PCN - appeal to IAS

nicechap

dr_jones wrote: »

I must confess part of me secretly thought that IAS can't be *that* bad but here's the proof...

I especially find the notion that the onus is on me to prove the charge is not GPEOL utterly ridiculous.

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Appeal Outcome: Dismissed

The Adjudicators comments are as follows:
"The Appellant challenges the parking charge on the basis there were an insufficient number of signs to provide sufficient notice that the driver is entering a contract. In addition the signs breach the code of practice. The Appellant also claims the parking charge should not be allowed as the charge does not represent a genuine pre-estimate of loss and the Operator has no authority.

A breach of the code of practice does not mean the charge is automatically unenforceable. The code is best practice. For the charge to be enforceable the Operator does not have to comply with best practice, they have to provide sufficient notice. For example if the typeface did not comply but the signs were clearly visible and the content legible they would provide sufficient notice.

The lack of a sign at the entrance is not fatal to the charge in my view. The driver is still driving at that point and has little opportunity to consider any such sign in any event. I am more concerned that once the driver exits the vehicle and looks around, as all drivers should, that signs are visible, which moves us onto the Appellant’s next point.

The Appellant provides a number of photographs showing a lack of signs in the car park. By contrast the Operator provides photographs showing a large number of signs around the car park. The photographs do not appear to be inconsistent. Consequently, as the onus in this appeal in on the Appellant to prove their claims on the balance of probability, I am not satisfied to the required standard that there were insufficient signs. Unless the Appellant can point to any particular difficulty which means they were unable to see the blue and yellow signs, I do not intend to accept the appeal on this point.

The Appellant next argues the charge is not a genuine pre estimate of loss. The Operator claims the charge is an agreed contractual term. Unfortunately for the Operator they have not provided evidence of the contractual sign in a format I can read therefore I have to accept the evidence provided by the Appellant. This seems to confirm that the charge is imposed for breach of contract rather than a contractual term. However, in such a case loss is only one issue and loss does not only arise where the car park is pay and display. In addition, as the onus is on the Appellant and they have provided no further argument on this point I am not minded to allow the appeal on this ground.

The final argument refers to the Operator’s authority. This is arguably irrelevant; however, the Operator has provided evidence in any event.

I'm sure others will advise you better but I'd be writing to DVLA telling them to suspend the operator and any IAS member from accessing data pointing out the above statements.

Access to keeper data under KADDIE is dependent on operator adhering to code of practice (not just BPA) and here IAS say it doesn't matter.

Lack of a sign at the entrance is not acceptable, it could be viewed as entrapment and judges have dismissed cases on this point alone.

If IAS "independent" assessor cannot read the signs whilst stationary at a desk what hope has a motorist in a moving vehicle?

As it was a breach of contract, it is established case law that the operator has to provide evidence of genuine pre-estimate of loss which they haven't done but IAS want the appellant to prove it isn't?

When DVLA replay with their mealy mouthed non-answers I'd complain to ICO and my MP. This isn't just a kangaroo court, its would embarrass Kafka.

dr_jones

Great points - thank you.

I was considering also writing to the landowner (although I'm struggling to find out who this is at the moment). They may be interested to hear of the shoddy manner in which their land is being 'policed'.

Any thoughts on this or advice on how to identify the landowner?

ManxRed

Google the Retail Park.

There's a few possible candidates, Savills, Jones Laing LeSalle, etc.

Failing that, Land Registry or ask the local Council who pays the rates on it.

nicechap

https://www.gov.uk/search-property-information-land-registry

Fergie76

As the nicechap above said, complain to everyone that you can think of, espcially MP, DVLA and papers, the Daily Mail seem to be hot on PPC's at the minute.

I must have missed the cahnge in law to presumed guilty, until you can prove your innocense. Also complain to the Solicitors Regulator, as these are namelss ASSessors are meant to me barristers.

Toiletduck

dr_jones wrote: »

The lack of a sign at the entrance is not fatal to the charge in my view. The driver is still driving at that point and has little opportunity to consider any such sign in any event. I am more concerned that once the driver exits the vehicle and looks around, as all drivers should, that signs are visible, which moves us onto the Appellant’s next point.

Some serious contradiction here with previous dismissals of JLA appeals where IAS believe its perfectly acceptable for drivers to be able to read, understand and agree to the Liverpool Airport non-stopping terms and conditions as they drive past the sign at 30 mph.

jkdd77

hoohoo wrote: »

Another ludicrous judgment

You could have proven the GPEOL by submitting from here
http://www.parking-prankster.com/excel-parking.html

The whole point of the appeals system is to avoid court. However, if the appeals system is useless, the only option is to use it to show willing, then inform the operator that the verdict was not conclusive due to the limitations of the system the operator chose to use, and therefore go to court anyway.

I don't agree at all that a motorist is required to use such a biased PPC-controlled kangaroo court to "show willing", nor that a motorist who fails to do so has acted 'unreasonably'.

If anything, it would be more unreasonable to waste everyone's time, and the PPC's money, by appealing to the kangaroo court in the certain knowledge that the appeal will be rejected and that he/she will then ignore anyway (except court papers).

References to upheld appeals prior to the granting of 'Approved Operator Status' are of no relevance, since the "I"AS was pretending to be independent at that time in order to get the stamp of DVLA approval, and, now it has been granted, are free to simply reject valid appeals with impunity.

There is also a risk that, having 'appealed' to the kangaroo court, the PPC will be more willing to pursue the claim in a real court in order to (try to) get their 'appeal fee' back, and also that a naive judge may think that, by appealing, the motorist has accepted the authority of the kangaroo court, and that its findings are persuasive.

Those who think that the Government will do anything about the disgrace that is the PPC's kangaroo court appear not to notice that the DVLA apparently views the entire PPC business model as legitimate, and to be wholly pro-PPC in all respects. In other words, they know this appeals body is a sham, and they don't care, regardless of the number of complaints they receive.

I would instead advise sending a sternly worded letter (not an 'appeal') denying liability to the 'I'AS PPC, and then to ignore everything except a formal letter before claim (to be responded to with a further denial) and, of course, actual court papers. This is more than enough to both comply with Civil Pre-Action Protocols and to demonstrate reasonableness.

Herzlos

jkdd77 wrote: »

There is also a risk that, having 'appealed' to the kangaroo court, the PPC will be more willing to pursue the claim in a real court in order to (try to) get their 'appeal fee' back, and also that a naive judge may think that, by appealing, the motorist has accepted the authority of the kangaroo court, and that its findings are persuasive.

I don't think they'd want their kangaroo court to be shot down. Can you imagine the fall out if the victim won at court using points rejected from the appeal? Or if the dodgy practises were made public?

They are more likely to just stick to pursuing ignorers.

Marktheshark

They were set up by a PPC owner who was fed up with POPLA overturning invoices.
How can this be independent ?

Ryan_Bryan

The lack of a sign at the entrance is not fatal to the charge in my view.

Strange how Cygnus Alpha thrashed parking lie in court yesterday on that very point.