NTK from Parking CSL - POPLA Appeal won

Coupon-mad

tellytart wrote: »

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)

Oooh, I would say that too!

tellytart

With regards to this:

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.

Do I leave it in? A windscreen PCN was served (though I don't have a copy of it - it was retained by the resident to attempt to get the management agent to withdraw the charge)

tellytart

I know you've used PTL as an abbreviation in the above texts, is it OK for me to abbreviate it in the rebuttal, or should I write all the names out in full each time?

Also, I may amend part of the text in point 1 to read:
See the photograph of the vehicle in the operator’s evidence pack where the sign is barely lit and almost unnoticeable

as I can't guarantee which photo the operator's "Photo F4" refers to as they're unlabelled in the pack, I was only assuming the one where you can (barely) see one of the signs was F4.

tellytart

Notwithstanding my question about abbreviations, the question about PCN in para 2 and the amendment of para 1, here's the rebuttal. I think it's complete - and comes to 1173 words.

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 the photograph of the vehicle in the operator’s evidence pack where the sign is barely lit and almost unnoticeable. 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 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, 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, 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 (aka Debt Recovery Plus) 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 mislead me and POPLA by saying the charge 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’(!)” 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.
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 and/or valid POPLA appeals regarding PENALTY (disproportionate and unconscionable) parking charges in other car parks.
6: Parking Ticketing Limited have provided a single page from their contract, not a full and un-redacted 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 only 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 supply 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.
8. PTL have provided no evidence that permits were issued in December, ergo no permit scheme can exist without issued permits, and for enforcement to happen 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.
9. It is also noticed that the NTK PTL have submitted in this evidence pack is actually just a grab of the image of NTK document I submitted in the initial POPLA appeal stage. PTL have failed to show evidence that this NTK is valid, and have failed to present the front and rear of the NTK. It can further be seen that no extant copy of the PCN (front and reverse) has been submitted by PTL as evidence that the PCN was correctly issued – a screen-grab from their internal website showing a PCN issued is not sufficient evidence to show that the PCN was correctly issued.

Coupon-mad

I was abbreviating PTL to reduce the blurb & make it easier for POPLA to read (an attempt to be a little less wordy, something I find difficult as a chatty woman who likes writing stuff denouncing this sort of scam!). You need line spaces between each numbered point I would say which might take it over 2000 words - or is it 2000 characters including spaces on the Portal? I can't recall, it's TINY!

I suspect you will end up emailing that as a PDF but it is fine if spaced out a little more. Like I say, you will win, POPLA can choose which point they uphold because you have more than one strong one.

tellytart

Thanks, it's spaced a little better in the word document - it's a 2000 character limit on the website, so I'll e-mail it as a PDF.

Do I just email it to info@popla.co.uk with the POPLA PTL number in the subject?

Coupon-mad

Yes email it there, back to POPLA with the 10 digit POPLA code in the subject line and 'appellant's comments about the evidence pack'. Attach the PDF and put a few lines asking POPLA to please add your comments to the case file and can they please confirm that this has been done.

tellytart

Thanks, 'tis done.

Will wait to see the result. I'll check the POPLA tracking over the next couple of days to ensure it's added to the case and progressed to the assessment phase.

Should I post a final copy of the rebuttal on here now, for future reference for others?

Coupon-mad

Yes, it would help others, thanks. Also saves us typing the same thing again and again, if we can signpost people to existing threads.

tellytart

For completeness, here is a link to the evidence pack with identifying information redacted, and then the rebuttal below it, formatted a little more nicely for the forum. Will update the thread when I hear the outcome.

https://www.dropbox.com/sh/u3hko4wgbkp058x/AAA1k55qtyyXG4Yiv8yP53uVa?dl=0

Rebuttal of Parking Ticketing Limited Evidence

These are NOT new appeal points, this is my rebuttal of Parking Ticketing Limited'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 the photograph of the vehicle in the operator’s evidence pack where the sign is barely lit and almost unnoticeable. 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 Notice To Keeper (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 Parking Charge Notice (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 make 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, Parking Ticketing Limited 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! 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 the NTK stage without “justifying this in advance” to the BPA.

4: Parking Ticketing Limited mislead me and POPLA by saying the charge falls outside the Unfair Terms in Consumer Contracts Regulations – 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 a breach. It is almost comical that Parking Ticketing Limited 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”.

5: 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. 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 2 hours first of all (nothing like this case) and the judges also found it persuasive and vital in the Beavis case that the parking charges were large and clear on the signage. In the case of Parking Ticketing Limited 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 and/or valid POPLA appeals regarding PENALTY (disproportionate and unconscionable) parking charges in other car parks.

6: Parking Ticketing Limited have provided a single page from their contract, not a full and un-redacted 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.' Parking Ticketing Limited 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 only 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 supply evidence that any permits had been issued at all by 27 December 2015. 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, in a rush to start enforcement at a new site before the permits were even issued is sharp practice, unfair under the CRA (which Parking Ticketing Limited would have it, doesn't apply!) and another CoP breach as well as a misleading business practice under the Consumer Protection from Unfair Trading Regulations 2008 making this a banned practice and an unenforceable charge.

8. It is also noticed that the NTK Parking Ticketing Limited have submitted in this evidence pack is actually just a grab of the image of NTK document I submitted in the initial POPLA appeal stage. Parking Ticketing Limited have failed to show evidence that this NTK is valid, and have failed to present the front and rear of the NTK. It can further be seen that no extant copy of the PCN (front and reverse) has been submitted by Parking Ticketing Limited as evidence that the PCN was correctly issued – a screen-grab from their internal website showing a PCN issued is not sufficient evidence to show that the PCN was correctly issued.