POPLA appeal rejected - advice about what to do next?

RHead

Mike172 wrote: »

Would have been believable if you had posted the name of the assessor.

Poor effort.

That was posted on the POPLA appeal thread where you report outcomes

Here the whole thing

-vCP
Plus Limited (Operator)
The Operator issued parking charge notice number xxx
arising out of the presence at Roadchef Northampton North, on xx
October 2014, of a vehicle with registration mark xxx
The Appellant appealed against liability for the parking charge.
The Assessor considered the evidence of both parties and determined
that the appeal be refused.
The Assessor’s reasons are as set out.
In order to avoid any further action by the operator, payment of the
£90 parking charge should be made within 14 days.
Details of how to pay will appear on previous correspondence from the
operator.xxxx 20 January 2015
Reasons for the Assessor’s Determination
It is the Operator’s case that their Terms and Conditions of parking (“the
Terms”) are clearly displayed throughout the above named site. They submit
that the Appellant breached the Terms by parking for in excess of the free
parking period without making a payment to park and therefore is liable to
pay the parking charge.
The Appellant raises several grounds of appeal. He submits that:
a) The parking charge is punitive and does not reflect a genuine preestimate
of loss;
b) The Operator has no authority from the Landowner to issue parking
charge on the land;
c) The ‘keeper liability’ provisions in the Protection of Freedoms Act 2012
have not been complied with;
d) The signage at the site is inadequate; and
e) The ANPR records are unreliable.
I will deal with each of these submissions in turn.
Where the Appellant submits that the parking charge does not reflect a
genuine pre-estimate of loss, there is a burden on the Operator, and not the
Appellant, to provide a genuine pre-estimate of loss which details how they
calculated the parking charge amount. It does not need to be particularly
detailed or amount to exactly the charge amount because it is simply an
estimate. I find that the Operator has provided sufficient evidence to establish
that the charge is based upon a genuine pre-estimate of loss.
An Operator must have authority from the Landowner in order to be entitled
to issue parking charge at any particular site. This can be proven by providing
a copy of an agreement made between the Operator and the Landowner
which grants such authority, or by providing a signed statement made by the
Landowner or by a person authorised to make such a statement on their
behalf. The Operator has provided a signed witness statement from a person
authorised to make a statement on behalf of the Landowner which confirms
that the Operator has authority to issue parking charges on the land.
I find that the requirements of the Protection of Freedoms Act 2012 have
been properly complied with in this case.
I find that the signage at the site was adequate and clearly stated the Terms
of parking. This is on the basis of photographic evidence provided by the
Operator. xxx January 2015
On the balance of probabilities, I find that the ANPR cameras at the site were
functioning correctly on the day of the alleged contravention. The Appellant
has submitted that there may have been two visits which were recorded as
one by the ANPR camera. However, the Appellant, as registered keeper, can
provide no evidence one way or the other as to whether the driver entered
and exited the site more than once. On all of the evidence before me, I find
that it is more likely than not the driver entered and exited the site only once.
Consequently, I find that the Appellant is liable to pay the parking charge as
the registered keeper of the vehicle.
Accordingly, I refuse the appeal.
Ricky Powell
Assessor

ManxRed

The_Deep wrote: »

Manx, it looks like a wind up.

I can see nothing that indicates it's a wind up yet, so I'll carry on for now.

Marktheshark

The_Deep wrote: »

Manx, it looks like a wind up.

Yeah and dummy here fell for it ! :mad:

RHead

ManxRed wrote: »

Why do you believe the paperwork/process was insufficient to hold the registered keeper liable? Genuine question, just want to know how strong your case might be.

I've read either on here or somewhere else that any CCJ has to be made out in the name of the person who was driving and all the keeper has to do is deny they were driving

Just wondering if that was sound advice or if I'm just going to end up with a CCJ if I continue to refuse to pay?

EDIT: this would be a pretty crap wind up if it was one

Mike172

Then show us your POPLA appeal. Not the outcome.

The_Deep

I can see nothing that indicates it's a wind up yet, so I'll carry on for now.

I am still not convinced, For a start, the "short summary" makes no mention that it is a MSA. There must be very few instances of "double Dipping" in an MSA, so, assuming that the double dipping did not take place, Mr Head bilked on £10+.

If the assessor formed the opinion that Mr Head was lying on this, he is likely to find for the MSA on the other points.

However, if I am wrong, and Mr Head made two stops at the MSA, then surely it must be easy enough for him to offer some evidence to that effect.

RHead

Mike172 wrote: »

Then show us your POPLA appeal. Not the outcome.

As the registered keeper, I appeal on the following grounds: 1. The charge is not a genuine pre-estimate of loss. 2. No standing/authority to form contracts with motorists 3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA). 4. Unclear and non-compliant signage created no contract with the driver. 5. The ANPR records are unreliable, non-compliant and not proof of one parking event. ************************************************** ************************ 1. The charge is not a genuine pre-estimate of loss. £50 plus ‘late payment fee’ is a sum 'plucked out of the air' by the Operator and it bears no relation to any loss. My proposition is that £90 was chosen because it happens to be the maximum figure the BPA feel is a 'tolerable' amount to impose on motorists, when compared to PCNs issued by Councils on street. There is no valid comparison with a private firm alleging 'breach' in order to maximise their own profits and a real PCN from a Council - but the BPA admitted to the Government that Council PCN amounts were the basis of that figure. I require CP Plus to explain their new calculations behind this charge. My position is that, any 'new' version cannot be accepted as a genuine PRE-estimate. In fact it is a 'post-estimate' of (arguable) 'actual costs' after the event; figures totted up to match the charge, including fully-counted man-hours for 'POPLA appeal work' when in fact less than 2% of PCNs proceed to POPLA. As this is supposed to be a pre-estimate relating to the typical loss caused by an average breach (whether the PCN is appealed or not), any man-hours must be counted only on a minimal pro-rata basis, i.e. they 'might' reasonably count only 2% of the time taken on a POPLA appeal, since the over 98% of cases involve no POPLA work whatsoever. In the 2014 POPLA Annual Report the Lead Adjudicator, Mr Greenslade, stated, “However, genuine pre-estimate of loss means just that. It is 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." If CP Plus present what they describe as a GPEOL statement I require them to show documentary evidence regarding exactly when this 'pre-estimate of loss' was discussed with the landowner in advance, and/or at any substantive meeting. How/when were these calculations made and on what basis? I put CP Plus to strict proof that they ever had such a meeting. If there was no meeting to discuss the £100 charge in advance then 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 at 94: ''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 betweendeterring 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.'' A direct comparison can be drawn with Brookfield v Van Boekel that, so far as CP Plus made any calculation as to amount, that calculation related to the balance between deterring breach and enforcement on the one hand and deterring customers, on the other. £100 is the maximum set by the BPA, a sum which motorists might 'tolerate' and the £90 being charged is only just under that I therefore contend that the figure of £90 is a penalty clause in terrorem to deter breach, neither can it be commercially justified. POPLA Assessor Chris Adamson stated in June 2014 that: ''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, 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. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”. This supports the principle that the aim of damages is to be compensatory, beginning with the idea that the aim is to put the parties in the position they would have been in had the contract been performed. 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.'' 2. No standing/authority to form contracts with motorists This Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. I contend that they merely hold a bare licence to supply and maintain (non compliant) signs and to post out 'tickets' as a deterrent. Authority to merely 'issue tickets' is not the same authority as a right to form contracts in their own right, with visiting drivers. As a commercial site agent acting under an agency agreement 'on behalf of' the a principal, CP Plus has negative responsibility and no automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA CoP. I put CP Plus to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that CP Plus 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. How will I know that the landholder contract allows CP Plus to charge £90 for this particular contravention if the contract is not produced? Showing a piece of paper signed by someone who has never seen the actual contract, saying merely that CP Plus can put up signs and 'issue parking charges' would not prove that they can form contracts with drivers nor show that they can charge this amount for this contravention. 3. Failure to invoke Keeper Liability under the Protection of Freedoms Act 2012 (the POFA). In order to pursue Keeper Liability under the POFA, CP Plus must have met the strict conditions in the Act. However, they have failed to fulfil the requirements of the “Notice to Keeper” (‘NtK’) as per para. 9 Sch 4 of the Act which reads in part: “(1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met. (2) The notice must— (b) 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; (e) state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper— (i) to pay the unpaid parking charges; or (ii) if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver; (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given— (i) the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (ii) the creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid; (h) identify the creditor and specify how and to whom payment or notification to the creditor may be made; (4) The notice must be given by: (b) sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period. (5) The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended. (6) A notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales.” The NTK fails due to the following reasons: The following points (A)-(E) may be observed as flaws in this NTK, making this non-compliant under the POFA 2012: (A) The 'period of parking' is not 'specified', only the times the car was seen in traffic on arrival and on the final time it left that day. There's no evidence of parking at all. (B) It 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; (C) It fails to describe any alleged unpaid parking charges “for the specified period of parking” (a period which was not specified). POFA requires that a NTK describes any 'outstanding' 'unpaid' charges which the driver owed as at a time not later than the DAY BEFORE the issue of the postal NTK. The sum for breach of contract cannot be described as ‘unpaid by the driver’ prior to the day the NTK was issued, because it only arises and could be described as 'unpaid', if at all, at/after the time of receipt of the NTK by the keeper. The inflated PCN amount now being pursued for 'breach' should not be confused with the sum intended by Schedule 4 of the POFA, just because it is also - coincidentally, perhaps - called a ‘parking charge’. The timelines are clearly stated in the Act and it is clear that the Act requires any unpaid tariff that the driver owed before the NTK was issued, to be stated - and that this is the only sum that can be pursued from a registered keeper. (D) It does not identify the creditor, who could be the landowner, a retailer, a managing agent, or the Operator, or another party. The fact that an Operator's name is on a NTK as the payee, does not 'identify' them as the creditor because administrative functions such as sending notices and collecting monies can be carried out by other parties, such as agents and debt collectors who are never 'the creditor'. This Operator could simply be an administrator, a debt collector only - the creditor could be any other party if not specified here. Such basic detail cannot be assumed. The creditor has to be 'identified' with words to the effect that 'the creditor is...'. (E) The NTK fails to show the arrangements for complaints and the geographical address of the client/landowner, since this Operator is an agent . This is a requirement for all consumer contracts since June 2014, in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regs 2013 and also a breach of the POFA not to include full details of such arrangements for complaints. The fact that some of this information may be able to be implied by a reader familiar with the legal context of parking does not mean that the NTK is compliant. A NTK is a fundamental document in establishing keeper liability. The requirements of Schedule 4 of POFA2012 as regards the wording in a compliant NTK are prescriptive, unequivocal and a matter of statute, not contract law. Any omission or failure to set out even some of the mandatory NTK wording means there is no 'keeper liability'. In this case the driver has not been identified so the charge has no legal basis to be enforced against me. 4. Unclear and Non-compliant signage which created no contract with the driver, who did not see any signs. Operators of Motorway Services Areas (MSAs) and their agents must comply with Government Policy. The Highways Agency, on behalf of the Department for Transport (DfT), published a policy on the provision of roadside facilities on its network, the 'DfT Circular 01/2008: Policy on Service Areas andother Roadside Facilities on Motorways and All-purpose Trunk Roads in England'. The policy states at B19: 'At all types of site, where a charge is to be levied for parking beyond the mandatory two free hours, the charging regime must be clearly displayed within both the parking areas and the amenity building.' Compliance of the MSA with the above policy is disputed and I therefore require CP Plus to prove that such clearly displayed signage exists within the amenity building(s) at the car park in question. It is not enough to prove that such signage exists merely within the car park itself and that point is covered separately in my appeal. I would also add that it was dark and if such signage existed it was not illuminated and hence could not be seen Furthermore the policy states: 'All signing of roadside facilities and signing arrangements within sites must comply with the current Traffic Signs Regulations and General Directions {TSRGD} and any other guidance as may be issued from time to time by the Department for Transport or the Highways Agency. Approval must be sought from the Highways Agency’s signs specialist for the use of all non-prescribed signs.' I put CP Plus to strict proofthat the DFT/Highways Agency has granted special authorisation for their traffic signs (any signs relating to traffic) in this particular MSA to be exempt from this policy requirement. It will not be acceptable for CP Plus to claim that these particular signs are in their own opinion not 'traffic signs' when these signs provide information to vehicle users in moving traffic, who may never leave their vehicles. Failure to comply with Government policy would render the alleged contract unenforceable. In any case, unless signs are seen and understood before parking, they are not imported into any contract. In a free car park, where the Operator does not own the land (the named principal being the only party capable of offering the spaces and other amenities in the facility), there is no possibility of a contract, since no consideration can flow between a driver and a site agent. No money/offer/promise/permit or any other tangible nor implied nor executory consideration was capable of being exchanged with CP Plus in this case. I have recently driven this same route to check signage and the only clear invitation is on the MSA's own approach signage which offers 'free parking' and other roadside amenities. I had to search to find CP Plus signs and was unable to make out the terms as the signs are at the top of poles. The driver, having parked the vehicle or driven through to get petrol (or having done both) would have relied upon the free parking offer from the MSA and no doubt saw no signs by CP Plus at that time. Their signage is not lit or reflective and is not so prominent that it 'must' have been seen among the myriad clutter of signs and information in a busy MSA. Terms are only imported into a contract if they are clear and so prominent that the party 'must' have known of it and agreed. The opposite is true in an MSA where the landholder's approach signs, brightly lit and with symbols, are very clear that free parking is offered to enable tired motorists to take a break - without strings or stated restriction. It was the MSA's own roadside approach sign advertising the services which formed the only possible offer and contract with the driver. No reasonable person would have accepted such onerous parking terms and I contend the extortionate 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). Lord Denning continued: '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.' 5. ANPR records are unreliable and not proof of one parking event. The charge is founded entirely on two photos of my vehicle entering/leaving the car park at specific times. I put CP Plus to strict proof that their ANPR system is not fundamentally flawed because of known issues such as missing checks and maintenance of the timer/cameras and the possibility of two visits being recorded as one. The Operator's proof must show checks relating to my case/my vehicle, not vague statements about any maintenance checks carried out at other times. The 'two visits recorded as one' problem is very common and is even mentioned on the BPA website as a known issue: (link taken out as new users not allowed to post links) britishparking.co.uk/How-does-ANPR-work The BPA says: ''As with all new technology, there are issues associated with its use: Repeat users of a car park inside a 24 hour period sometimes find that their first entry is paired with their last exit, resulting in an ‘overstay’. Operators are becoming aware of this and should now be checking all ANPR transactions to ensure that this does not occur.'' Since I am merely the registered keeper, I have no evidence to discount the above possibilities. CP Plus show no parking photographs so they cannot say for certain that the car was not involved in non-parking related activity - e.g. queuing or filling up with petrol or water, nor can they show the car did not leave the site and return. This could easily be a case of two visits, or if my vehicle was on site for the time shown, I suggest that it may well not have been 'parked' for more than 2 hours. There is a petrol station on site, as well as air and water, so I put CP Plus to strict proof of actual parking for over two hours with no other petrol station-related activity. Even if the car first drove past the cameras and though the car park the driver may have decided to get petrol whilst the passengers were in the MSA facility and so 'parking' for over two hours would not have occurred. The Government rules require a fulltwo hours free parking to allow a driver to rest. So I require CP Plus to rebut these assertions. I agree with the BPA that this ANPR technology has issues associated with its use. These also include (but are not limited to) synchronisation errors, buffering, faults with the timer, faults with one or other of the cameras, faults with the wireless signals and differences between the settings of the in/out clocks. The operator uses WIFI with an inherent delay through buffering, so "live" is not really "live". Hence without a synchronised time stamp there is no evidence that the image is ever accurate to the minute. In addition, the BPA CoP contains the following in paragraph 21: ''You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.'' CP Plus fail to operate the system in a 'reasonable, consistent and transparent manner'. They place signs far too high to see on arrival and these are not lit, so there is no opportunity for drivers in moving traffic at the entrance to be 'informed that this technology is in use and what the Operator will use the data captured by ANPR cameras for'. I contend that as well as being unreliable, this is a non-compliant ANPR system being merely a secret high-up spy camera - far from 'transparent' - unreasonably 'farming' the data from moving vehicles at the entrance & exit and neither 'managing, enforcing nor controlling parking' since the cameras are not concerned with any aspect of the actual parking spaces, nor any parking event at all.

Fruitcake

I can't read that in its current form.

Please edit it with paragraphs and spacing. It looks like the version of the bible before punctuation was invented.

Redx

hope the assessor didnt have to try to read that, otherwise its no wonder they rejected the appeal !

I definitely would not read it

RHead

The_Deep wrote: »

I can see nothing that indicates it's a wind up yet, so I'll carry on for now.

I am still not convinced, For a start, the "short summary" makes no mention that it is a MSA. There must be very few instances of "double Dipping" in an MSA, so, assuming that the double dipping did not take place, Mr Head bilked on £10+.

If the assessor formed the opinion that Mr Head was lying on this, he is likely to find for the MSA on the other points.

However, if I am wrong, and Mr Head made two stops at the MSA, then surely it must be easy enough for him to offer some evidence to that effect.

The actual event was that I was meeting a friend at the services - they live in the South, I live in the North so we'd arranged to meet up as I drove up the M1. The traffic was horrendous and so they were held up meaning that I had to wait for over an hour before they got there - we'd had a chat, something to eat etc and then set off again - I'd have been there for a about 3- 3.5 hrs

Fact was I had no idea of the two hour limit and would never have stayed longer if I had known

The grounds for appeal were taken from the template published on here

I have also written to Roachchef asking for a list of their service stations as I wish to avoid using them again because of their parking charges - no reply as yet but if enough of us write to them they'll understand that they're losing customers because of this