NTK from Parking CSL - POPLA Appeal won

tellytart

Here's my initial draft rebuttal, for comments please.

Rebuttal of Parking Ticketing Limited Evidence

1: With reference to the signage, especially of the photographs of the vehicle taken at night it can be clearly seen that the signs are very poorly lit, and very high up. See Photo F4 in the operators evidence pack.
2: Parking Ticketing Limited have failed to state how the NTK is compliant with POFA 2012. They refer to the signs, which have already been seen to be poorly lit, but the NTK doesn’t carry the necessary wording or information to be able to hold the keeper liable for the parking charge.
3: In reference to the charges, Parking Ticketing Limited have stated that there is a £100 charge, reduced to £60 if paid within 14 days, otherwise they will pass the debt onto a recovery company where extra charges will be added. Notwithstanding that recovery charges may not be added to parking charges, the signage refers to extra charges of £50 being applied, so it is still questionable as to how they arrived at a figure of £120 on the NTK. This alone makes the NTK invalid, and no keeper liability applies.
4: Parking Ticketing Limited make reference to the Parking Eye V Beavis case where the charge was held to be reasonable. However, the judges making that ruling also stipulated that the parking charges were large and clear on the signage. In the case of the Parking Ticketing Limited the charges are fairly small on the sign and are certainly not prominent as was required for Parking Eye to win the above mentioned case. Therefore this ruling cannot be used as a basis to hold this charge as valid.
5: Parking Ticketing Limited have provided a single page from their contract, not a full and unredacted copy of their contract giving them the rights to collect charges. There are also no signatures or dates on this sheet, so therefore should not be permitted to be evidence of a valid contract.

Coupon-mad

I couldn't see the single sheet contract in that Dropbox collection of pics. But I think you have enough to bury them anyway. You may have to email this; don't try to restrict yourself to 2000 characters on the POPLA Portal:




These are NOT new appeal points - this is my rebuttal of PTL's Evidence. I have set out how they have failed to properly respond to all aspects of my appeal.

1: With reference to the signage, especially of the photographs of the vehicle taken at night it can be clearly seen that the signs are not placed under the lighting, one is on a low fence and one under a tree with no ambient lighting. [STRIKE]very poorly lit[/STRIKE][STRIKE], and are very high up.[/STRIKE] See Photo F4 in the operators evidence pack. The charge (illegible in darkness, please bear in mind) appears to be £100 anyway, so the driver cannot have entered into any contract to pay £120. The elements of a contract do not exist so the £120 charge on the NTK was not properly issued.

2: Parking Ticketing Limited have failed to state how the NTK is compliant with POFA 2012. They refer to the signs, which have already been seen to be poorly lit, but the NTK doesn’t carry the necessary wording or information to be able to hold the keeper liable for the parking charge. They have also failed to show the back of the NTK - nor any windscreen PCN at all - and the onus lies with the operator to deal properly with each of my appeal points. They have not responded at all to the points I made about the NTK, so my appeal point about 'no keeper liability' is deemed accepted by this operator because the flaws in the NTK are not rebutted and without a windscreen PCN in the evidence pack, the NTK a month later was served too late for keeper liability. The conditions for keeper liability have not been met from Schedule 4.

3: In reference to the charges, PTL have stated that there is a £100 charge, [STRIKE]reduced to £60 if paid within 14 days,[/STRIKE] otherwise they will pass the debt onto a recovery company where extra charges will be added. Notwithstanding that recovery charges may not be added to parking charges, the signage has an unreadable sentence near the bottom (look at the photo on site, not the library stock picture) which apparently, if it could be read, refers to extra charges of £50 being applied, so it is still questionable as to how they arrived at a figure of £120 on the NTK. This alone makes the NTK invalid, and no keeper liability applies. They call the ordinary NTK (the first a keeper knows about a charge) 'a letter from a debt recovery company' but it was merely the NTK! A standard document. It is their choice that PCS (aka Debt Recovery Plus) handle their DVLA data look-up and NTK issuing back office functions. This is not a debt collector referral stage so they undoubtedly breach the CoP by demanding over £100 at NTK stage without 'justifying this in advance' to the BPA.

4: PTL mislead me and POPLA by saying the charge falls outside the UTCCRs - now within the Consumer Rights Act (CRA) - as it's a 'core price term', when it is nothing of the sort; it is a charge for breach. It is almost comical that PTL say 'the PCN is for 'Damages & Terrorem'(!)' shooting down their own baseless and desperate comparison to the completely different 'complex' contractual arrangement in the ParkingEye v Beavis case. Clearly this small operator has absolutely no idea about the legitimate rationale (not 'in terrorem'!) which MUST be adduced to support parking charges - they cannot just hang on to the coat-tails of ParkingEye when the only similarity between the cases is that the sums were both described as a 'parking charge'.

POPLA cannot make an operator's case for them just because a trader cites the mostly irrelevant case of 'Parking Eye v Beavis', especially about a completely different car park where this operator has made no effort to even vaguely paint a picture of ANY 'legitimate interest' to pursue more than a GPEOL. [STRIKE] They also make reference to the ParkingEye v Beavis case where the charge was held to be reasonable[/STRIKE]. The Beavis case was based upon a 'quid pro quo' commercially justified - IN THAT CASE ONLY - £85 charge to offset a 'valuable licence' offered to drivers to park free for two hours first of all (nothing like this case) and [STRIKE]However,[/STRIKE] the judges [STRIKE]making that ruling[/STRIKE] also found it persuasive and vital in the Beavis case [STRIKE]stipulated[/STRIKE] that the parking charges were large and clear on the signage. In the case of [STRIKE]the[/STRIKE] PTL the charges are fairly small on the sign,show the wrong sum compared to the NTK and are certainly not prominent. [STRIKE]as was required for ParkingEye to win the above mentioned case[/STRIKE]. Therefore this ruling cannot be used as a basis to hold this £120/£100/£60 charge as valid - the Beavis case is NOT a silver bullet to shoot down defences and/or valid POPLA appeals regarding PENALTY (disproportionate and unconsionable) parking charges in other car parks.

5: PTL have provided a single page from their contract, not a full and unredacted copy of their contract giving them the rights to pursue charges in the courts. There are also no signatures or dates on this sheet, so therefore should not be permitted to be evidence of a valid contract.

6. I stated in my appeal that the residents here had had no permits issued in December. I included a copy of the resident's email as a witness statement saying: 'The housing company failed to send myself or the other tenant any permits and I was unaware that the new requirement for needing permits was in effect.' PTL have failed to rebut this so they are deemed to have accepted that residents had no permits. They just admitted in their 'evidence' notes that their new racket here had ony just started that same month and suggested vaguely that the resident had 'plenty of time' to obtain a permit! They've not said how and failed to evidence that any permits had been issued at all by 27.12.15. All they have stated about this is when they started 'patrolling' to victimise residents over Christmas (and of course their employee is certainly NOT a traffic warden) so they have failed to deal with this appeal point too.

No evidence that permits were issued in December = no permit scheme exists, which cannot be founded upon signage alone. Indeed, to rush to start enforcement at a new site before the permits were even issued is sharp practice, unfair under the CRA (which PTL would have it, doesn't apply!) and another CoP breach as well as a misleading business practice under the CPUTRS making this a banned practice and an unenforceable charge.

Coupon-mad

Did they not show any windscreen PCN at all?? Or did you not copy it here?

tellytart

The single sheet of the contract they supplied is called 16 - Evidence B2.pdf in the dropbox folder.

I will amend my rebuttal with your text. Thanks.

tellytart

And no, they didn't show the windscreen PCN, only the screen-grab of their internal website showing the PCN.

The_Deep

Their reference to Beavis v PE is ludicrous, "own space" tickets are worlds apait from parking in a free Colchester retail parrk.

Coupon-mad

OK, seen it now.

I would still say that PCN isn't a copy of the PCN on the windscreen (again, no back page, nothing to show anything about appeals for example). They showed no back of the NTK either, very slapdash.

tellytart wrote: »

And no, they didn't show the windscreen PCN, only the screen-grab of their internal website showing the PCN.

I agree. As above, not a full copy and misleading as the keeper has never seen that, only saw the NTK, so the PCN is missing from the evidence.

tellytart

Here's the new rebuttal text - I think a couple of points got mis-numbered in your amendments, so I've renumbered the text below - unless you intended point 4 to run into the next paragraph?

Rebuttal of Parking Ticketing Limited Evidence

These are NOT new appeal points, this is my rebuttal of PTL's evidence based upon my appeal and how they have failed to properly respond.

1: With reference to the signage, especially of the photographs of the vehicle taken at night it can be clearly seen that the signs are not placed under the lighting, one is on a low fence and one under a tree with no ambient lighting. See Photo F4 in the operators evidence pack. The charge (illegible in darkness, please bear in mind) appears to be £100 anyway, so the driver cannot have entered into any contract to pay £120. The elements of a contract do not exist so the £120 charge on the NTK was not properly issued.
2: Parking Ticketing Limited have failed to state how the NTK is compliant with POFA 2012. They refer to the signs, which have already been seen to be poorly lit, but the NTK doesn’t carry the necessary wording or information to be able to hold the keeper liable for the parking charge. They have also failed to show the back of the PCN and the onus lies with the operator to deal properly with each of my appeal points. They have not responded at all to the points I make about the NTK, so my appeal point about “No Keeper Liability” is deemed accepted by this operator because of the flaws in the NTK are not rebutted.
3: In reference to the charges, PTL have stated that there is a £100 charge, otherwise they will pass the debt onto a recovery company where extra charges will be added. Notwithstanding that recovery charges may not be added to parking charges, the signage has an unreadable sentence near the bottom (look at the photos of the signage on site, not the library stock image) which apparently, if it could be read, refers to extra charges of £50 being applied, so it is still questionable as to how they arrived at a figure of £120 on the NTK. This alone makes the NTK invalid, and no keeper liability applies. They call the ordinary NTK (the first a keeper knows about a charge) “a letter from a debt recovery company” but it was merely the NTK! It I their choice that PCS handle their DVLA data look-up and NTK issue. This is not a debt collector referral stage, so they undoubtedly breach the CoP by demanding over £100 at the NTK stage without “justifying this in advance” to the BPA.
4: PTL misled me and POPLA by saying the charge is a core price term when it is NOT. They say it falls outside the UTCCRs – now within the Consumer Rights Act (CRA) – for that reason of it being a “price term”, when it is nothing of the sort; it is a charge for a breach. It is almost comical that PTL say “the PCN is for ‘Damages & Terrorem’” so clearly this small operator has absolutely no idea about the legitimate rationale (not “in terrorem”!)
5: POPLA cannot make an operator’s case for them just because they cite the mostly irrelevant case of “Parking Eye v Beavis”, especially about a completely different car park where this operator has made no effort to even vaguely paint a picture of ANY “legitimate interest” to pursue more than a GPEOL. The Beavis case was based upon a “quid pro quo” commercially justified – IN THAT CASE ONLY” - £85 charge to offset a “valuable licence” offered to driver to park free for 2 hours first of all (nothing like this case) and, the judges also stipulated that the parking charges were large and clear on the signage. In the case of PTL the charges are fairly small on the sign, show the wrong sum compared to the NTK and are certainly not prominent. Therefore this ruling cannot be used as a basis to hold this £120/£100/£60 charge as valid – the Beavis case is NOT a silver bullet to shoot down defences re parking charges in other car parks.
6: Parking Ticketing Limited have provided a single page from their contract, not a full and unredacted copy of their contract giving them the rights to pursue charges in the courts. There are also no signatures or dates on this sheet, so therefore should not be permitted to be evidence of a valid contract.
7. I stated in my appeal that the residents here had had no permits issued in December. I included a copy of the resident's email as a witness statement saying: 'The housing company failed to send myself or the other tenant any permits and I was unaware that the new requirement for needing permits was in effect.' PTL have failed to rebut this so they are deemed to have accepted that residents had no permits. They just admitted in their 'evidence' notes that their new racket here had ony just started that same month and suggested vaguely that the resident had 'plenty of time' to obtain a permit! They've not said how and failed to evidence that any permits had been issued at all by 27.12.15. All they have stated about this is when they started 'patrolling' to victimise residents over Christmas (and of course their employee is certainly NOT a traffic warden) so they have failed to deal with this appeal point too. No evidence that permits were issued in December = no permit scheme exists and to enforce before the permits were even issued is sharp practice, unfair under the CRA (which PTL would have it doesn't apply!) and another CoP breach as well as a misleading business practice under the CPUTRS making this a banned practice and an unenforceable charge.

tellytart

Coupon-mad wrote: »

OK, seen it now.

I would still say that PCN isn't a copy of the PCN on the windscreen (again, no back page, nothing to show anything about appeals for example). They showed no back of the NTK either, very slapdash.

The copy of the NTK they've added in this pack is actually a grab from the copy of the NTK I submitted in my appeal to POPLA! (I only submitted the front side)

Coupon-mad

I've edited some of it above and your re-numbering makes more sense than my edit!

You will win this one.