Company car - advice is to appeal early, but how early?

frankietwospots

Hi again,

So I've received the evidence pack from POPLA. It includes photographs of my vehicle in the car park, a photo of the signage, a photo of the PCN that was issued, a copy of my letter to KPS, and a letter from KPS in response to my appeal. This is what they say in their letter:

We are unsure of the appellant’s grounds of appeal as there is not a PDF to view of any kind of summary. She also makes no grounds for appeal in her original letter to us. Upon parking in the car park in question the appellant agreed to the terms and conditions of the car park which can be seen on multiple signs around the car park and at the ticket machines (map and photographs have been uploaded). They state that vehicles need to
display clearly a valid ticket. Our operative was very thorough but could not see a ticket in Ms X's vehicle. It is the responsibility of the motorist to ensure that their ticket is displayed correctly were leaving their vehicle.

There is no evidence to prove that the parking ticket photographed and sent to POPLA belonged to Ms X. As the ticket was not on display in her vehicle is could have belonged to another motorist.
We would like to add that all of our signage and the location, and size of each sign has been approved by the British Parking Association. As PCN XXXX was issued correctly we respectfully request that this appeal is refused.

The first sentence troubles me. Am I to presume that POPLA have not sent KPS a copy of my PDF letter of appeal which clearly outlines the grounds on which I've based my appeal? I didn't make any grounds for appeal in my original letter to KPS as I was after a POPLA code at that point. As for the ticket supposedly not being mine and potentially belonging to another motorist, well that is utter rubbish. I mean, really?!

Would love some advice on how to proceed with this - thanks!

Edna_Basher

frankietwospots wrote: »

I've received the evidence pack from POPLA. It includes photographs of my vehicle in the car park, a photo of the signage, a photo of the PCN that was issued, a copy of my letter to KPS, and a letter from KPS in response to my appeal.

But crucially, no copy of any contract with the landowner to demonstrate that KPS had authority to operate there?

If this is the case, you need to highlight to POPLA that the Operator has provided no evidence to counter your claim that they had no authority to operate at this site and that POPLA must reasonably infer from the Operator's silence that there was no such authority. That point alone should be enough for your appeal to be allowed.

Coupon-mad

You need to email POPLA to ensure that the PDF appeal is supplied to the company (mainly just in case POPLA haven't seen it, if it didn't attach properly). Are you CERTAIN it attached? Did you keep a screenshot showing the little icon of the attachment?

Email POPLA attaching it and stating you are concerned the Portal has failed to retain the PDF you attached and you understand that it is in the public domain that POPLA experienced some problems with attachments before Christmas. So for the avoidance of doubt, the PDF is again attached for the evidence file and you wish to add the following comments {e.g. comments about the signage if the £sum is not in prominent size/font and pointing out that you are the keeper and they never issued a NTK - presumably - as you haven't mentioned they showed any NTK}.


Do not comment about this below, it doesn't help you because the case is about non-display so arguing about this would be pointless and presents the danger of saying who parked, which of course this does:

''As for the ticket supposedly not being mine and potentially belonging to another motorist, well that is utter rubbish. I mean, really?!''

frankietwospots

Thanks. I've emailed POPLA to query whether a) they received the PDF and b) whether they then forwarded it to KPS. I attached it to my email for the avoidance of doubt and asked for an urgent response. I used the info@popla.co.uk address so I hope that was the right one.

Good point about avoiding responding to the silly comment that the ticket could have been someone else's. I'll avoid being pulled into that one! And also, good point about the failure to produce any kind of contract in the evidence pack. Once I know whether they've received the PDF, then I'll put together my rebuttal.

frankietwospots

Just had a reply from POPLA:

Thank you for your email.

I can confirm that i have attached your comments to your appeal.

Kind Regards

XXXX

POPLA Assessor

Not sure whether to take that as a) they have NOW attached my comments to my appeal as they didn't do so originally or b) whether KPS somehow didn't receive my letter of appeal. Either way, I think one of the points of my rebuttal will be I set out the grounds of my appeal clearly to the car parking operator.

Coupon-mad

I think they have now attached the appeal PDF and treated it as if it's your 'comments' and won't have sent it to the operator. So you need to follow that email quite quickly over the weekend, with your actual rebuttal and email that too.

Who cares if the PPC haven't seen the appeal. Not your problem.

frankietwospots

True!

Righto, I'll work on my additional comments over the weekend.

frankietwospots

Here's a draft of my rebuttal to the evidence pack. Comments welcome as always!

I hereby provide my rebuttal to the evidence pack supplied by POPLA in respect to case no. XXXXXX.
1) Firstly, I have grave concerns that POPLA did not attach and share my PDF appeal letter to the car park operator. Please see my email to POPLA dated 13/01/16 and the reply from POPLA assessor XXXX XXXX on 14/01/16. The letter from Kernow Parking Solutions which is part of their evidence pack suggests that they did not see the PDF appeal letter:
‘We are unsure of the appellant’s grounds of appeal as there is not a PDF to view of any kind of summary.’

I attached a PDF Word document to my appeal, outlining in detail the grounds of my appeal. I experienced a number of problems submitting my appeal (e.g. repeated failure to attach documents, being forced to switch browser) and it is in the public domain that POPLA were having problems with their website during the Christmas period. It’s my belief that either POPLA have jeopardised my case by failing to share the appeal document with the car park operator, or that the car park operator have chosen to ignore the attachment.

2) No copy of a contract with the landowner has been produced in the evidence park. The Operator has provided no evidence to counter my claim that they had no authority to operate at this site. It is reasonable to infer, therefore, that the Operator's silence indicates that there was no such authority. To reiterate, Kernow Parking Solutions do not ‘exist’ in the sense that there is no identified legal entity which would be a registered company or an identified sole trader. Kernow Parking Solutions are the latter but fail to identify on their signage and the PCN that was issued, who that sole trader is. Therefore they cannot claim to have entered into a contract with the Keeper.

3) As noted in my appeal letter, a valid ticket WAS purchased at Mousehole Parade Car Park at 13.29 and photographic evidence has been supplied of the said ticket. The times on the ticket e.g. one hour’s parking expiring 14.29 match the timings outlined on the PCN.
4) The evidence pack includes a photo of the car park signage. The wording on the car park signage regarding PCN charges is small and unclear. Nothing about KPS’s onerous inflated 'parking charges' was sufficiently prominent on their signage and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

5) There is no Genuine Pre-estimated of Loss (GPEOL) breakdown included to show how KPS have come up with £100 penalty. In its evidence pack, KPS has failed to provide sufficient evidence to justify the £100 loss the landowner might have incurred. For this charge to be justified, a full breakdown of the costs KPS has suffered as a result of the car being parked at the car park, is required and should add up to £100. This has not been provided.

I request that my appeal is upheld and for POPLA to inform KPS to cancel the Penalty Charge Notice.

Yours faithfully,

THE REGISTERED KEEPER

Coupon-mad

Re the NTK, point out that they have still not shown a compliant NTK and the points you made about that still stand. The wording in Schedule 4 is prescribed and mandatory, and any omission, however small, means there can be no keeper liability.

Re signage I would also add that:

The parking charge being unreadable means it is not compliant with Schedule 4 of the POFA which requires 'adequate notice' for drivers of the actual 'charge'. In Beavis this was key, as the Judges found that the Notices in that case were 'prominent' and the charge itself was in 'large lettering' and could not be clearer. That is not the case here and no photos have been supplied of the wording at the P&D machine which is in fact where the allleged contract would have been formed, if it was. It is highly probable that the P&D machine had wording about the tariff but nothing clear about the onerous 'charge' itself. Therefore there is no evidence that the driver actually consented to that part of the alleged 'bargain' (I use that term loosely).

Re GPEOL, add in a version of salmosalaris' argument here:

https://forums.moneysavingexpert.com/discussion/comment/69931055#Comment_69931055

That uses Beavis to show how a P&D car park is completely the opposite of that case. By contrast, this charge is a matter of a simple financial contract that still has to be based upon a GPEOL. Also add that in Beavis at the Supreme Court stage it was said at 97 that:

''ParkingEye concedes that the £85 is payable upon a breach of contract, and that it is not a pre-estimate of damages. As it was not the owner of the car park, ParkingEye could not recover damages, unless it was in possession, in which case it may be able to recover a small amount of damages for trespass.''

frankietwospots

So I have the POPLA decision. I'm confused. It says it's unsuccessful but then at the end says 'I must allow the appeal'???

Decision: Unsuccessful
Assessor Name: James Beaton
Assessor summary of operator case
The operator states that it issued the Parking Charge Notice (PCN) on the basis that the driver failed to display a valid ticket.

Assessor summary of your case
The appellant is appealing on the following grounds. 1. A valid ticket was purchased for the duration that the car was parked 2. No keeper liability and failure to comply with POFA 2012 3. No standing or authority to pursue charges nor form contracts with drivers 4. No genuine pre-estimate of loss 5. Unlawful penalty clause 6. Inadequate signage – no contract agreed to pay £100

Assessor supporting rational for decision
The appellant states that A valid ticket was purchased for the duration that the car was parked. The appellant states that No keeper liability and failure to comply with POFA 2012 The appellant states that No standing or authority to pursue charges nor form contracts with drivers The appellant states that the charge is not genuine pre-estimate of loss The appellant states that it is an unlawful penalty charge The appellant states that the car park has Inadequate signage – no contract agreed to pay £100. The operator states that it issued the Parking Charge Notice (PCN) on the basis that the driver failed to display a valid ticket. The appellant has acknowledged that the ticket had fell off his windscreen inside his vehicle. Section 7 of the British Parking Association (BPA) code of practice requires operators to own the land or to have written authority from the landowner to operate on the land. As the operator has failed to provide any evidence in response to this ground of appeal, it has failed to prove that it has the required authority to operate on the land in question. I acknowledge that the appellant has raised other grounds for appeal, but as I have allowed the appeal on this basis, I have not considered them. Accordingly, I must allow the appeal.