Oooops

Redx

its highlighted in BLUE

just below where it says click on these words , , just above the words you copied and pasted , self explanatory really

Howard_Ino

Not self explanatory when youre a bit thick like me....


It turns out my friend got it wrong too, they didn't get a windscreen ticket, they got a postal ntk with photos and time stamps, accordingly Ive followed your advice and altered one of the templates to suit, could someone comment please as to its suitability?


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.




£90 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 a 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 Smart Parking to explain their calculations behind this charge. My position is that, any 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 Smart Parking 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 Smart Parking to strict proof that they ever had such a meeting.

If there was no meeting to discuss the £90 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 between deterring 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 Smart Parking 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. £90 was simply a figure close to the one set by the BPA, a sum which motorists might 'tolerate'.



I 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, Smart Parking 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 Smart Parking to strict proof to provide an unredacted, contemporaneous copy of the contract which - to demonstrate standing and authority - must specifically state that Smart Parking 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 Smart Parking 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 Smart Parking 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, Smart Parking 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.




I submit that this signage failed to comply with the BPA Code of Practice section 18 and appendix B. The signs failed to properly warn/inform the driver of the terms and any consequences for breach. Further, because Smart Parking are a mere agent and place their signs so high, they have failed to establish the elements of a contract (consideration/offer and acceptance). Any alleged contract (denied in this case) could only be formed at the entrance to the premises, prior to parking. It is not formed after the vehicle has already been parked, as this is too late. In breach of Appendix B (Mandatory Entrance Signs) Smart Parking have no signage with full terms which could ever be readable at eye level, for a driver in moving traffic on arrival. The only signs are up on poles with the spy cameras and were not read nor even seen by the occupants of the car, who were there at the invitation of Asda, to shop and enjoy free parking as expressly offered to customers in the principal's advertising and website.











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:
http://www.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. Smart Parking 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 1.5 hours minutes. There is a petrol station on site, as well as air and water, so I put Smart Parking to strict proof of actual parking for over 1.5 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 store, and so 'parking' for over 1.5 hours would not have occurred


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.''
Smart Parking 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.

Howard_Ino

Would someone mind telling me if this is ok or not please?
Im doing this for a friend so don't want to mess it up.

Redx

seems a reasonable attempt at an appeal but if the driver failed to wait for the NTK they cannot invoke POFA 2012 due to outing the driver (I did mention this earlier) , in other words it sounds more like a keeper appeal and not a driver appeal

the problem here is that it mentions POFA 2012 which doesnt apply to the driver, so some of the latter parts are dubious in my skim reading of the appeal, whereas I would have said, it seems ok if they had waited for the NTK and were appealing as keeper (not as driver)

so although I suppose it could be sent in as a popla appeal, letting the assessor pick and choose what is relevant, I am not sure the copy and paste parts relating to POFA are relevant

I also notice mention of MY VEHICLE etc, or ME in places like the anpr submission, whereas maybe it should say THE VEHICLE and THE DRIVER instead (appealing in the third party and no admissions of whose vehicle etc)

so double check the POFA 2012 sections and the anpr bit as they may apply to the KEEPER whereas I think this person was impatient and so outed the driver (who may or may not be the keeper) so may need those parts tweaking (or removing ? )

once these points have been addressed, its probably good to go

Howard_Ino

Thank you Redx for your comments.


I will address the points you have raised.


The driver it seems didn't get a windscreen ticket, they were caught on anpr so appealed to the notice that came through the post, is this not the notice to keeper?

Redx

yes , that is the notice to keeper

in post #1 you said this

I have a friend whos had a ticket from Smart Parking and appealed with the template from here having just got the ticket, she didn't wait for the ntk.

so I base my comments on your comments

just got the ticket = windscreen ticket

she didnt wait for the NTK = self explanatory

so if this person appealed as keeper to a postal NTK, then keep the POFA 2012 stuff in if you wish, but address the comments about MY vehicle etc

dont tell them things you dont need to, so no admittance of who was driving , stick to 3rd party observations, like THE VEHICLE, not MY vehicle

Howard_Ino

In post #13 I revised this as she told me what had actually happened and revised her original explanation.


"It turns out my friend got it wrong too, they didn't get a windscreen ticket, they got a postal ntk with photos and time stamps, accordingly Ive followed your advice and altered one of the templates to suit, could someone comment please as to its suitability?"


She originally told me she had a windscreen ticket but when she gave me the paper work I realised that in fact it was anpr and there had been no ticket on the windscreen.


I will adjust it as per your advice, thank you for your help.

Redx

I did tell you it was a skim read , so due to the amount of posts I read compared to the amount you read then I think its only normal that things get missed, which is why I told you to check it again and adjust whatever was necessary , which is your job to do, not mine

I trust this has now been done according to the facts of the case , which you will know better than I seeing as you deal with one case a year whereas I deal with more than 12 a day

I also said you could keep it in and let the popla assessor pick out what is relevant

good luck