine pre-estimate of loss is of some significance. ...finally, the fact that the figure was arrived at by reference to what pilots might be prepared to tolerate...shows to my mind that in so far as the Claimant made any calculation as to amount, that calculation related to the balance between deterring breach and enforcing the notice period on the one hand and deterring recruitment on the other. In short, the sum stipulated for was not a genuine pre-estimate of loss but an “in terrorem” sum to deter breach and as such is a penalty.''
The Lead Adjudicator Henry Greenslade has stated that a pre-estimate cannot be a calculation of actual heads of cost calculated for a case afterwards.

4. There was insufficient signage and the terms were not made fully available to the driver
All terms on a sign in an unexpected 'take it or leave it' type of contract are required to be so prominent and the risk of a charge so transparent that the information in its entirety must have been seen/accepted by the driver before parking. This was not the case.
No signs with full terms seem to exist, so both the driver and myself are in the dark as to what the ‘additional t&cs set out and provided by the landlord’ might be as they are not explicitly stated on the sign. It might just be acceptable to have a sign like that if the only people parking are residents who are all privy to the ‘additional t&cs’ but in the case of a visitor, Napier cannot enforce terms about which a driver has no knowledge. Terms must be clear before the act of parking, otherwise it is too late. The extra t&cs cannot retrospectively form part of the contract.
Even if the driver had asked the resident what those extra terms might be, when collecting the permit - and had got a full explanation or copy of written terms - it would have been too late because a PCN was applied within a mere nine minutes of observation. How are we to know whether those extra t&cs set out a ‘grace period’ of say, 10 minutes to obtain permits from flats? If not, then there should be a grace period in the legitimate interests of consumers, as set out in the UTCCRs. This flat is four floors up from the parking bays and it was 7.30am so the visiting driver could not have had the permit ready in their hands or in the glove box, nor could the driver have known how long was allowed for visitors to collect a permit from a flat and then display it.
I contend that the charge was not 'drawn to his attention in the most explicit way' (Lord Denning, Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163, Court of Appeal): 'The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue...was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it - or something equally startling.'
Clearly terms that cannot be read anywhere at all by a visitor, even by seeking them out on the signage, cannot be found to meet that criteria.

5. The Notice to Driver & Notice to Keeper are defective – no keeper liability established

Please note - at the time of submitting the appeal, I was under the impression that the NTK had ommitted the 'creditor' - but it was on the reverse of side 1 of the NTK (don't make the same mistake I did!

Napier has failed to invoke keeper liability since they have not met the ‘second condition’ in Schedule 4. I have obtained the NTD from the driver now, and was sent a NTK, neither of which are compliant with the POFA 2012. In Paragraph 8 (2)(a) of Schedule 4, it states Notices must ‘specify the...land on which it was parked and the period of parking to which the notice relates’.
Nowhere in the NTK I received does it tell me the actual location of this land beyond two words: ‘The Woodlands’. This is an extremely vague locus. When a keeper receives such a postal NTK, how is that person (if not the driver or occupant of the car that day) supposed to know where the incident occurred without even a town, city, postcode or road mentioned? That is why the POFA 2012 requires such details to be ‘specified’. It is too late now that Napier have finally given me the full address in their rejection letter prior to POPLA.
Nowhere in the NTD or NTK is the 'period of parking' specified. There is an observation time which leads to the issue time of the NTD but this is not necessarily the ‘period of parking’ because Napier are known to record unusual minutes & seconds for their own purposes, to uniquely identify a case if posted about on an internet forum.
Further, Schedule 4 requires that the NTD describes/ specifies the ‘outstanding parking charges’ which had fallen due for payment at a time prior to the Notice. There were no ‘unpaid’ charges/fees which could have been due before the PCN was issued. This is an omission of prescribed information. An ‘unpaid parking charge’ is the only sum that can be pursued and there is none, only a fixed charge for breach arising only at/after the time of issue of the NTD.
Moreover, the NTD and NTK fail to identify the creditor. This may, in law, be Napier Parking Ltd., or their client, or a debt collecting agent, or the landowner or indeed some other party. Schedule 4 of the Act requires a Notice to have words to the effect that ‘The Creditor is’ since the Operator is obliged to ‘identify’ that party. The keeper is entitled to know the identity of the party with whom the driver has allegedly contracted. In failing to specifically identify the ‘creditor’ Napier has failed to establish keeper liability.
The fact that some of this information may be implied or could be inferred by a reader familiar with the legal context of parking does not mean that the Notices are compliant. These documents must have the prescribed, mandatory wording; where an Act states that a Notice ‘must’ include certain words, then any omission or ambiguity renders it invalid. As such, the charge is not enforceable against a registered keeper. In a previous ruling, POPLA Assessor Matthew Shaw stated that the validity of a NTK is 'fundamental to establishing liability' for a parking charge, stating: 'where a Notice is to be relied upon to establish liability it must, as with any statutory provision, comply with the Act.'
I also noted the recent conclusions of the Assessor in POPLA case reference 292206400:
“…the appellant did not admit to being the driver and submitted that the notice to keeper was inadequate as it did not properly indicate the creditor. The notice to keeper issued by the operator appears not to comply...as it does not identify the creditor. The identification of the operator as the organisation to which cheques should be made payable and to whom complaints may be made does not constitute an identification of the creditor, as an organisation that is not the creditor could perform all the specified roles. As the notice to keeper is not valid, I cannot find that the charge notice is enforceable against the appellant.”

6. The car park is not owned by Napier, so they have no locus standi
It seems Napier are agents acting 'on behalf of' the ‘landlord’ according to their sign. Now that I know the location of this car park from the rejection letter (the locus not being described on the NTK) I have made enquiries and believe it is owned by Adriatic Land 2 Ltd. As such, Napier will need to show POPLA a copy of the contract with the landowner which authorises Napier to pursue charges in the courts in their own name. A witness statement will not be sufficient as it would most likely be signed by a managing agent (not proving actual landowner authority) and would not set out the contraventions and charges and terms under which Napier are contracted.
My original appeal asked for proof of Napier’s standing but none was forthcoming so I have seen no evidence of authorisation from the landowner to charge £95 for all contraventions and for Napier themselves to pursue these charges in the courts. If Napier cannot show a contract with the landowner which existed prior to this parking event then I contend they have no locus standi.

Napier have tried to warn me off by enclosing reams of documents about the completely irrelevant case of Napier Parking v Lander. In that case, it seems that Mr Lander ignored the PCN and then at court stage issued a counter claim which failed and his conduct was considered by a Judge to be unreasonable. That case is completely different from my appeal as keeper.
If Napier try to rely upon Napier Parking v Yau then I would state that this was also unlike my case. It was a different scenario in another car park with a completely different defence. Mr Yau had parked near a sign which he had admitted seeing and he paid a tariff, so the elements of a contract did exist in that case but he failed to display his P&D ticket straight away. Although Napier have won in court before, it does not follow that they have standing to pursue me.

And in any case, I have exercised my perceived right to cancel the contract whatever the outcome of this POPLA appeal but would be pleased to hear from POPLA that my appeal is upheld first.

hoohoo

Thanks for this - very interesting.

No doubt Napier will go back to their barrister for another £2k worth of advice after this result. Perhaps if they ask him to charge £10k instead they could apportion this across future tickets to raise their average GPEOL...but of course for this to be valid they would have to do it before they set the charges

Lloyd12

Agreed - and they'll probably send out to POPLA and the next unfortunate a copy of the invoice for the new, expensive advice, but Napier won't redact the case/appellant names included on the invoice, and so they'll break the Data Protection Act.

Then someone else could complain to BPA.

Then BPA could do nothing.

That's Parking Life....round...and round...and round...