POPLA stage - Britannia Parking PCN

YJ68

Hi guys,

I would really appreciate some guidance before I put a draft letter together to POPLA.

Background information:

I disputed a Parking Charge Notice with Britannia Parking, which they rejected. They have provided a POPLA code.

I mistakenly included phrases in my correspondence with them that I was the driver (I know, I know…. ☹ )

What I would like to know is how I should proceed with my appeal now? If they know I am the driver is it too late to quote any of the rules in POFA 2012 schedule 4?

Below is some more background info, which may highlight some possible disputes on the timing of their letters. Not sure if I can quote any of these in my appeal.

I understand I have until 15th February to send my appeal to POPLA (28 days from date of their rejection letter, 18/1/16).

I thank you in advance for any guidance and advice.


14/11/15 – Alleged contravention date.
Place: Chelmsford Army & Navy car park (ANPR)

Sequence of events:

23/12/15
First correspondence regarding above received from Britannia Parking. Correspondence received headed “Parking Charge Notice - Final Reminder”, dated 18/12/15. Amount £85. No other details informing me what the contravention was etc.

29/12/15
Posted a response to Britannia Parking pointing out I have not had any previous correspondence from them. Unfortunately, I mentioned in the letter ‘I had purchased a ticket’ from the pay and display machine so this has now told them that I was the driver.
Query: Now that I have admitted to being the driver, how should I appeal to POPLA? (Britannia rejected my appeal).

I asked for photographic evidence to prove that I did not purchase and display a valid ticket.

Note: My letter was headed “Without Prejudice”

20/1/16
Received a response from Britannia (letter dated 18/1/16). They say they have considered my appeal and my vehicle was parked “in breach of the Terms and Conditions of the car park”.

They say they checked their machines and my ticket expired at 21:40 and that my vehicle was recorded leaving the car park at 22:02 which is an overstay of 22 minutes.
Query: Can I ask them for evidence of ticket expiry time?
Can I also ask for what their grace time for exiting the car park is? I know the minimum is 10 minutes (according to BPA’s Code of Practice).

They then offer to reduce the payment to £25 if paid within 14 days of the date of their letter.

They also attached a copy of the original Parking Charge Notice (which I did not receive prior to the final notice).

They then give me my options and a POPLA code if I want to appeal within 28 days from the date of their letter.

Notes about the original Parking Charge Notice

Dated 3rd December (which I understand they should have issued by 29th November, in order to comply with POFA 2012 schedule 4).

Parking Charge of £85 to be paid within 28 days of issue of this notice, or £50 if paid within 14 days. After 29 days, full amount is due.
Query: Should they not have waited 28 days before issuing a final reminder on 18th December?

Alleged contravention: failed to make a valid payment.
Entry details 19:29:52 14/11/15 Exit details: 22:02:25 14/11/15

The notice informs me that the car park is private land operated by Britannia Parking (the creditor). Query: Should they tell me who the land is owned by and if they have their permission from the land owner to issue car parking charges? Can I ask for this information? Or is there a site I can go to in order to check this myself?

21/1/16
I wrote back to Britannia in response to their rejection letter (again headed Without Prejudice)

One of the things I disputed is their photographic evidence (as I have no way of knowing if their clock was legally calibrated).

Unfortunately, this letter also mentions that I was the driver

2/2/16
Received a letter from Debt Recovery Plus Ltd dated 28/1/16 demanding £160 for an unpaid parking charge.

They refer me to the back of their letter for more information regarding liability for this charge – where they refer to POFA 2012 schedule 4.

They said if I don’t pay by 11/2/16 then they will recommend to the creditor that court action should be taken to recover what I owe.
Query: As appeal was rejected by Britannia, should they not have allowed at least 35 days from date of rejection (18/1/16) before they pursued collection? Debt Recovery Plus’ letter is dated 28/1/16

YJ68

I have just spent a couple of hours looking through the Newbies thread and some of the good example letters posted with links for Newbies to read through (was very impressed with PTJBS05's efforts - so glad her appeal was successful!)

There are some very good points in these links and I am hoping to start to put an appeal letter together to POPLA throughout this weekend.

My main worry is that because I have already mentioned that I was the driver in my appeal letter to Britannia, I don't really know what points I should use in my appeal to POPLA. I have tried researching the forums for any similar cases but haven't found anything so far. I will try again tomorrow as I am far too tired now.

I read through the BPA Code of Practice on my journey to work this morning to familiarise myself with what Britannia should be adhering to as one of their members.

I have also read through the POFA 2012 schedule 4 paragraphs 8 & 9 - but I'm not sure if I can use any of this info if I have given away that I was the driver.

Any initial guidance would be very welcome.

Coupon-mad

If they know I am the driver is it too late to quote any of the rules in POFA 2012 schedule 4?

Yes unfortunately that entire Act is out of the window for you. But, don't worry about having named the driver, too late to reverse that now. We have other ways of winning at POPLA and this is 'only' Britannia. Easy to beat.

What I would like to know is how I should proceed with my appeal now?

We'll assist over the weekend, particularly if you can show us a draft POPLA appeal based on others you find here and the most recent post-Beavis ones in the NEWBIES thread post #3. Anything you can cobble together with lots of other points cribbed from POPLA examples, will help us to help you.

YJ68

Thank you so much Coupon-Mad for replying - I notice it was quite late too! You have put my mind at ease saying Britannia is easy to beat and that there are other ways of winning at POPLA. I feel so much better now!

I will get on and put a draft together.

Umkomaas

Note: My letter was headed “Without Prejudice”

I wrote back to Britannia in response to their rejection letter (again headed Without Prejudice)

What point are you trying to make by quoting 'Without Prejudice' in your letters to them?

YJ68

Firstly, in answer to Umkomaas’ question about what point I am trying to make by quoting ‘Without Prejudice’ on my previous letters – I’m not sure is the honest answer! I was following the advice from a friend......

So, I’ve now had a go at putting together the points I want to include in the letter to POPLA.

I need to do a bit more research on the Beavis v ParkingEye case and maybe include more relevant points but I thought I’d post what I have put together so far for your comments.

Again, thank you in advance for your assistance.



No Breach of Contract

Britannia Parking are claiming that their records show the notice was correctly issued as my vehicle was parked “in breach of the Terms and Conditions of the Car Park”. They do not explain which terms exactly were breached other than to say there was an overstay of 22 minutes which they base on the time their ANPR system recorded my vehicle leaving the car park.

The signs do not state that the parking contract begins and ends based on the time you enter and leave the car park. As there is a Pay and Display system in operation, the motorist would rightly interpret that the start of the contract begins from the time you buy your ticket and the end of the contract expires depending on the length of time you purchased the ticket for (i.e. 2 hours, 3 hours, etc).

Under the principle of contra proferentem an ambiguous contractual term must be read in a manner most favourable to the motorist . In this situation the word "stay" is ambiguous as the operator is relying on this ending at a time which was not brought to the notice of the driver and is clearly open to a different interpretation.

I therefore contend that the contravention did not occur and there was no breach of contract.

The ANPR system is unreliable and inaccurate

Britannia Parking’s evidence shows no parking time, merely photos of a car driving in and out. It is unreasonable for this operator to record the start of 'parking time' as the moment of arrival in moving traffic if they in fact offer a pay and display system which the driver can only access after parking and which is when the clock in fact starts. The exit photo is not evidence of 'parking time' at all and has not been shown to be synchronized to the pay and display machine clock nor even to relate to the same parking event.

Britannia Parking is obliged to ensure their ANPR equipment is maintained as described in the BPA Code of Practice that states under paragraph 21.3, parking companies are required to ensure ANPR equipment is maintained and is in correct working order. I question the entire reliability of the system and require Britannia Parking to provide records with dates and times of when the equipment was checked, calibrated, maintained and synchronised with the timer which stamps the photo to ensure the accuracy of the ANPR images. This is important because the entirety of the charge is founded on two images purporting to show my vehicle entering and exiting at specific times. It is vital that this Operator must produce evidence in response and explain to POPLA how their system differs (if at all) from the flawed ANPR system which was wholly responsible for the court loss in the case of Parking Eye v Fox-Jones on 8 Nov 2013. That case was dismissed when the judge said the evidence from Parking Eye was fundamentally flawed because the synchronisation of the camera pictures with the timer had been called into question and the operator could not rebut the point.

British Parking Association – Code of Practice: Grace Period

As a member of the BPA, Britannia Parking would be subject to their Code of Practice which states in Section 13:

13.1 Your approach to parking management must allow a driver who enters your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.

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.

13.3 You should be prepared to tell us the specific grace period at a site if our compliance team or our agents ask what it is.

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.

Britannia Parking are claiming that the 2 hour ticket purchased for my vehicle expired at 21:40 and that as my vehicle was recorded leaving the car park at 22:02 then this works out to a 22 minute overstay. Firstly, no evidence was included to support their claim of the ticket expiry time, and secondly BPA’s CoP states that grace period at the end of the parking period should be a minimum of 10 minutes. This implies that it may take longer than 10 minutes to exit the car park but this does not amount to an overstay on the period of time on the ticket purchased.

Therefore, I believe that Britannia Parking are in breach of the BPA Code of Practice and are therefore unjustified in issuing the PCN.

No Authority

Britannia Parking do not own this car park and are assumed to be merely agents for the owner or legal occupier. In their Notice and in the rejection letters, Britannia Parking have not provided me with any evidence that it is lawfully entitled to demand money from a driver or keeper, issue Parking Charge Notices and take legal action in their name for breach of contract since they do not own nor have any interest or assignment of title of the land in question.

Breach of British Parking Association’s Code of Practice

British Parking Association Code of Practice states:

22.12 If you reject an appeal you must:

• give the motorist a reasonable amount of time to pay the charge before restarting the collection process. We recommend that you allow at least 35 days from the date you rejected the challenge.

Britannia Parking’s rejection letter is dated 18th January 2016. According to the CoP Britannia should have allowed a 35 day period to pass before restarting the collection process. However, a letter received from Debt Recovery Limited demanding payment is dated 28th January 2016 – only 10 days from date of the rejection letter. This clearly breaches the rules of the Code of Practice that Britannia are to adhere to.

Ambiguous signage

The signage is ambiguous and unclear because the entire sign is about 'PARKING TARIFFS' (not 'total stay') and the sign creates no obligations except that charges apply to Blue Badge Holders and to:

- Enter your full vehicle registration correctly

- Purchase a valid ticket or permit

- Make correct payment

- Avoid parking in non-parking restricted area or access way

As the Pay & Display machine is the 'point of sale' and the Pay & Display ticket is the receipt upon which an ordinary consumer would rely for the parking time, there was no contravention of the sign.

It is wholly deceptive and unfair on drivers to impose a different time limit from cameras, than the time limit set on the Pay and Display ticket. Deceptive information which causes a consumer to take a different decision than they would have done, which then causes them detriment, is unlawful under the 'misleading actions' section (7.3) of the Consumer Protection from Unfair Trading Regulations.

In addition, having two timings running makes you conclude that Pay & Display machines are incompatible with ANPR camera systems and the entire scenario is obviously unfair under the Unfair Terms in Consumer Contractions Regulations.

No genuine pre-estimate of loss

This car park is Pay and Display and payment of £1.50 was made for a stay of 2 hours. If, as Britannia Parking claims, there was an overstay of 22 minutes, then in accordance with their signage a stay of up to 4 hours would have cost £3.90. Therefore, the recoverable sum of the alleged ‘outstanding’ parking charge would equal to £3.90 at the most.

The Operator cannot reasonably claim a broad percentage of their entire business running costs, as they operate various different arrangements, some where they pay a landowner a huge amount akin to a 'fishing licence' to catch motorists and some where they have pay and display, and others which are free car parks. I suggest there was never any advance meeting held with the client, nor was any due regard paid to establishing any 'genuine pre-estimate of loss' prior to setting the parking charges at this site. I put this operator to strict proof to the contrary and to explain how the calculation happens to be the same whether the alleged overstay is 20 minutes or 20 hours.

The Operator alleges 'breach of terms’ and as such, the landowner/occupier (not their agent) can only pursue liquidated damages directly flowing from the parking event. This must amount in its entirety, only to a genuine pre-estimate of loss, not some subsequently penned 'commercial justification' statement they have devised afterwards, since this would not be a pre-estimate.

In this case, even if the Operator contends there was a small outstanding Pay & Display sum (which they have missed off the Notice to Keeper, so I have no idea) they certainly cannot claim an inflated amount. A GPEOL calculation must be a sum which might reasonably flow directly as a result of a parking event.

An Operator cannot include 'staff time spent on appeals' and other tax deductible business costs such as administration, accounting & equipment. Appeals staff are already paid to do their admin job which includes handling appeals among other tasks, so there is no question that there is any 'loss' caused by these staff who are not 'significantly diverted' from their normal activity when they deal with challenges or POPLA stage.

Judge Charles Harris QC in 'A Retailer v Ms B' (where the Claimant tried to claim a 'loss' from a consumer for 'staff and/or management time investigating') stated:

"[14] The claimant in the instant case has not established either that the staff in question were significantly diverted from their usual activities or that there was any significant disruption to its business... Nor was there any loss of revenue generation.

[15] The two security people, far from being diverted from their usual activities, were in fact actively engaged in them. They were doing just what the claimants paid for them to do...

[16] So the claim in respect of staff time cannot, in my judgment, be established. I was not clear if, at the end of the case, the other two alleged heads of loss – administrative costs and security equipment costs – were still being sought. But, if so, these claims too cannot succeed. Neither can be shown to be attributable to the defendants’ activities. The amounts spent by the claimant would have been identical had the defendants stayed at home...

[17] It follows that the claims must be dismissed’’

NOTE: I'M NOT ALLOWED TO POST A LINK BUT I WILL AMEND IN MY LETTER TO CORRECT FORMAT. XXXX://xxx.farrarsbuilding.co.uk/cms/uploads/A-Retailer-v-B-K_001.pdf

In the case of private parking charges in general - including this Operator - the administrative staff and Managers who handle challenges and POPLA appeals are not 'significantly diverted from their usual activities', nor do appeals cause any 'significant disruption to its business', nor was there any significant loss of revenue generation. So none of the 'staff time' can be properly included in a GPEOL calculation. If POPLA do accept a small amount of staff time in a GPEOL sum then this could only be 1% of the typical time taken for POPLA appeals, because only 1% of cases follow the POPLA route. No higher figure can have been in the reasonable contemplation of the Operator at the time of the parking event because the chances of POPLA are even less than 'debt collector stage' both being far too remote to be likely.


Beavis V ParkingEye not relevant in this case

(I HAVEN’T FINISHED RESEARCHING THIS CASE YET – WILL PUT MORE TOGETHER ON IT LATER)


The letter I received from Debt Recovery Plus Ltd refers to a landmark court decision made on 4th November 2015 “in favour of a parking operator who took a motorist to court for non payment of a parking charge”. They provide a link at where more information can be found. The case referred to is that of Beavis v Parking Eye.

However, there are sufficient differences between this incident and the case referred to above and so that case cannot be taken as a precedent. In the Beavis v PE the car park was a free car park with a limited time and ParkingEye were paying the landowner for the use of the site. In this case the time is not limited and paid for and as far as I know, the operator does not pay the landowner.

Guys_Dad

"The signs do not state that the parking contract begins and ends based on the time you enter and leave the car park. As there is a Pay and Display system in operation, the motorist would rightly interpret that the start of the contract begins from the time you buy your ticket and the end of the contract expires depending on the length of time you purchased the ticket for (i.e. 2 hours, 3 hours, etc)."
You are writing this from a base of honesty. However, suppose I entered a P&D governed by ANPR at 10.00, parked but didn't buy a ticket till 11.00 and left at 12.40 having only paid for 2 hours?

You should just tweak the above paragraph to incorporate some sort of relationship to entry and paying to stop the argument being blown out of the water.

YJ68

Ah yes Guys Dad, I see your point. Okay, I'm not sure if I'm on the right track here but I have re-twigged the No Breach of Conduct section. Please let me know if I have understood your comments correctly and if this sounds better:


No Breach of Contract

Britannia Parking are claiming that their records show the notice was correctly issued as my vehicle was parked “in breach of the Terms and Conditions of the Car Park”. They do not explain which terms exactly were breached other than to say there was an overstay of 22 minutes which they base on the time their ANPR system recorded my vehicle leaving the car park.

The signs do not state that the parking contract begins and ends based on the time you enter and leave the car park. As there is a Pay and Display system in operation, the motorist would rightly interpret that the start of the contract begins from the time you buy your ticket.

According to Paragraph 13.2 of the British Parking Association’s CoP a reasonable ‘grace period’ is to be allowed in which the driver can decide if they are going to stay or leave. They should also be allowed a grace period to read the signs and leave before taking enforcement action.

According to Paragraph 13.4 of the CoP a reasonable grace period should also be allowed for a vehicle to leave the private car park after the parking contract has ended before enforcement action is taken, a minimum of 10 minutes.

Under the principle of contra proferentem an ambiguous contractual term must be read in a manner most favourable to the motorist. In this situation the word "stay" is ambiguous as the operator is relying on this ending at a time which was not brought to the notice of the driver and is clearly open to a different interpretation.

I therefore contend that the contravention did not occur and there was no breach of contract.

Coupon-mad

I think I would move 'No Authority' up to the top and then group the BPA CoP breaches together, so have them listed like this:

British Parking Association – breach of the Code of Practice: Grace Period

followed by:

British Parking Association – breach of the Code of Practice: unclear signs

followed by:

British Parking Association – breach of the Code of Practice: referred to debt collectors during the POPLA appeal window


(the above are only in red to show that the title should include the words 'breach of the'...I don't mean you should have that in red).

YJ68

Thanks Coupon-mad. I have moved things around as you suggest. Should I mention Section 18 of the CoP in the paragraph about unclear signs? I was thinking starting off that paragraph with the following sentance:

Paragraph 18.3 of the CoP states that “signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”.

Coupon-mad

Yep cite the CoP as much as possible, and also state that the 'ParkingEye v Beavis' findings about the CHARGE as displayed on the signs in that car park, convinced the SC Judges that a contract was formed to pay £85 so quote them and show the difference (and use Britannia's own evidence to further your signage point later on, if they contest the appeal they'll have to show the signage and a view of the car park):

Lord Neuberger: ’' The charge is prominently displayed in large letters at the entrance to the car park and at frequent intervals within it.’’ '’ 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.’’

Lord Mance at 123: ’'The signs exhibited at the entrance and throughout the car park are large, prominent and legible. '’

Lord Hodge at 287: ’'...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.’’


It's not just about how many signs, it's how clearly and in-your-face was the crucial information about the 'penalty' charge itself displayed, particularly at the entrance and P&D machine and near where the car was parked. Often there are signs but the charge is hidden in small lettering among fussy wording - not like in the Beavis decision.

I've been in Britannia run car parks and the lack of signs in large areas is really obvious if you are looking for them, as people like us do every time...and of course your car WAS parked in just such an unsigned area, wasn't it? Tell POPLA in clear words.