MET Parking at McDonalds

Big_Ells

Thanks. God that's a lot to try and digest. I have made a reply and would appreciate some input and comments if possible, I have a dropbox link to the original evidence pack supplied by MET if anyone would like to look over it:

Good morning

Regarding your email asking for additional evidence please see attached appeal (added the original POPLA Appeal). Also I would like to raise the following points:

Your letter is making false representation as to what the courts stated regarding Parking Eye vs Beavis and comes across that you have prejudged my case in favour of the Car Park Operator. I will be raising this with the AOS Investigations Team.

I demand that all appeal points be considered, not just those pertaining to GPEOL that you seem to be focusing on in your letter.

The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I content it is not the assessors job to make the case on behalf of the operator.

The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices'.

I also disagree that signage was sufficient. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.

The signage in this location is clearly deficient compared to the signage in the Beavis case. This brings both the penalty issue back in play, and also the unfair contract terms argument.

Coupon-mad

You could also incorporate some of this brilliant work by Edna Basher which can be used in any comments to WH acting 'as if they were POPLA':

https://forums.moneysavingexpert.com/discussion/comment/70721360#Comment_70721360

HTH

Edna_Basher

I suggest that you make MET's non-compliant Notice to Hirer a prominent point in your additional evidence. This is a routine winning point in a hirer's appeal under "normal" POPLA (first with London Councils and now with Ombudsman Services).

I'll dig out some appropriate wording.

Edna_Basher

With regard to the non-compliant Notice to Hirer, here's something for you to work on.

1) The Operator failed to deliver a Notice to Hirer in compliance with the requirements of Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”)

The Operator’s claim is against the vehicle’s hirer rather than the driver.

In order to have the right to claim unpaid parking charges from a vehicle’s hirer, an operator must deliver a Notice to Hirer in full compliance with POFA’s strict requirements. In this particular case, the Operator failed to do so

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4 of POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (a) a statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) a copy of the hire agreement; and (c) a copy of a statement of liability signed by the hirer under that hire agreement), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)).

The Operator did not provide copies of any of these documents with its Notice to Hirer.

Paragraph 14 (5) (b) specifies that the Notice to Hirer must refer the Hirer to the information contained in the Notice to Keeper.

The Operator’s Notice to Hirer merely referred the Hirer to the Notice to Keeper *, rather than referring the Hirer to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, The Operator failed to provide much of the information required to be included in the Notice to Keeper under Paragraph 9 (2).

The Operator has therefore forfeited any right to hold the hirer liable and for this reason alone this appeal must be allowed.


* check the Notice to Hirer to make sure that this is correct

To add weight to these points, you can refer to MET's original evidence pack to back-up your statement that MET failed to include with their Notice to Hirer copies of the hire documents and a copy of the Notice to Keeper originally sent to the lease company.

Big_Ells

Edna_Basher wrote: »

To add weight to these points, you can refer to MET's original evidence pack to back-up your statement that MET failed to include with their Notice to Hirer copies of the hire documents and a copy of the Notice to Keeper originally sent to the lease company.

That's brilliant, none of that information was provided, just the first letter to Toyota financial labels 'Original Charge Notice' then a letter to my company as balled as 'Notice to hirer'

This is the original letter:
http://i.imgur.com/qitVWhA.jpg
http://i.imgur.com/r8COt1l.jpg

Edna_Basher wrote: »

The Operator’s Notice to Hirer merely referred the Hirer to the Notice to Keeper *, rather than referring the Hirer to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that the Operator did not provide a copy of the Notice to Keeper as required under Paragraph 14 (2) (a). Consequently, The Operator failed to provide much of the information required to be included in the Notice to Keeper under Paragraph 9 (2).

I'm a bit unsure on this bit.

Edna I have sent you a link to the evidence pack.

One thing I did notice is they cut off the 2nd page of my original appeal letter in the evidence pack which says

Following the EU Consumer Rights Directive, express consent must be obtained for consumer contracts now - not implied consent. You have failed to meet these requirements and you did not serve the driver with the terms by durable medium.

By replying to the challenge you are acknowledging receipt and acceptance of points 2 and 3 above.

I have kept proof of submission of this challenge. I look forward to your considered reply within 35 days.

Edna_Basher

Hi Big Ells

I've had a quick scan through MET's evidence pack - there's plenty in there to entertain and amuse.:)

I can see that you raised non-compliance with POFA in your company's letter of dispute to MET. However, it's not clear whether you included the non-compliant Notice to Hirer point in your final submission to POPLA - maybe that's why POPLA decided to adjourn the case?

Never mind that - I can see that MET's Notice to Hirer was wonderfully non-compliant - it makes no reference to POFA and doesn't even attempt to hold the hirer liable for the charge. This point alone will be enough for you to win (so long as Wright Hassall do their job properly). I'll come up with some revised wording to fit with the actual Notice to Hirer.

There are other points that you could chuck in if you felt like it.

For example, I see that MET's evidence of landholder's authority consists of a pre-printed McDonald's witness statement signed and dated 30th August 2013 i.e. nearly two years before the parking incident. "Old" POPLA should not have accepted this as valid evidence.

I also see that the car park signs do not pass the "Beavis Test" - they are not sufficiently clear with the warning of a £100 Parking Charge not being prominently displayed on the sign.

Big_Ells

Right had another stab at it and tried to make it as easy for them to see as possible:

Good morning

Regarding your email asking for additional evidence please see attached appeal. Also I would like to raise the following facts and demand that all appeal points be considered, not just those pertaining to GPEOL that you seem to be focusing on in your letter.:

1. Your email is making false representation as to what the courts stated regarding Parking Eye vs Beavis and comes across that you have prejudged my case in favour of the Car Park Operator. I will be raising this with the AOS Investigations Team.

2. MET Parking’s Notice to Hirer was non-compliant - it makes no reference to POFA and doesn't attempt to hold the hirer liable for the charge neither does it include and requirements as stated in the BPA’s Code of Practice.

As stated in the BPA’s Code of Practice:

20.18 Schedule 4, paragraphs 13 and 14, of POFA 2012 sets out the strict terms under which the hirer may become liable instead of the keeper. These include that:
• you are given a signed statement from the vehicle-hire firm within 28 days of the Notice to Keeper, along with a copy of the hire agreement and a copy of a statement of liability signed by the hirer, and
• these statements contain the details set out in paragraph 13 of Schedule 4.

20.19 Your Notice to Hirer must satisfy the detailed requirements of paragraph 14, including:
• the contents you need to include in the Notice to Hirer – paragraph 14(5)
• the documents you must send with it – paragraphs 13(2) and 14(2)
• the methods of serving the Notice to Hirer – paragraph 14(6)
• the deadlines by which the Notice to Hirer must be served – paragraphs 14(2) and 14(3).

I will not quote paragraphs 13 and 14 as you should be well versed in the Codes of practice.

3. MET Parking's evidence of landholder's authority consists of a pre-printed McDonald's witness statement signed and dated 30th August 2013 i.e. nearly two years before the parking incident. A screen grab from an excel does not prove as a point that they have authority at that particular restaurant.

4. MET Parking have also redacted page 2 of my original appeal letter from their evidence pack. This looks like a conscious effort to deceive the POPLA appeal accessor.

5. The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I content it is not the assessors job to make the case on behalf of the operator.

6. The Supreme Court made it perfectly clear that the judgment was not a silver bullet which justifies all parking charges. On Nov 4th they tweeted that the judgment was taking in account use of this particular car park & clear wording of the notices'.

7. I also disagree that signage was sufficient. Here are a few of the references to signage from the judgment:

Para 100: “The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it” and “They must regard the risk of having to pay £85 for overstaying as an acceptable price for the convenience of parking there.”

Para 108: “But although the terms, like all standard contracts, were presented to motorists on a take it or leave it basis, they could not have been briefer, simpler or more prominently proclaimed. If you park here and stay more than two hours, you will pay £85”

Para 199: “What matters is that a charge of the order of £85 (reducible on prompt payment) is an understandable ingredient of a scheme serving legitimate interests. Customers using the car park agree to the scheme by doing so.”

Para 205: “The requirement of good faith in this context is one of fair and open dealing. Openness requires that the terms should be expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously to the customer.”

Para 287: In so far as the criterion of unconscionableness allows the court to address considerations other than the size of the penalty in relation to the protected interest, the fact that motorists entering the car park were given ample warning of both the time limit of their licence and the amount of the charge also supports the view that the parking charge was not unconscionable.

The signage in this location is clearly deficient compared to the signage in the Beavis case. This brings both the penalty issue back in play, and also the unfair contract terms argument.

I look forward to your decision on all the points raised

Kind regards,

Coupon-mad

Nice one!

I would just change:

I will be raising this with the AOS Investigations Team.

to

I will be raising this with ISPA, along with any other procedural impropriety on the part of Wright Hassall which demonstrates to me that you are not acting 'as if it were POPLA' which is your only remit as regards my appeal. Had an Assessor looked at my case (and I am aware that POPLA did not, at all) the old POPLA service would undoubtedly have upheld my appeal on a number of matters, as explained further below.

And in #5 you could add:

The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I contend it is not the assessors job to make the case on behalf of the operator. I would remind Wright Hassall that, at the end of September 2015, the outgoing POPLA Service Manager confirmed this (below) in writing, as the official POPLA policy (which you MUST apply) regarding applying the Beavis case and other case law:

''It does remain the position that it is for the party seeking to rely on any authority from a case in the higher courts, to explain how they submit it relates to the appeal in question and in particular the matter to be determined.''
Yours sincerely
R Reeve
POPLA Administrative Team

Edna_Basher

If you're feeling mischievous you could change the closing sentence in your letter to:

I look forward to receiving from one of your named assessors their decision on all of the points raised.

bod1467

Coupon-mad wrote: »

And in #5 you could add:

The Operator has not attempted to relate their case to that of ParkingEye v Beavis, and to therefore justify their charge. It is their responsibility to make their case. As they have not, there is therefore nothing for me to rebut. I contend it is not ...

Minor correction.