Park Direct evidence from a mobile device but no PCN served

The_Slithy_Tove

I haven't read it all, but this leapt out at me:

elponce28 wrote: »

Despite the motorist’s claim that the PCN did not state the exact location of the contravention, it did include photographic evidence of the vehicle at the site in question. Also, the appeal reply (attached) that we sent to the motorist, informed them of the location.

So, they haven't said that the NTD/NTK did specify the location, just added some fudge.

Then:

elponce28 wrote: »

The requirements for a Notice to Keeper are set out in section 9(2), Schedule 4 of the Protection of Freedoms Act 2012. They include that it must “specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates”, “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”, “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”, “specify the total amount of those parking charges that are unpaid”, and “inform the keeper of any discount offered for prompt payment and the arrangements for the resolution of disputes or complaints that are available”.

Oh dear, they have all but admitted that the condition in red has not been met.

Therefore, this bit:

elponce28 wrote: »

the PCN is compliant with the POFA 2012.

is clearly untrue.

Redx

elponce28 wrote: »

Just got it! I am going through the images provided.

It may sound silly but can I post here pictures of the "contract" between PPC and the landowner?

no you cannot

but you CAN host any pics you like on tinypic or photobucket and add a dead link in your reply, changing http to hxxp

elponce28

I managed to put this together. Any suggestions? Is it good enough?

I appreciated your imput and the time you guys take to help us out very much, thank you!

In response to the "evidence pack" ParkDirectUK have submitted, I have written my reply in the same order ParkDirectUK has laid out their response. In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on xx/xx/2016.

ParkDirectUK does not have locus standi to issue charges on this site
ParkDirectUK has failed to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.
A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives ParkDirectUK the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849, S!!!!hrope County Court, 16th May 2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, ParkDirectUK have breached the BPA:CoP section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable. Should a basic contract be produced mentioning parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

The signage is not visible, clear and unambiguous.
As you can see the following is printed from the sign at the car park provided as evidence in my previous appeal to POPLA “unauthorised vehicles strictly no stopping or waiting” (as precisely stated on the PCN) which contradicts the sign provided as evidence by ParkDirectUK, which display a message “unauthorised vehicles strictly no stopping/waiting or parking”. The evidence provided by ParkDirectUK is clearly not the same sign but a computer copy. There is no clarity to the sign, or indeed attention to detail. I reiterate that this does leave questions in regards to the accuracy of anything else written within the body of the text.
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. The location in question has no signage with full terms which could ever be readable at eye level from a moving vehicle.
ParkDirectUK has also mentioned that there are numerous signs on site which cannot be true; only one sign is displayed at the back of the car park and no signs with warning at the entrance warning drivers of any parking restrictions. No evidence (or effort) by ParkDirectUK has been provided to disprove the facts.
In light of this, and in addition to these points, I will reiterate my initial appeal, which ParkDirectUK has failed to adequately address
There is no notice at the entrance to the car park and the notice that does exist is at the back 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 the firm is called "Park" DirectUK. 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. 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 mentioned above.
The NTK/PCN failed to meet the requirements of POFA to hold the keeper liable
ParkDirectUK are stating that the Notice to Keeper was fully compliant with POFA 2012 legislation. However this is not the case. They have failed to comply with paragraph 8, section (2)(a) which very clearly states:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Only a time of issue of the ticket is seen on the NtK (as can be seen on the submitted evidence) but not the period of parking, which are very different reqirements, therefore it fails to comply with POFA 2012. It is the law. They have failed to follow this piece of important legislation, resulting in no keeper liability.
Furthermore, the relevant land which the vehicle was “parked” is not the land ParkDirectUK claims to be. The PCN indicates 31-34 Elias Place, SW8-1NS but the car park in question is located at Hanover Gardens as previously stated in my previous POPLA appeal, including google maps for clarification.
So the period of parking and the relevant land is not specified, therefore not compliant with POFA.

The charge is extravagant, not commercially justifiable and not a genuine pre-estimate of loss
I hereby invite ParkDirectUK to break-down their cost to highlight exactly which losses they have allegedly suffered. There is, in fact, no justification in a £100 or even a £60 charge for the alleged offence.
The Department for Transport guidelines clearly states:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
In addition the Office of Fair Trading information to the BPA about parking charges states that these are not automatically recoverable: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists”.
The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkDirectUK notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.
This charge from ParkDirectUK as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

I respectfully request that the appeal be upheld.

Yours Faithfully,

Xxxx

Coupon-mad

You don't need to repeat this bit if this has already been said in your POPLA appeal, no need for this level of detail again:

A witness statement as to the existence of such a contract is not sufficient. I believe there is no contract with the landowner that gives ParkDirectUK the legal standing to levy these charges nor pursue them in the courts in their own name as creditor. This was shown to be the case by District Judge McIlwaine in VCS v Ibbotson, Case No 1SE09849, S!!!!hrope County Court, 16th May 2012 (transcript in the public domain). So as regards the strict requirements regarding the scope and wording of landowner contracts, ParkDirectUK have breached the BPA:CoP section 7 and failed to demonstrate their legal standing, which renders this charge unenforceable. Should a basic contract be produced mentioning parking charge notices, 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 the Operator and the Landowner containing nothing that the Operator can lawfully use in their own name as mere agent that could impact on a third party customer. I therefore respectfully request that my appeal be upheld and the charge dismissed.

Have they sent a witness statement - or absolutely nothing from the landowner at all?

This part of your rebuttal (below) will need a strong re-write in view of POPLA cases being lost as they are swallowing the Beavis case as if it affects all others. YOU MUST CHANGE THIS:

The charge is extravagant, not commercially justifiable and not a genuine pre-estimate of loss
I hereby invite ParkDirectUK to break-down their cost to highlight exactly which losses they have allegedly suffered. There is, in fact, no justification in a £100 or even a £60 charge for the alleged offence.
The Department for Transport guidelines clearly states:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
In addition the Office of Fair Trading information to the BPA about parking charges states that these are not automatically recoverable: ''The OFT expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be used to create a loss where none exists”.
The Office of Fair Trading has stated to the BPA Ltd that a 'parking charge' is not automatically recoverable simply because it is stated to be a parking charge, as it cannot be used to state a loss where none exists. And the BPA Code of Practice states that a charge for breach must wholly represent a genuine pre-estimate of loss flowing from the parking event.
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkDirectUK notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.
This charge from ParkDirectUK as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty. And in my case this was a free car park with no payment due whatsoever.

MAYBE CHANGE IT TO SOMETHING BASED UPON THIS (WITHOUT THE STUFF ABOUT CONES, 'DROP OFF' SIGNS, DARKNESS AND BYELAWS!):

https://forums.moneysavingexpert.com/discussion/comment/70134378#Comment_70134378 (POST #16 is an example rebuttal for a no-stopping zone).

Show us your new version!


And as the car was only there for a minute or three, not parked, you need to disagree about their words about a 'grace period' and rebut this as untrue and not compliant with the BPA CoP rules on Grace periods:

Our ticket attendants are instructed to wait and give a reasonable ‘grace period’ to allow the driver to pull into the site and read our terms and conditions before issuing a ticket to ensure we are fair, reasonable and compliant with the British Parking Association’s Code of Practice. This was done on the date in question, but once the motorist did not use the grace period to read and acknowledge the warning signs, but instead used the site to park their vehicle, the grace period became invalid. This is because at that point, the motorist used the site in breach of the terms of parking.

That bit in bold is balderdash (as my old Dad used to say!). You need to quote the BPA CoP on Grace periods.

elponce28

Have they sent a witness statement - or absolutely nothing from the landowner at all?

No, nothing at all

Coupon-mad

Good! But still re-write a decent rebuttal based on the pointers above, to make sure. Please show us how it looks with the suggested changes.

elponce28

Thanks for you input again, much appreciated. I have now made a few changes based on your comments. Did I get it right? please let me know. Despite this much writing/reading not being my forte, I am doing my best (my head hurts)

Rebuttal of evidence pack received from ParkDirectUK.
[DATE]
I have reviewed ParkDirectUK's response and they have failed in several respects to show this charge was properly given under the circumstances of the case. This is the wrong claimant (not the landowner) aiming an unenforceable penalty for trespass at the wrong person: a registered keeper who cannot be legally liable.
ParkDirectUK has failed to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.
The signage is not visible, clear and unambiguous.
As you can see the following is printed from the sign at the car park provided as evidence in my previous appeal to POPLA “unauthorised vehicles strictly no stopping or waiting” (as precisely stated on the PCN) which contradicts the sign provided as evidence by ParkDirectUK, which display a message “unauthorised vehicles strictly no stopping/waiting or parking”. The evidence provided by ParkDirectUK is clearly not the same sign but a computer copy. There is no clarity to the sign, or indeed attention to detail. I reiterate that this does leave questions in regards to the accuracy of anything else written within the body of the text.
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. ParkDirectUK has also mentioned that there are numerous signs on site which cannot be true; only one sign is displayed at the back of the car park and no signs with warning at the entrance warning drivers of any parking restrictions. No evidence (or effort) by ParkDirectUK has been provided to disprove the facts. The BPA CoP clearly states:
28.2 Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B. The location in question has no signage with full terms which could ever be readable at eye level from a moving vehicle. It clearly (again) breaches BPA CoP 28.2.
In light of this, and in addition to these points, I will reiterate my initial appeal, which ParkDirectUK has failed to adequately address:
There is no notice at the entrance to the car park and the notice that does exist is at the back 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 the firm is called "Park" DirectUK. 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. 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 mentioned above.

The NTK/PCN failed to meet the requirements of POFA to hold the keeper liable.
ParkDirectUK are stating that the Notice to Keeper was fully compliant with POFA 2012 legislation. However this is not the case. They have failed to comply with paragraph 8, section (2)(a) which very clearly states:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Only a time of issue of the ticket is seen on the NtK (as can be seen on the submitted evidence) but not the period of parking, which are very different reqirements, therefore it fails to comply with POFA 2012. It is the law. They have failed to follow this piece of important legislation, resulting in no keeper liability.
Furthermore, the relevant land which the vehicle was “parked” is not the land ParkDirectUK claims to be. The PCN indicates 31-34 Elias Place, SW8-1NS but the car park in question is located at Hanover Gardens as previously stated in my previous POPLA appeal, including google maps for clarification.
So the period of parking and the relevant land is not specified, therefore not compliant with POFA.

The charge is extravagant, not commercially justifiable and not a genuine pre-estimate of loss
I now rebut ParkDirectUK's evidence and take the opportunity to explain my position regarding the non-comparable (but useful in many respects) binding decision in ParkingEye Ltd v Beavis (“the Beavis case”). In the Beavis case, there was common ground between all before the court that the relationship between the parking company and Mr Beavis was contractual.
However, in this particular case, ParkDirectUK's allegation is clearly only related to alleged trespass and not a matter of contract at all. The driver promised nothing which can in law constitute valuable consideration and, for their part, ParkDirectUK provided no contractual offer or consideration, for the simple reason that ParkDirectUK argue that the driver had not been invited/authorised to park under any licence nor right at all.

I refer POPLA to the following extracts from the Supreme Court’s judgement:

Paragraph 97: 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...

Paragraph 107: ...it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.

Paragraph 190: ...Mr Beavis...would have been a trespasser if he overstayed or failed to comply with its other conditions. But ParkingEye was not in possession of the car park, or capable of bringing proceedings in trespass. It had a mere right to control parking at the site - the right to permit or refuse others to park there on such conditions as it might stipulate. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract...

...the question arises whether the Parking Charge is an unenforceable penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis’s promise was the grant of permission to park for up to two hours in its discretion free of charge, on conditions. Each party thus gave the other valuable consideration.''

Furthermore, the Beavis Case concerned allowed parking and it was at a Retail Park and as such, the rationale behind that decision is not relevant here. I refer POPLA to Paragraphs 97 and 98 of the Supreme Court’s judgement:

''The notice at the entrance describes ParkingEye as being engaged to provide a “traffic space maximisation scheme”, which is an exact description of its function. In the agreed Statement of Facts and Issues, the parties state that “the predominant purpose of the parking charge was to deter motorists from overstaying”, and that the landowner’s objectives include the following:

The need to provide parking spaces for their commercial tenants’ prospective customers;
The desirability of that parking being free so as to attract customers;
The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;
The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.''

The case of an unauthorised motorist inadvertently stopping is clearly very different from the Beavis case.

Also, ParkingEye’s success in the Beavis Case was dependent upon there being clear signage. I refer POPLA toParagraph 90 of the Supreme Court’s judgement:

''At all material times since then, ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.''
The Department for Transport guidelines clearly states:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
In addition the Office of Fair Trading ''expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge. It cannot be
This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkDirectUK notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.
This charge from ParkDirectUK as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
I hereby invite ParkDirectUK to break-down their cost to highlight exactly which losses they have allegedly suffered. There is, in fact, no justification in a £100 or even a £60 charge for the alleged offence.

Breaching of BPA Code of Practice
A picture of the vehicle shows it to be on site for no more than three minutes, unless ParkDirectUK can prove otherwise. This shows that a grace period was not allowed and the statement from ParkDirectUK is untrue. As the period of parking is not accounted for by ParkDirectUK (which breaches the BPA CoP 28.4 and is required by POFA), the grace period statement stated in their evidence is untrue.
I therefore respectfully request that my appeal be upheld and the charge dismissed

Yours Faithfully,

Registered Keeper: [NAME]

Coupon-mad

You have got an odd 'it cannot be' in the lines about the OFT. And I would get rid of this under it because it's out of date:

This car park is free and there is no provision for the purchasing of a ticket or any other means for paying for parking. There was no damage nor obstruction caused so there can be no loss arising from the incident. ParkDirectUK notices allege 'breach of terms/failure to comply' and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event.
This charge from ParkDirectUK as a third party business agent is an unenforceable penalty. In Parking Eye v Smith, Manchester County Court December 2011, the judge decided that the only amount the Operator could lawfully claim was the amount that the driver should have paid into the machine. Anything else was deemed a penalty.
I hereby invite ParkDirectUK to break-down their cost to highlight exactly which losses they have allegedly suffered. There is, in fact, no justification in a £100 or even a £60 charge for the alleged offence.

And here I would add the bit in red (but not show it in red in your version of course):

The case of an unauthorised motorist inadvertently stopping - well within prescribed Grace Periods as set out in the BPA Code of Practice, having a few minutes to look out for signs/terms then leaving without accepting any contract - is clearly very different from the Beavis case.

elponce28

Thanks for pointing it out Coupon-mad, it must have happened when copying and pasting while adjusting the sentences. I have removed that part suggested and added the bit you kindly supplied, it makes more sense now, thank you! Is it good to be sent?

Rebuttal of evidence pack received from ParkDirectUK.
[DATE]
I have reviewed ParkDirectUK's response and they have failed in several respects to show this charge was properly given under the circumstances of the case. This is the wrong claimant (not the landowner) aiming an unenforceable penalty for trespass at the wrong person: a registered keeper who cannot be legally liable.
ParkDirectUK has failed to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.

The signage is not visible, clear and unambiguous.
As you can see the following is printed from the sign at the car park provided as evidence in my previous appeal to POPLA “unauthorised vehicles strictly no stopping or waiting” (as precisely stated on the PCN) which contradicts the sign provided as evidence by ParkDirectUK, which display a message “unauthorised vehicles strictly no stopping/waiting or parking”. The evidence provided by ParkDirectUK is clearly not the same sign but a computer copy. There is no clarity to the sign, or indeed attention to detail. I reiterate that this does leave questions in regards to the accuracy of anything else written within the body of the text.
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. ParkDirectUK has also mentioned that there are numerous signs on site which cannot be true; only one sign is displayed at the back of the car park and no signs with warning at the entrance warning drivers of any parking restrictions. No evidence (or effort) by ParkDirectUK has been provided to disprove the facts. The BPA CoP clearly states:
28.2 Entrance signs, located at the entrance to the car park, must tell drivers that the car park is managed and that there are terms and conditions which they must be aware of. Entrance signs must meet minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and follow Department for Transport guidance. Industry-accepted sign designs and guidance on how to use the signs are in Appendix B. The location in question has no signage with full terms which could ever be readable at eye level from a moving vehicle. It clearly (again) breaches BPA CoP 28.2.
In light of this, and in addition to these points, I will reiterate my initial appeal, which ParkDirectUK has failed to adequately address:
There is no notice at the entrance to the car park and the notice that does exist is at the back 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 the firm is called "Park" DirectUK. 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. 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 mentioned above.

The NTK/PCN failed to meet the requirements of POFA to hold the keeper liable.
ParkDirectUK are stating that the Notice to Keeper was fully compliant with POFA 2012 legislation. However this is not the case. They have failed to comply with paragraph 8, section (2)(a) which very clearly states:

“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Only a time of issue of the ticket is seen on the NtK (as can be seen on the submitted evidence) but not the period of parking, which are very different reqirements, therefore it fails to comply with POFA 2012. It is the law. They have failed to follow this piece of important legislation, resulting in no keeper liability.
Furthermore, the relevant land which the vehicle was “parked” is not the land ParkDirectUK claims to be. The PCN indicates 31-34 Elias Place, SW8-1NS but the car park in question is located at Hanover Gardens as previously stated in my previous POPLA appeal, including google maps for clarification.
So the period of parking and the relevant land is not specified, therefore not compliant with POFA.

The charge is extravagant, not commercially justifiable and not a genuine pre-estimate of loss
I now rebut ParkDirectUK's evidence and take the opportunity to explain my position regarding the non-comparable (but useful in many respects) binding decision in ParkingEye Ltd v Beavis (“the Beavis case”). In the Beavis case, there was common ground between all before the court that the relationship between the parking company and Mr Beavis was contractual.
However, in this particular case, ParkDirectUK's allegation is clearly only related to alleged trespass and not a matter of contract at all. The driver promised nothing which can in law constitute valuable consideration and, for their part, ParkDirectUK provided no contractual offer or consideration, for the simple reason that ParkDirectUK argue that the driver had not been invited/authorised to park under any licence nor right at all.

I refer POPLA to the following extracts from the Supreme Court’s judgement:

Paragraph 97: 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...

Paragraph 107: ...it may fairly be said that in the absence of agreement on the charge, Mr Beavis would not have been liable to ParkingEye. He would have been liable to the landowner in tort for trespass, but that liability would have been limited to the occupation value of the parking space.

Paragraph 190: ...Mr Beavis...would have been a trespasser if he overstayed or failed to comply with its other conditions. But ParkingEye was not in possession of the car park, or capable of bringing proceedings in trespass. It had a mere right to control parking at the site - the right to permit or refuse others to park there on such conditions as it might stipulate. By promising ParkingEye not to overstay and to comply with its other conditions, Mr Beavis gave ParkingEye a right, which it would not otherwise have had, to enforce such conditions against him in contract...

...the question arises whether the Parking Charge is an unenforceable penalty. The quid pro quo provided by ParkingEye in return for Mr Beavis’s promise was the grant of permission to park for up to two hours in its discretion free of charge, on conditions. Each party thus gave the other valuable consideration.''

Furthermore, the Beavis Case concerned allowed parking and it was at a Retail Park and as such, the rationale behind that decision is not relevant here. I refer POPLA to Paragraphs 97 and 98 of the Supreme Court’s judgement:

''The notice at the entrance describes ParkingEye as being engaged to provide a “traffic space maximisation scheme”, which is an exact description of its function. In the agreed Statement of Facts and Issues, the parties state that “the predominant purpose of the parking charge was to deter motorists from overstaying”, and that the landowner’s objectives include the following:

The need to provide parking spaces for their commercial tenants’ prospective customers;
The desirability of that parking being free so as to attract customers;
The need to ensure a reasonable turnover of that parking so as to increase the potential number of such customers;
The related need to prevent ‘misuse’ of the parking for purposes unconnected with the tenants’ business, for example by commuters going to work or shoppers going to off-park premises; and
The desirability of running that parking scheme at no cost, or ideally some profit, to themselves.''

The case of an unauthorised motorist inadvertently stopping well within prescribed Grace Periods as set out in the BPA Code of Practice, having a few minutes to look out for signs/terms then leaving without accepting any contract is clearly very different from the Beavis case.

Also, ParkingEye’s success in the Beavis Case was dependent upon there being clear signage. I refer POPLA toParagraph 90 of the Supreme Court’s judgement:

''At all material times since then, ParkingEye has displayed about 20 signs at the entrance to the car park and at frequent intervals throughout it. The signs are large, prominent and legible, so that any reasonable user of the car park would be aware of their existence and nature, and would have a fair opportunity to read them if he or she wished to do so.''
The Department for Transport guidelines clearly states:

"Charges for breaking a parking contract must be reasonable and a genuine pre-estimate of loss. This means charges must compensate the landholder only for the loss they are likely to suffer because the parking contract has been broken. Charges may not be set at higher levels than necessary to recover business losses and the intention should not be to penalise the driver."
In addition the Office of Fair Trading ''expressed the view that a parking charge will not automatically be recoverable, simply because it is stated to be a parking charge.

Breaching of BPA Code of Practice
A picture of the vehicle shows it to be on site for no more than three minutes, unless ParkDirectUK can prove otherwise. This shows that a grace period was not allowed and the statement from ParkDirectUK is untrue. As the period of parking is not accounted for by ParkDirectUK (which breaches the BPA CoP 28.4 and is required by POFA), the grace period statement stated in their evidence is untrue.
I therefore respectfully request that my appeal be upheld and the charge dismissed
Yours Faithfully,
Registered Keeper: [NAME]

elponce28

WE WON!!!!!

Thank you so much!!!!!!

Let me get over the excitement and will post the reply from POPLA