G24 - pcn

Coupon-mad

I agree - but the IAS won't. The OP needs more.

brutal_deluxe

OK thanks again for input. So here's an attempt at a more comprehensive appeal, based on some of the other IAS and G24 winning appeals. Please note I have added a little bit myself regarding the old BPA signs and that G24 are trying to reference their IPC membership. Comments please. Also I have referenced a previous court decision involving a POPLA assessor - is this wise considering this is IAS? Please see below appeal..

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I wish to point out that I am the Appellant and not the Claimant/Defendant/Driver, and therefore the onus is entirely on G24 to prove their case for each of the following points.

1/ No contract
G24 has attempted to avoid the necessity of having to justify a pre-estimate of loss by stating that this is a matter of contractual agreement. However, the rejection letter to my appeal, G24 states respectively that the charge is for ‘breaching’ the terms and conditions of parking (Email text: “…evidence of the breach of contractual term is provided on your Contractual Parking Charge Notice”)

Additionally, the only sign (See attached evidence) mentioning any restrictions/charge is an old BPA signs where G24 used to charge for 'breach of terms’ and they have not updated their signs at all. As such, they have not created a contractual fee situation in the car park so the driver has not entered into any contract to pay a 'contractual fee' to be allowed to park as an 'unauthorised' driver.

That the sign states that the conditions are regulated by BPA CoP means that G24’s attempt to reference their new IPC regulations are null and void, as this could not have been considered at the time of the alleged event.

2/ The amount is neither a genuine tariff/fee for parking, nor is it based upon any genuine pre-estimate of loss
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. G24 notices allege 'breach of terms' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. Given that G24 charge the same lump sum for a 15 minute overstay as they would for 150 minutes, and the same fixed charge applies to any alleged contravention, it is clear there has been no regard paid to establishing that this charge is a genuine pre-estimate of loss.

G24 cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

Nor is the charge 'commercially justified'. If G24 cites 'ParkingEye v Beavis & Wardley' it's irrelevant. Mr Beavis is taking that flawed small claim decision to the Court of Appeal, just as HHJ Moloney fully expected at the time he made his decision, which was full of caveats and full of holes and a distinct lack of case law. In addition, POPLA Assessor Chris Adamson has stated in June 2014: ''In each case that I have seen from the higher courts...it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach...It also seems that courts have been unwilling to allow clauses designed to deter breach as this undermines the binding nature of the initial promise made.

Whilst the courts have reasonably moved away from a strict interpretation of what constitutes a genuine pre-estimate of loss, recognising that in complex commercial situations an accurate pre-estimate will not always be possible, nevertheless it remains that a charge for damages must be compensatory in nature rather than punitive.''

3/ No authority to issue charges - no contract with landowner
G24 has failed to provide the contract between themselves and the Landowner, containing relevant information which includes the necessary contractual written authority for the issue and enforcement of the Parking Charge Notice.

The Appellant puts G24 to strict proof to provide an unredacted, contemporaneous copy of the contract with the Landowner, which - to demonstrate standing and authority - must specifically state that G24 can make contracts with drivers themselves and that they have full authority to pursue charges in court in their own name. A witness statement to the effect that a contract is in place will not be sufficient because it will not show which restrictions are to be enforced, what the times/dates/details of enforcement are.

4/ ANPR not accurate and fundamentally flawed
This Operator is obliged to ensure their ANPR equipment is maintained as described in paragraph 21.3 of the British Parking Association's Approved Operator Scheme Code of Practice. I say that G24 have failed to clearly inform drivers about the cameras and what the data will be used for and how it will be used and stored. I have also seen no evidence that they have complied with the other requirements in that section of the code.

In addition I question the entire reliability of the system. I require that G24 present records as to the dates and times of when the cameras at this car park were checked, adjusted, calibrated, synchronised with the timer which stamps the photos and generally maintained to ensure the accuracy of the dates and times of any ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to IAS how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss recently in ParkingEye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from ParkingEye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

So, in addition to showing their maintenance records, I require G24 to show evidence to rebut the following assertion. I suggest that in the case of my vehicle being in this car park, a local camera took the image but a remote server added the time stamp. As the two are disconnected by the internet and do not have a common "time synchronisation system", there is no proof that the time stamp added is actually the exact time of the image. The operator appears to use WIFI which introduces a delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever time stamped with an accurate time. Therefore I contend that this ANPR "evidence" from the cameras in this car park is just as unreliable and unsynchronised as the evidence in the Fox-Jones case. As their whole charge rests upon two timed photos, I put G24 to strict proof to the contrary.

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brutal_deluxe

Heeelp - only a couple of days left to appeal

brutal_deluxe

Bump to the top**

brutal_deluxe

Bump to the top**

bazster

First sentence is both wrong and not strong enough. You ARE the defendant!

"I wish to stress that I am the Appellant/Defendant and not the claimant. I am therefore required to prove nothing, the burden lies entirely with the claimant to prove all aspects of its claim, including that it has the locus standi to make such a claim."

Paragraph 1: don't guess at why the paperwork and signage says what it says, simply state the issues. Signage first, that's the most important.

"G24 has attempted to avoid the necessity of having to justify a pre-estimate of loss by stating that this is a matter of contractual agreement, however the only sign (See attached evidence) mentioning any restrictions/charges clearly states 'breach of terms’. Furthermore, in both the Notice to Keeper and the rejection letter to my appeal (see attached evidence), G24 states categorically that the charge is for ‘breaching’ the terms and conditions of parking. Accordingly it incumbent upon G24 to demonstrate the alleged charge is indeed a genuine pre-estimate of loss, which it clearly isn't."

Rest of it is OK. Get it off and stop stressing, G24 really is one of the most toothless PPC's going so even if the IAS assessor (AKA Skippy the Bush Kangaroo) twists it against you there's nothing to worry about.

brutal_deluxe

Brilliant, thanks for checking. Does the rest look OK? How about ANPR? I'm yet to hear of any IAS results where ANPR has been challenged.

If the rest looks OK I'll submit this tonight as deadline is tomorrow.

Cheers!

BD

bazster

Look, we're all a bit in the dark here, but it looks OK to me. No guarantees but, given the wording on the sign, no GPEOL is probably your best bet. Just get it on its way and go down the pub or something!

Coupon-mad

You haven't said there is no keeper liability under the POFA due to the failure of G24 to include the wording under statute, as set out in paragraph 9 of Schedule 4 of the POFA.

I would be adding a copy of both sides of the NTK as evidence that the POFA 2012 paragraph 9 has not been complied with (quote it and point out where they haven't complied). And include another attachment of a witness statement from someone who can corroborate the fact you were not driving the car that day.

IAS appeals need evidence attached before you hit the 'submit' button so hold off a bit longer tonight, add more. I assume you know you have to attach the picture of the sign as well, as more evidence, and to copy & paste the rejection email, highlighting the wording about breach.

brutal_deluxe

Thanks ladies and gents, much appreciated.

I have found examples of POFA 2012 paragraph 8 (schedule 4) but not 9?

This was the example:

There are omissions of the statutory wording required under paragraph 8 of POFA 2012, Schedule 4. The Notice to Keeper (NTK) does not inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full as required para. 8(2)(b). The NTK does not invite the keeper to pass the Notice on to the driver, as required in para. 8(2)(e). Moreover, the NTK does not state that the keeper would become liable for the charge only if the applicable conditions under this Schedule are met which is not in accordance with para. 8(2)(f). Furthermore, paragraph 8(2)(h) states that the NTK must identify the creditor and specify how and whom the payment or notification to the creditor may be made. The NTK in this matter does not identify the creditor and does not comply with this requirement. In addition, the NTK failed to inform the keeper of the arrangements and contact details for resolution of disputes or complaints to the Information Commissioner (see evidence enclosed). The NTK from PCM LTD indicates that they are a member of the IPC and abide by the committees’ code of conduct. The failings identified above of the NTK also breach the IPC code of conduct. Where an Act states that such a Notice ‘must’ include certain prescribed words, any omission renders a document a nullity.

In addition the NTK did not include any photographic evidence that the vehicle was parked there at all. I require photographic evidence and put the operator to strict proof on this point. Therefore PCM LTD are unable to establish keeper liability of the vehicle for the alleged parking charge and consequently any action against the keeper of the vehicle should be withdrawn.

Is this what you meant?