PCN and Lease Company

robdl

As always, thanks for everyone's contributions.

My wife has taken a picture of the sign on the entry that you can see from the car. Reads:

Camera Controlled
Automatic Number Plate
Recognition
Maximum stay 1½ hours
Terms and conditions apply
See signage in car park
for full details
Private Land

Managed by Euro Car Parks
On behalf of Fortlands Ltd

The small print is certainly too small to read from car. I've asked my wife to get another picture of the full Ts&Cs, but on the picture they sent in the appeal rejection there was no mention of the actual £ sum that the PCN would be. However it does state "We are using cameras to capture images of the vehicle number plates and to calculate the length of stay."

Does the "On behalf of..." text on the sign void the "no landowner authority" point that @Coupon-mad mentioned?

So the consensus seems to be to leave out the "No GPEOL" and "ANPR" stuff (does the sign cover what @Coupon-mad mentioned including?).

What about "Grace period", is it worth including or do you think it weakens the case?

Sorry for all the questions, seems some cases on this site have used the kitchen sink approach, but happy to concentrate on the strongest point if people think that would be more likely to be successful.

Thanks all.

Coupon-mad

Does the "On behalf of..." text on the sign void the "no landowner authority" point that @Coupon-mad mentioned?

No, it helps that appeal point for you! If ECP are only acting 'on behalf of' the landowner then that indicates their contract may not include the right to sue in their own name. They have no standing. Point that small print out and briefly quote the BPA CoP about landowner contracts but try to minimise the waffle on these added points under Edna Basher's words.

You could have ANPR as a separate brief point but ONLY saying the timing is unreliable and the signs don't warn about how the data captured will be used (ICO and BPA CoP breach).

You need unclear signage as a brief point just saying the charge is not in large lettering and the signs on site are just not well-placed or legible from points within the car park, so a car briefly driving in and out won't necessarily have passed a readable sign with full terms nor with the 'charge' in large prominent letters.

I agree that Grace periods x 2 - quoted from the BPA CoP - should be included in another brief point, as Fruitcake said:

Grace period is very relevant. The BPA CoP states there should be a grace period (of unspecified length) before parking, and a minimum of eleven minutes after the parking period has ended.

robdl

Hi all,

Here is my first draft, I'd appreciate any feedback (this first point is directly what Edna Basher posted - thanks again!).

I dropped the ANPR point as the sign does state (albeit in text too small to read from the car)

We are using cameras to capture images of the vehicle number plates and to calculate the length of stay.

But let me know if anyone thinks it is still worth including. Thanks all as always.

I write to lodge my formal submission for Alternative Dispute Resolution of my dispute with Euro Car Parks Limited (“ECP”) regarding the above-detailed Parking Charge Notice (“PCN”) dated 29th January 2016 in respect of an alleged breach of parking terms and conditions at Church Farm, Warrington on 31st December 2015. The vehicle in question is on long-term lease to me and I confirm that I am the vehicle’s hirer and keeper for the purpose of the corresponding definitions under Schedule 4 of the Protection of Freedoms Act 2012 (“POFA”).

I set out below why I am not liable for this parking charge:

1. ECP failed to deliver a Notice to Hirer that was fully compliant with the requirements of POFA and consequently it has forfeited its right under POFA to hold the hirer liable for the charge
2. BPA CoP: Grace Period. The BPA CoP states there should be a grace period (of unspecified length) before parking, and a minimum of 10 minutes after the parking period has ended
3. No landowner authority
4. Unclear signage

1. ECP’s failed to meet the strict requirements of Schedule 4 POFA

In order to rely upon POFA to be able to hold the hirer liable, ECP had to deliver a Notice to Hirer that fully met all of POFA’s strict requirements. I set out below the reasons why ECP failed to do so.

ECP’s Parking Charge Notice (“PCN”) stated that either a) I was the registered keeper of this vehicle on 31st December 2015 or b) I had been named by the registered keeper as the driver when there was a breach of terms and conditions of parking.

Neither of these statements was true because a) the vehicle’s registered keeper is the lease company, ALD Automotive and b) the registered keeper had provided ECP with my details as the vehicle’s hirer, not driver.

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(1) of Schedule 4 of POFA specifies that if (a) the creditor is by virtue of Paragraph 13(2) unable to exercise the right to recover from the keeper any unpaid parking charges mentioned in the notice to keeper, and (b) the conditions mentioned in Paragraph 14(2) below are met, the creditor may recover those charges (so far as they remain unpaid) from the hirer.

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)). Notwithstanding its failure to deliver a Notice to Hirer, ECP did not provide me with copies of any of these documents.

Paragraph 14(5)(b) specifies that the Notice to Hirer must refer the hirer to the information contained in the Notice to Keeper. ECP’s PCN makes no reference to the Notice to Keeper, let alone referring the hirer to the information contained in the Notice to Keeper. This is a fundamental omission, especially given that ECP did not provide me with a copy of the Notice to Keeper as required under Paragraph 14(2)(a). Consequently, ECP failed to provide me with much of the information required to be included in the Notice to Keeper under Paragraph 9 (2).

Furthermore, ECP failed to comply with the requirements of Paragraph 14(5) including:

Contrary to the requirements of Paragraph 14(5)(a), ECP’s PCN did not inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the Notice to Keeper) may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), ECP’s PCN did not refer the hirer to the information contained in the Notice to Keeper (indeed, the PCN does not even refer to the Notice to Keeper);
Contrary to the requirements of Paragraph 14(5)(c) ECP’s PCN did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.
Contrary to the requirements of Paragraph 14(5)(e) ECP’s PCN did not identify the creditor.

Given its failure to deliver a compliant Notice to Hirer, ECP’s claim must be determined as being invalid

2. Lack of grace period

The BPA Approved Operator Scheme Code of Practice Version 6, Oct 2015, states that there are two mandatory grace periods.

Prior to parking:
13.2 You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission you should still allow them a grace period to read your signs and leave before you take enforcement action.

Upon returning to the vehicle:
13.4 You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.

The first/arrival grace period is undefined in the CoP but without intellectual dishonesty it must, on its own, surely be reasonable to construe this should be another ten minutes at least, since the BPA believes that the far shorter/easier journey of just getting into the car and leaving, should reasonably be allowed 'a minimum of 10 minutes'.

ECP alleges the “vehicle exceeded the maximum parking time permitted [...] by 11 minutes”. Therefore, taking the above into account, It would be perfectly reasonable and logical to expect this to be within the grace period in order for the driver to drive in, wait/queue and look for a space on site, park, lock the car then get out and go and read the signs and make a decision whether to stay.

3. No landowner authority

The on-site signage states in small text (illegible from a vehicle driving in/out of the site) that ECP are acting "on behalf of'" “Fortlands Ltd” (presumably the landowner); this indicates their contract may not include the right to sue in their own name.

4. Unclear signage

The signs on site are not well-placed or legible from points within the car park, so a car driving in and out won't necessarily have passed a readable sign with full terms nor with the 'charge' in large prominent letters. In particular the £90 sum of the charge is not clear/legible in large lettering on the signs.

Coupon-mad

Yes I would still include the ANPR point if it's not legible from a car and isn't made clear at the entrance in large lettering.

So I would add a bit to #3 and #4 although trying hard not to make this too long:


3. No landowner authority

The on-site signage states in small text (illegible from a vehicle driving in/out of the site) that ECP are acting 'on behalf of' “Fortlands Ltd” (presumably the landowner); this specific wording indicates the operator has no right to sue in their own name. Under the law of agency, a contract to be made by an agent 'on behalf of' a disclosed principal is considered to be the contract of that named principal, the latter retaining control/liability. Euro Car Parks are not a party to the alleged contract formed between a driver and principal (landowner) and they cannot enforce it in their own name.

I put the operator to strict proof of their landowner contract, including proof that they have the right in their name, to 'enforce charges in the courts if necessary'. Anything less is not only a breach of the BPA CoP but renders the parking firm with no standing, with no more powers than any other standard contractor (e.g. a cleaning firm) over visitors to the land.



4. Unclear signage

The signs on site are not well-placed or legible from points within the car park, so it is likely a car driving in and out will not have have passed a readable sign with full terms nor with the 'charge' in large font. This renders this site non-comparable with the car park in ParkingEye v Beavis and is evidence that no contract was formed at all.

In particular the £90 sum of the charge is not clear/legible in 'large lettering' on the signs. This contravenes Schedule 4 of the POFA which requires 'adequate notice of the charge' as a matter of statute.

This case is not like the Beavis case in terms of the signs, the agent/principal interests and lack of commercial justification so that case is not an authority upon which this operator can rely.

It is far more comparable to VINE -V- LONDON BOROUGH OF WALTHAM FOREST; CA 5 APR 2000

http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html

No terms capable of being seen and read = no contract formed, as was found in Vine at 40:

''Mrs Vine did not see the sign...that is sufficient for her to succeed on the facts of this case. I would also find, if it were necessary to the decision, that the sign in this case was not sufficiently prominently and clearly positioned and displayed to sustain any contention that she consented to, or willingly assumed, the risk...It was not intrinsically obvious, apart from signs, that the area where Mrs Vine parked was private property. [...] The sign, which Roch L.J. has described, was...not on the occasion in question visible from the driver's seat of Mrs Vine's car when she parked it.''

This is binding case law; a Court of Appeal decision far more applicable than the irrelevant 'Beavis case' in a situation where a car was only very briefly on site and the driver had no fair opportunity to learn of terms by which they would be bound. In the matrial case, Euro Car Parks have not shown any evidence that the car actually parked nor that the driver 'stayed' (clearly they did not) so it is argued that the terms were neither communicated nor breached. It is also impossible to read from a car before parking, any small print about how the data captured by ANPR cameras will be used so a driver has no idea they are being timed before the car is even parked for any 'stay' and certainly did not consent to pay £90 for a few minutes driving in and out.

Edna_Basher

Hi robdl

I've posted onto the POPLA Decisions Sticky Thread the details of our most recent POPLA success against ECP.

http://forums.moneysavingexpert.com/showpost.php?p=70339508&postcount=2035

Feel free to cross reference this in your Point 1 about ECP's non-compliant Notice to Hirer.

robdl

Thanks Coupon-mad, so do you think I should include all your text after the below all the way till the end of you post?

So I would add a bit to #3 and #4 although trying hard not to make this too long:

Edna Basher, big thanks to you too. When you say cross reference, do you mean actually reference the specific POPLA reference, our use some of the language from the assessor's decision?

Thanks again.

Edna_Basher

I think all you need to do is highlight to your assessor that POPLA has already determined that ECP's Notices to Hirer don't comply with POFA, and quote the "successful" POPLA Code.

This will make your assessor's job very easy in allowing your appeal.

Coupon-mad

Edna_Basher wrote: »

I think all you need to do is highlight to your assessor that POPLA has already determined that ECP's Notices to Hirer don't comply with POFA, and quote the "successful" POPLA Code.

This will make your assessor's job very easy in allowing your appeal.

You could do the above.

I tend to throw the kitchen sink at POPLA appeals just because that's what has worked for me - but in this case you do have a slam-dunk winning point so you could bite the bullet and just go for the single point appeal, quoting the recent successful POPLA code.

Edna_Basher

Hi C-M

I wasn’t suggesting that robdl’s appeal should be cut back to this single point - I was just picking up on robdl's cross-referencing question and my mention of the recent POPLA decision was just so that it could be added into the existing appeal to make the assessor's job easier.

I know that following a number of recent “questionable” decisions by POPLA some folk have been advocating that, in order to avoid POPLA assessors becoming confused by peripheral arguments, POPLA appeals should be scaled back (possibly even to a single point).

However, in my view, the three core points of non-compliance with POFA, inadequate signage and no landowner authority should be included in every POPLA appeal, with other winning points (e.g. grace period) being added where relevant.

For less clear-cut cases, I’m still in the “kitchen sink” camp (so long as each appeal point is clearly ordered and separated).

Coupon-mad

However, in my view, the three core points of non-compliance with POFA, inadequate signage and no landowner authority should be included in every POPLA appeal, with other winning points (e.g. grace period) being added where relevant.

For less clear-cut cases, I’m still in the “kitchen sink” camp (so long as each appeal point is clearly ordered and separated).

That's my view too, as long as the points are clearly set out and separated with numbering.