G24 - pcn

Umkomaas

Try this.

http://www.legislation.gov.uk/ukpga/2012/9/schedule/4/enacted

Coupon-mad

You just need to quote paragraph 9 and write beside each point whether or not the NTK is compliant (to the letter - be pedantic, does it state EVERYTHING?!).

brutal_deluxe

Coupon-mad wrote: »

You just need to quote paragraph 9 and write beside each point whether or not the NTK is compliant (to the letter - be pedantic, does it state EVERYTHING?!).

Ok Ive had a look at the POFA 2012 section 9 and really couldn't find much to pick on apart from something about not relating to a parking period (see below).

This is what I am going to send. Comments please!!

_________
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 it's claim, including that it has the locus standi to make such a claim.

1/ The charge is not a contractual fee - it is a disguised breach
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’.

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.

Furthermore, that the sign states that the conditions are regulated by BPA CoP (see evidence) meaning that G24’s attempt to reference their new IPC regulations later on are null and void, as this could not have been considered at the time of the alleged event, misleading the driver and thus a contractual agreement could not have been formed from this point alone.

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.

5/ Failure to Comply with Statutory Requirements under Paragraph 9 of POFA 2012, Schedule 4
There are omissions of the statutory wording required under paragraph 9 of POFA 2012, Schedule 4. In their NTK, G24 fails to inform that the driver is required to pay the charge “in respect of the specified period of parking”. After the notice states that “the driver is hereby required to pay a parking charge..” this is not followed up with reference to the parking period, as prescribed by the Act.

The NTK from G24 indicates that they are a member of the IPC and abide by the committees’ CoP. The failings identified above of the NTK also breach the IPC CoP page 14, Part C para. 2. Where an Act states that such a Notice ‘must’ include certain prescribed words, any omission renders a document a nullity.

Due to being non-compliant with the IPC CoP and Schedule 4 of the POFA 2012, G24 are not able to establish keeper liability of the vehicle for the alleged parking charge. Therefore, any action against the keep should be withdrawn.

6/ Inadequate and Lack of IPC Compliant Signage
The signage was not seen, formed no contract with the driver and does not meet the IPC guidelines. Terms are only imported into a contract if they are clear and so prominent that the party ‘must’ have known about it and agreed. Upon entering the location where the contravention took place, the road had no signs visible from many of the parking bays so no driver can have been expected to have entered into any contract.

On page 26 of IPC CoP it clearly states that “The signs must be readable from far enough away so that drivers can read all the of the Group A and Group B text without needing to look more than 10 degrees away from the road ahead” and on page 27 “The signs must be at a suitable height – is suggest that no part of the sign which contains relevant text should be over 6’, or under 12”, from the ground level. The sign (see evidence) photographed contains text which is clearly over 6’ from the ground, and fails to meet IPC guidelines.

Furthermore, I contend that the signs and any core parking terms G24 are relying upon being too small for any driver to see, read and understand whilst driving or stationary, as the text containing the information is not easily legible as it is WRITTEN ALL IN CAPITAL LETTERS, which for anyone dyslexic can cause major problems. The British Dyslexia association and Gov.uk state that “Use a plain, evenly space sans seif font such as Arial and Comic Sans. Alternatives include Verdana, Tahoma, Century Gothic, Trebuchet. AVOID TEXT IN BLOCK CAPITALS: this is much harder to read”.

If G24 insist on belonging to IPC, I would like to point out that all of the points mentioned clearly justify how they have failed to fulfil the IPC CoP requirements with regard to signage.
___________

brutal_deluxe

I'm 700 words over - any thoughts on what I could cut out?

brutal_deluxe

Had to cut it down..

---

I am the Appellant/Defendant. Therefore, the burden of proof lies entirely with the claimant.

1/ The charge is not contractual - it is a disguised breach
G24 has avoided justifying a pre-estimate of loss by stating that this is a contractual agreement, however the only sign mentioning any restrictions/charges clearly states 'breach of terms’. The NTK and rejection letter also states ‘breaching’ of terms. Accordingly it is incumbent upon G24 to demonstrate the alleged charge is a genuine pre-estimate of loss, which it clearly isn't.

Furthermore, that the sign states that the conditions are regulated by BPA CoP meaning that any reference to IPC regulations are null and void, as this could not have been considered at the time of the alleged event, and thus a contractual agreement could not have been formed.

2/ Amount not based upon any genuine pre-estimate of loss
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.

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. Costs of running a business etc. cannot possibly flow as a direct consequence of this parking event. G24 would have been in the same position had the parking charge notice not been issued, and would have had many of the same 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 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 contract with landowner
G24 has failed to provide the contract between themselves and the Landowner. I put 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 inaccurate and fundamentally flawed
The entirety of the charge is founded on two images of my vehicle. The onus is on G24 to prove how their system is any different 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.

5/ Failure to Comply with Paragraph 9 of POFA 2012, Schedule 4
There are omissions of the statutory wording required under paragraph 9 of POFA 2012, Schedule 4. In their NTK, G24 fails to inform that the driver is required to pay the charge “in respect of the specified period of parking”. After the notice states that “the driver is hereby required to pay a parking charge..” this is not followed up with reference to the parking period.

The NTK indicates that G24 are a member of the IPC and abide by the committees’ CoP. The failings identified above of the NTK also breach the IPC CoP page 14, Part C para. 2. Where an Act states that such a Notice ‘must’ include certain prescribed words, any omission renders a document a nullity.

6/ Lack of IPC Compliant Signage
Terms are only imported into a contract if they are clear and so prominent that the party ‘must’ have known about it and agreed. Upon entering the car park, the road had no signs visible from many of the parking bays so no driver can have been expected to have entered into any contract.

On page 26 of IPC CoP it clearly states that “The signs must be at a suitable height – it suggests that no part of the sign which contains relevant text should be over 6’, or under 12”, from the ground level. The sign photographed contains text which is clearly over 6’ from the ground, and fails to meet IPC guidelines.

It is also unclear from the signage what kind of cameras are used, what information is captured and what it will be used for. This also fails to meet (part B, para 3 (3.2)).

---

brutal_deluxe

OK Ive sent it. I had to as deadline was today! Can't believe the 1000 word limit. Will let everyone know how it goes but not really that confident.

Cheers anyways!

BD

Coupon-mad

Make sure the NTK, both sides, is also attached as evidence and can you prove the keeper was not the driver? If you can, get a signed witness statement as corroboration of where the keeper was that afternoon (an address and a time and date) and confirming that they were not driving that vehicle at the time in question. Otherwise your point that the NTK is flawed will be ignored, as IAS say 'we think you were driving anyway'. Unfair - yep. Will they get complaints to the DVLA - yep, believe you/me, that will happen.

If I was cutting anything out I would reduce the blurb about GPEOL because this is really a 'POPLA appeal load of words' and doesn't add much:

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.

''

(and remove those speech marks at the end of the last sentence in that paragraph - a sentence I think is best left in)!

brutal_deluxe

Sadly couldn't get a witness statement. Just glad to send it off as worrying about it was starting to consume my life. Like I said, not particularly confident, especially as I have now thinned out all the other points. Yes both sides of NTK sent, pic of signage, rejection letter etc.

Oh well let's see!

Any tips if this comes back as rejected? Just ignore any further threats from G24?

Thanks,

BD

Hot_Bring

brutal_deluxe wrote: »

Sadly couldn't get a witness statement. Just glad to send it off as worrying about it was starting to consume my life. Like I said, not particularly confident, especially as I have now thinned out all the other points. Yes both sides of NTK sent, pic of signage, rejection letter etc.

Oh well let's see!

Any tips if this comes back as rejected? Just ignore any further threats from G24?

Thanks,

BD

You've put a lot of effort into this which is to be commended but you need to leave the worry out of it. Personally, I'd stopped doing anything about it yonks ago as this is G24. But then I'm a belligerent, argumentative middle aged git

Whatever the result, I'd suggest IGNORE will be the way to go. You've done what you can .... now just get on with life.

Coupon-mad

Any tips if this comes back as rejected? Just ignore any further threats from G24?

Yes that sums it up - ignore G24 and ignore debt collector letters - but if Gladstones or G24 themselves send a 'Letter before County Court Claim', respond formally to that as per the LBCCC Fightback sticky thread.

I think you may be in with a chance as the IAS don't like PPCs to use the 'breach/GPEOL' business model and behind the scenes you never know if the IPC has told new AOS members that they won't uphold charges where an appellant mentions GPEOL (who knows, but we certainly saw PCM lose every case at IAS at first, when they had old BPA signs up).