Park Direct evidence from a mobile device but no PCN served

elponce28

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Coupon-mad

Standard rejection letter, not specific to your case. So, show us your draft POPLA appeal based on what you read over the weekend on the NEWBIES thread where the most recent POPLA examples are.

Redx

I think the OP is asking if post #27 is good enough or needs further changes ?

Coupon-mad

Needs some more work. 4 and 6 are both about signage so need to be amalgamated. #5 is about the UTCCRs but these have been replaced by the Consumer Rights Act in October 2015.

And I would be arguing the differences in this case and the Beavis case, much more strongly.

There are recent examples which do that, in post #3 of the NEWBIES sticky thread.

elponce28

I have made a few changes based on your comments, thank you very much for the replies and your time!!

Is it making sense? Please point me out if I am going in the right direction or not...


*******

I am appealing the parking charge xxxxxx as the registered keeper of vehicle xxxxxxx

1) The charge is extravagant and not a Genuine Preestimate of Loss.
2) The Notice to keeper failed to meet the requirements of POFA to hold the keeper liable.
3)Park Direct do not have locus standi to issue charges.
4) The signage is insufficient to hold the driver liable and impossible to read the terms from a moving vehicle.
5) Disproportionate and unfair chargers, breaching the Consumer Rights Act 2015.
6) Car park address is incorrect.

1) The charge is extravagant, not commercially justifiable and not a genuine pre-estimate of loss.

Therefore a penalty which is not permitted. There are sufficient differences between this incident and the case of Beavis v PE that that case can not be taken as a precedent.
In the Supreme Court judgment in the case of Parking Eye Eye v Beavis the £85 charge was not considered unfair but it was deemed there was not a financial consumer contract in that case. The Court of Appeal had already ruled that the contract between Parking Eye and Beavis was not a financial consumer contract as there was no financial interaction between Parking Eye and the motorist. The fact that the supposed contract in this case is quite obviously a financial consumer contract throws a very different light on the interpretation of UTCCR .This present case is consequently entirely different. The only purpose of the parking charge is to punish a motorist who fails to make payment for the correct time they are parked. It is impossible without intellectual dishonesty to argue that the operator is not attempting to impose a sum grossly disproportionate to any loss, especially when in this case is there is no loss whatsoever other than the parking fee itself...
This car park is not attached or connected to any retail establishment, or any establishment other than the operator to my knowledge that would have incurred any financial loss. I contest that the operator is attempting to impose a penalty and is attempting to enforce an unenforceable unfair contractual term. The term is therefore unfair and is not enforceable.
A contractual term, which imposes the requirement to pay a disproportionately large sum for purportedly failing to pay a far smaller one, is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. The Supreme Court did not change this analysis.
This case can be clearly distinguished from that of Parking Eye v Beavis the judgment in which is irrelevant in this situation. Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply affirms that the decision in that case was based solely on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility. As previously mentioned in this situation there is no such justification.
In the Parking Eye v Beavis at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5. The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. It can be stated as an indisputable fact that the driver would in this case, without a shadow of a doubt, never have agreed to this term, had it been negotiated in advance and with legal representation. It is indisputable that a legal professional would never advise a client to enter a contract that allowed the imposition of a grossly disproportionate charge for failure to make a much smaller payment.

2) The Notice to Keeper received does not meet the requirements of POFA 2012 Schedule 4 paragraph 9.
In particular, but not limited to, section 2, period of parking:
9(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—
(a)specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;
(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.

By not meeting the requirements stipulated in the act the keeper can not be held liable for the charge. The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ''Where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.

Furthermore, it contradicts paragraph 9. Section 2(d):

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));
In this situation, no demand or method to pay £90 or £60 was provided prior to the end of the day on which the notice was sent by post so it is impossible to describe this as unpaid. The alleged contravention took place on the 10th December 2015 but notice was served five days later, on the 15th December 2015.

3) ParkDirectUK does not have locus standi to issue charges on this site.

The 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. In the absence of such title, ParkDirectUK must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put ParkDirectUK to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between ParkDirectUK and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to ParkDirectUK. A witness statement testifying to the existence of a contract will be insufficient.

4) The signage is not visible, clear and unambiguous.

There is no notice at the entrance to the car park and the notice that does exist is at the back of the parking space and too high to be seen by a driver in a vehicle, especially so if the driver reverses into the space as shown in the photograph ParkDirectUK so kindly supplied. The driver did not notice any sign when exiting the car and the car park.
The terms on the signage can only be read if the driver stops the vehicle but it would be already too late as the ambiguous signage and parking charge notice state "no stopping or waiting", when the operator claims to operate a "car park" and a parking company called "Park" Direct UK. Furthermore, the message "no stopping or waiting" breaches the BPA code of practice which mandates a grace period to allow the driver to decide to accept or otherwise a contract and cannot be seen from a moving vehicle.


5) Disproportionate and unfair chargers, breaching the Consumer Rights Act 2015.
http://www.legislation.gov.uk/ukpga/2015/15/contents/enacted

In particular, but not limited to, section 50;
(1)Every contract to supply a service is to be treated as including as a term of the contract anything that is said or written to the consumer, by or on behalf of the trader, about the trader or the service, if—
(a)it is taken into account by the consumer when deciding to enter into the contract, or
(b)it is taken into account by the consumer when making any decision about the service after entering into the contract.
(2)Anything taken into account by the consumer as mentioned in subsection (1)(a) or (b) is subject to—
(a)anything that qualified it and was said or written to the consumer by the trader on the same occasion, and
(b)any change to it that has been expressly agreed between the consumer and the trader (before entering into the contract or later).
(3)Without prejudice to subsection (1), any information provided by the trader in accordance with regulation 9, 10 or 13 of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013 (SI 2013/3134) is to be treated as included as a term of the contract.

And section 62
(1)An unfair term of a consumer contract is not binding on the consumer.
(2)An unfair consumer notice is not binding on the consumer.
(3)This does not prevent the consumer from relying on the term or notice if the consumer chooses to do so.
(4)A term is unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer.
(5)Whether a term is fair is to be determined—
(a)taking into account the nature of the subject matter of the contract, and
(b)by reference to all the circumstances existing when the term was agreed and to all of the other terms of the contract or of any other contract on which it depends.
I hereby challenge this “parking charge notice” as I believe the driver did not agree to a contract as the driver did not see the only sign mention above.

6) The car park address is incorrect.

The driver is adamant that the car was not stopped at the location shown in the PCN because the alleged location on the PCN conflicts with the photograph. Below is a Google street view of Ashmole State, Elias Place 31-44, SW8-1NH:
https://www.instantstreetview.com/@51.481805,-0.113841,-116.84h,-6.79p,1z

And the actual car park, located at Hanover Gardens as it can be seen on Google street view:https://www.instantstreetview.com/@51.481878,-0.113936,-73.92h,-6.01p,1z

This was undoubtedly a ‘concealed pitfall or trap’, which resulted in a disproportionate and unfair charge which placed an unfair burden upon the driver.

Coupon-mad

6) The car park address is incorrect.

The location of the alleged contravention was at Ashmole State, Elias Place 31-44, SW8-1NH. Below is the Google street view of this place:
google street view web location

And the car park, where the evidence shows the car on the PCN, is located at Hanover Gardens as it can be seen on Google street view:
google street view web location

I know you are showing POPLA GSV images but can you explain this better? Spell it out more clearly? I can't work out whether the car was pictured to be elsewhere and the PCN address was wrong....or what?

Use words like 'the alleged location on the PCN conflicts with the photograph. This is not the same place' (if that is right)?

I'm a bit confused and a POPLA Assessor has no experience (they are new) so give them clear information as to what is wrong. Also be careful when saying 'the alleged contravention was here' - I would suggest using the third person to distance yourself: e.g. 'the driver is adamant that the car weas not stopped at the location shown in the PCN because...'

elponce28

6) The car park address is incorrect.

The driver is adamant that the car was not stopped at the location shown in the PCN because the alleged location on the PCN conflicts with the photograph. Below is a Google street view of Ashmole State, Elias Place 31-44, SW8-1NH:
https://www.instantstreetview.com/@51.481805,-0.113841,-116.84h,-6.79p,1z

And the actual car park, located at Hanover Gardens as it can be seen on Google street view:
https://www.instantstreetview.com/@51.481878,-0.113936,-73.92h,-6.01p,1z

System

The first location is the highway. You perhaps should have a word with the local council if Park Direct are ticketing on the highway - as that would be fraudulent. A couple of companies have been closed down for that.

So check you facts and then phone Highways. This is who you need

http://www.lambeth.gov.uk/parking-transport-and-streets/contact-the-parking-transport-and-streets-teams

elponce28

IamEmanresu wrote: »

The first location is the highway. You perhaps should have a word with the local council if Park Direct are ticketing on the highway - as that would be fraudulent. A couple of companies have been closed down for that.

So check you facts and then phone Highways. This is who you need

http://www.lambeth.gov.uk/parking-transport-and-streets/contact-the-parking-transport-and-streets-teams

Thanks for the suggestion
I don't think they are ticketing on the highway. It's just the case that they claim it was on the highway's address but in fact, the car park is around the corner. It still belongs to the same land though but the street location is different

elponce28

Hello again, do you think this is good or would anyone suggest further changes?

I applied the changes suggested and amended some words as it was originally meant to be sent to the PCC. It was edited on the same post #36.

Thank you so much again!