uxbridge park direct successful POPLA appeal

Labwalker

As registered keeper, I wish to appeal. The background is that there was no windscreen ticket applied, at all. I have the following appeal points:
1. There was no PCN issued at all.
2. There is no evidence of any contravention because photos were taken at a distance, by an “attendant” on a mobile camera I believe
3. The NTK fails to establish “ keeper liability”
4. Inadequate , unclear & non compliant sign
5. No contract- and if POPLA find there was one ,I hereby cancel it
6. Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013
7. Lack of sufficient contractual authority
8. The charge is not a genuine pre-estimate of loss .
9. Breach of DVLA KADOE contract. No audit trail and no reasonable cause.
10. Operation is not reasonable, consistent or transparent
11. Unfair terms - Unenforceable Disguised Penalty
12. Grace period insufficient despite BPA CoP


1. There was no PCN issued at all. This has left me unsure whether to research paragraph 8 of Schedule 4 of the POFA2012 or paragraph 9 instead. The deadlines for service of an NTK and other facts differ, so this hybrid posted 'Notice' was ambiguous, unfair and has unjustly jeopardised my appeal.

2. There is no evidence of any contravention because photos were taken at a distance, by an 'attendant' on a mobile phone camera I believe. This merely shows the vehicle on site but the driver was there too. This is not evidence of parking, nor any contravention whatsoever.

3. The NTK fails to establish ‘keeper liability’ as shown (these words are from paragraph 9 of Schedule 4 but equally I could quote paragraph 8 because of this hybrid document):

The Notice to Keeper is not compliant with POFA 2012, Schedule 4 due to these omissions:
''9(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;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid, as at a time which is—
(i)specified in the notice; and
(ii)no later than the end of the day before the day on which the notice is either sent by post or, as the case may be, handed to or left at a current address for service for the keeper (see sub-paragraph (4));
(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.''

Where paragraph 9 requires certain wording, it is omitted - except a small amended sentence on the payment slip (which has been found in Council PATAS appeals, not to count as the 'PCN' because it is a separate section, designed to be removed). Also, as keeper I cannot be expected to guess the 'circumstances in which the requirement to pay...arose' because the charge is stated to be based on 'an outstanding parking charge'. This so-called outstanding 'parking charge' is not quantified and the signs do not support that contention (see point 4) therefore the NTK misstates the alleged contravention and fails to meet the strict requirements of POFA2012.

Conversely the NTK fails to identify the 'creditor' and fails to state a 'period of parking' so it again does not meet the requirements of POFA 2012. It is not for me to guess who the creditor is. It could be 'ParkDirectUK 'or 'ParkDirectUK Ltd' (both legal names are on the NTK), or alternatively the creditor could be their client, or the landowner, or another party.

There is no 'keeper liability' from a fundamentally flawed NTK and POFA 2012 only applies to parking events. This was not a parking event at all, it was an example of ParkDirect's well documented (in the national press) sharp practice in taking photos of any vehicle which drives through/turns around near their operative with a mobile phone camera, then sending out speculative demands.
POPLA Assessor Matthew Shaw has stated that the validity of a Notice to Keeper is fundamental to establishing liability for a parking charge. ''Where a Notice is to be relied upon to establish liability ... it must, as with any statutory provision, comply with the Act.'' As the Notice was not compliant with the Act due to the many omissions of statutory wording, it was not properly given and so there is no keeper liability.


4. Inadequate, unclear & non-compliant sign

The signs do not identify, as required for a 'distance contract' within the Consumer Contracts(Information, Cancellation & Additional Payments) Regs
''(d) where the trader is acting on behalf of another trader, the geographical address and identity of that other trader;
(e) the geographical address of the place of business of the trader, and, where the trader acts on behalf of another trader, the geographical address of the place of business of that other trader, where the consumer can address any complaints;''

In case Park Direct dismisses this appeal point, saying merely that this type of contract is exempt from these regulations, I contend it is not because the only exemptions are listed in the Regs and this 'contract' fits none of the stated exemptions. This is certainly not a simple, immediate ‘day to day transaction’ defined by the EU in the Guidance as ‘buying a cup of coffee or a newspaper’. In fact, providing parking spaces as a 'service' for a fee is specifically stated as covered by the Regulations, as shown here in the EU Guidance behind the original Directive upon which the UK Law is based:
'' 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. ''


5. No contract - and if POPLA find there was one, I hereby cancel it.
The elements of a contract are missing in this case and the Park Direct should never have sent me a demand for money. Their 'service' of supposedly offering a parking space was not accepted by the driver. In this instance the alleged contract was not concluded by performance nor did consideration flow between the parties - in short, no parking 'service' was provided. The driver arrived; passenger got out and read a parking sign, relayed information to the driver about the sign and then the driver left straight away. Photographic evidence provided by Park Direct show this to be the case.

Yet Park Direct has sent me a NTK charging for a non-existent contract for an unperformed service. As such, under the Unsolicited Goods & Services Act I exercise my right to reject the invoice (NTK). And under the Consumer Regs linked in point #6 I hereby cancel the contract (which is denied anyway) and as soon as Park Direct reads this they will be deemed to have received my Notice of Cancellation. This is not a situation where a trader can recover a charge and it also breaches the CPUTRs 2008, as amended by regulation 39 of the following:


6. Failure to comply with the Consumer Contracts(Information, Cancellation and Additional Payments) Regulations 2013
These Regulations apply to all UK consumer contracts from June 2014. This is a service contract* offered by written terms in print on a sign which is a 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, other than a sales 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:
''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 Regulations 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 nor performed at all, so this is a breach of the Regulations).
Regulation 39 introduces a new provision into the Consumer Protection from Unfair Trading Regulations 2008 which provides that a consumer is not required to pay for the unsolicited supply of products (as happened here – the NTK is an unsolicited invoice).
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 at all - the driver left).

Information breaches of these Regulations:
There has been a clear failure to serve by 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.''

“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded'' (EU definition).

Everything has been omitted, including no information given about the right to withdraw (there is no exemption from this even for distance contracts with limited space or time).


7. Lack of sufficient contractual authority

Park Direct have no standing as they are an agent, not the landowner. They also have no BPA-compliant landowner contract containing wording specifically assigning them any rights to form contracts with drivers in their own name, nor to pursue these charges in their own name in the Courts.

I put Park Direct to strict proof of the above in the form of their unredacted contract. Even if a basic site agreement is produced and mentions PCNs, the lack of ownership or assignment of title or interest in the land reduces any contract to one that exists simply on an agency basis between Park Direct and their client, containing nothing that could impact on a third party customer. Also the contract must be with the landowner - not another agent - and must comply with paragraph 7 of the BPA CoP and show that this contravention can result in this charge at this car park and that Park Direct can form contracts with drivers in their own right. The whole contract is required to be produced, in order to ensure whether it is with the actual landowner, whether money changes hands which must be factored into the sum charged.



8. The charge is not a genuine pre-estimate of loss

The demand for a payment of £100 is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have potentially been suffered by the Landowner. I put Park Direct to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated and how it was caused by this alleged sub-2 minute parking event. This PCN is really about breach of contract, so loss must be shown or the charge is unenforceable. Park Directs response to my appeal letter refers to 'breach of contract' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation. The original PCN has no mention of contract just a demand for payment of outstanding parking charge and I refer to the points I made earlier in my appeal about contracts.

Park Direct states, but not limited to "staff costs, premises, telephone, letters and postage, IT systems and support, depreciation of assets, human resources and overheads" within their explanation for calculating genuine pre-estimate of loss. These are all costs which would occurred whether the claimed contravention took place or not and cannot be calculated in any genuine pre-estimate of loss. The parking 'charge' should be cancelled on this point alone.

Park Direct 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. Cost such as normal operational costs (as listed above) and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this event.

Park Direct 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. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator.
Further, if Park Direct claims that there was a 'GPEOL' then they must prove it was not just a convenient summary of costs, written after the event. I put them to strict proof that a GPEOL was ever discussed and decided for this contravention at this site. This must include documentary evidence of a meeting with their client or emails or other evidence which shows how/when/why this PCN sum was decided in advance, specifically for this client in this car park. Showing that the GPEOL was discussed and set before the parking event is just as important as showing they have a contract in place before the parking event. In the 2014 POPLA Annual Report prepared by the Lead Adjudicator, Mr Greenslade, he 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."


9. Breach of DVLA KADOE contract. No audit trail and no reasonable cause.
Operators are only authorised under their KADOE contract with the DVLA to request keeper’s data if one of the following has arisen:

- where a PCN on a windscreen has already been issued, in the case of a manned car park.
OR
- where the issue of a PCN by post is planned (without a windscreen PCN) - this being allowed only in the case of an ANPR camera car park.

This case was neither. It lacks the required audit trail the DVLA insist upon from all AOS members. DVLA Inspectors enforce the rule: 'all vehicles should be ticketed where ANPR technology is not utilised'. This is a fact in the public domain via FOI:
Driver and Vehicle Licensing Agency - November 2012
‘‘I have since my visit taken further instruction on this procedure. Please would you note that if an operator has the ability to take a photograph of the offending vehicle they should also place a ticket on the vehicle and allow the transgressor time to pay before data is requested from DVLA. I advise that all vehicles should be ticketed where ANPR technology is not utilised.
Summary of Issues: {Operator} to cease making vehicle keeper enquiries to DVLA where ANPR technology has not been used, and vehicles have not been ticketed. (Lack of Audit Trail) ’’

This was not a car park with ANPR cameras. An operative took manual photographs there was no attempt to issue the penalty at the time of the alleged parking . So it is a non-ANPR case for which there MUST be a Notice to Driver served first and 28 days allowed for the driver to appeal or pay. In fact, 28 days was not allowed, a hybrid Notice was posted early, as soon as Park Direct got my data soon afterwards. There was no PCN served so this should never have progressed and it constitutes a DVLA and ICO rules breach - this matter is a common scam played out by Park Direct and it is the subject of several current complaints to the BPA.

This makes a mockery of the DVLA KADOE contract, their ICO registration, the POFA, the BPA CoP and Consumer Protection regulations. I believe this is a case that should also be raised to the attention of the Lead Adjudicator for his next report and for POPLA to forward to the BPA as an example of continuing expressly disallowed procedure.
10. Operation is not reasonable, consistent or transparent

It would appear that the 'parking attendant' used a handheld ordinary camera/phone to take photographs and there was no windscreen PCN issued so the driver had no idea of any contract nor any alleged breach. I don't believe that the person was wearing any kind of uniform or ID showing they are involved with 'parking enforcement' while the parking attendant proceeded to secretly take photos of the vehicle without making themselves known to the driver, as evidenced by the fact the images are all distant. I require evidence that the person was properly trained in the BPA Code of Practice as is required for any self-ticketing, as the lack of grace period and the secret pictures taken leads me to think this was not a trained operative. Nor were they using a liveried vehicle, and I contend that mobile phone pictures from a passer-by are neither reliable nor compliant with the BPA CoP as this is not a reasonable, consistent nor transparent operation. No attempt was made to issue a ticket due to but not limited to the use of non compliant photographs, untrained parking attendants and no uniform or ID and simply the vehicle was never “parked “..



11. Unfair terms - Unenforceable Disguised Penalty

The sign & the NTK are unclear, ambiguous & contradictory. On the NTK the sum is extremely hard to find, hidden in small print on the back. It is stated as a 'contravention' for 'breaching the terms' and this is repeated in the rejection. Yet the sign misleadingly alleges a 'contractual' sum. If so, there would be a time-limited stay, a payment mechanism and a VAT invoice. There is none. This is a disguised penalty. Terms must be clear otherwise the interpretation that favours the consumer applies
12.Grace period insufficient despite BPA CoP

The BPA code of practice states that: “You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.”

The driver of the vehicle was in the car park according to the evidence provided by Park Directs first Parking Charge Notice and their subsequent response to a letter of appeal for a total of 1 minute 41 seconds, this does not allow a reasonable grace period for the driver to notice a sign while driving, find a space, stop, read the sign and make a decision to leave. Park Direct’s response to letter of appeal does not state what the period of grace is for this car park. I require Park Direct to provide the information of what the reasonable period of grace for this car park is so that this can then be determined if this is “ Reasonable “. In this case the driver arrived in the car park, backed into a parking bay, the passenger got out, read the parking notice, the driver made the decision to leave and left. This process took the whole 1 minute 41 seconds and evidence shows the driver with the vehicle at all times.

Yours faithfully

Labwalker

Just posted above. Thank you so much to this forum as I constructed this appeal from information here. Fabulous info. Park direct took one look at this when POPLA copied them in and they withdrew the ticket, didn't even get to the hearing date. Park Direct sent nasty letter in response to my first direct appeal to them.So without info in this forum they were fully intending to push the ticket through. NB i had to delete links that were included as this forum doesnt like newbies posting links in case they are nasty spammy ones

maninthestreet

Did you expect us to read all that?

ampersand

maninthestreet wrote: »

Did you expect us to read all that?

#########
Unhelpful post, mits. Suggest you read forum rules.

op - well done and thankyou for updating us.
It's helpful to know how/why/at what stage, a scumpany has caved.
Now you can forget about the whole business and the poster, mits.

SteveBee

I got a pcn from parkdirectuk .I dont want to pay them a penny whats the best way to go about it thanks.

Coupon-mad

SteveBee wrote: »

I got a pcn from parkdirectuk .I dont want to pay them a penny whats the best way to go about it thanks.

Read the NEWBIES 'sticky' (permanently stuck at the top) advice thread, 2 clicks away.

Go to 'Forum Jump' in grey on the right of this page and click GO. Then click on the NEWBIEs thread near the top. On a forum, always read the sticky threads first!

Redx

SteveBee wrote: »

I got a pcn from parkdirectuk .I dont want to pay them a penny whats the best way to go about it thanks.

reading the NEWBIES sticky thread, then if you need help start your own NEW THREAD using the NEW THREAD button on the main forum (bottom left)

SteveBee

Can I use a samsung s3 to access newbies havent been able to access it cant see it and getting frustrated.Need to get answers quick about park direct pcn .Help .Do I need a computer.Or is smartphone ok.!!

SteveBee

Can I use a samsung s3 to access newbies havent been able to access it cant see it and getting frustrated.Need to get answers quick about park direct pcn .Help .Do I need a computer.Or is smartphone ok.!!

bod1467

http://forums.moneysavingexpert.com/forumdisplay.php?f=163

Can you see the list of threads in that link? The NEWBIES thread is (currently) the 3rd one down.

See also my signature.

(People need to learn how to navigate and use this forum if they want best advice; that's why we usually won't post direct links).

SteveBee

Thanks will try to post new thread.