Ncp

Walaboobah

I received another invoice from NCP for Not parked correctly within the markings of the bay space. The last time I had this NCP cancelled the ticket at the first stage after using a template in the Newbies thread

I have had a look in there but the template I used last time (around 12 months ago) is no longer there. Has the advice and guidance changed since then?

Thanks

Fruitcake

Walaboobah wrote: »

I received another invoice from NCP for Not parked correctly within the markings of the bay space. The last time I had this NCP cancelled the ticket at the first stage after using a template in the Newbies thread

I have had a look in there but the template I used last time (around 12 months ago) is no longer there. Has the advice and guidance changed since then?

Thanks

NCP are BPA members so you should use the BPA template in blue from the NEWBIES thread.


The NEWBIES thread is kept up to date (last edited on the 21st of Jan this year) and the template you used would have been pre-Beavis vs parking lie in the Supreme Court which is why there is now a different template. There is also a different one for IPC members as well.

Umkomaas

It certainly has. The newbies sticky is bang up to date, so use the initial appeal from it (the one in blue text).

There's no guarantee that this will bring about an immediate cancellation (you did well last time on your first appeal), but it paves the way to POPLA where NCP are easy to beat (with guidance from us and that given in post #3 of the sticky).

Walaboobah

Thanks will appeal using the template, the previous one was a lot longer, I seem to recall!

Fruitcake

Walaboobah wrote: »

Thanks will appeal using the template, the previous one was a lot longer, I seem to recall!

The previous one was designed to kill the PCN at the first appeal, which obviously happened last time for you. So much has changed that a simplified template is now used for BPA where the killing off has to be done at PoPLA in most cases.
IPC kangaoro court is a completely different matter so has its own template.


If your PCN was on the windscreen, don't appeal too soonly. The NEWBIES thread tells you why.
Whatever happens, you will probably need to start doing some research on PoPLA appeals in the near future if/when the initial appeal is rejected.


Please also read this and get everyone you know to sign the petition.


https://forums.moneysavingexpert.com/discussion/5365003

Walaboobah

Right, as predicted the initial appeal has now failed and I have my POPLA code to appeal to them. However, today, I have received a Notice to Keeper for a ticket issued on a different day but for the same parking infraction. This has a different ticket number to the second one and was issued two days before the one I have appealed!

What do I do about this? Can only assume that someone had removed the ticket from my windscreen!

Surely I can't be charged twice!

As for the POPLA appeal, do I just use the template in the Newbies thread?

Redx

there are no popla appeal templates on this forum, never have been and definitely no popla appeal templates in that NEWBIES thread

there are examples drafted by other members, some are linked in post #3 of the NEWBIES thread so no idea how you missed that post ?

clearly the NTK and the windscreen ticket dont match up, so appeal the new NTK seeing as it has a different pcn number , then get a popla code for that one too (even if you think they are the same, dont take any chances)

the popla appeal you draft up is probably the same for both, assume they dont know what they are doing or have made administrative errors, but as you have both, do both

Walaboobah

Apologies for that, must have got confused with the Initial Appeal Template!

Right, I'll Appeal the second one too!

Walaboobah

Has anyone got a link to a thread for a POPLA appeal for not parking within the confines of a marked bay? I can't seem to find any recent ones either hear or on Pepipoo

Redx

I doubt that those specifics will matter, hence why you are not finding them

assume you broke one of the signage rules, doesnt matter which one

you could have broke the rule about not wearing a blue coat on weekdays !!

your popla appeal will be based on the following, possibly more

no contract with landowner (no locus standii)
poor signage that breaks the BPA CoP
NTK flaws
POFA2012 failures
BPA CoP breaches

anthing else that may be relevant

Walaboobah

OK this needs to be in by 8th April so would like some advice on the below

Dear POPLA,
PCN Number: xxx
POPLA Verification Code: xxx
I write to you as the registered keeper of the vehicle xxxx, I wish to appeal the £60 parking charge notice (PCN) issued by NCP.
I submit the reasons below to show that I am not liable for the parking charge:
1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
2. Railway Land is Not ‘Relevant Land’
3. No standing or authority to neither pursue charges nor form contracts with drivers.
4. Unclear and non-compliant signage, forming no contract with drivers.
5. No genuine pre-estimate of loss.

1. The Notice to Keeper is not compliant with the POFA 2012 – no keeper liability.
To date I have not been issued a Notice to Keeper (NTK) by NCP. As a notice to driver was provided on the vehicle, an NTK is required to be issued no sooner than 28 days after, or no later than 56 days after the service of that notice. This stipulation is laid out in Schedule 4 of the Protection of Freedoms Act 2012 (PoFA).

The alleged infringement occurred on xx/02/2016 and from my understanding the NTK was required to reach me by xx/03/2016 . As none of the mandatory information set out by Schedule 4 paragraphs 8 and 9 of the PoFA has been made available to me as Registered Keeper the conditions set out by paragraph 6 of Schedule 4 has not been complied with. Therefore, there can be no keeper liability.

The keeper liability requirements of Schedule 4 of the Protection of Freedoms Act 2012 must be complied with, where the appellant is the registered keeper, as in this case. One of these requirements is the issue of a NTK compliant with certain provisions. This operator failed to serve any NTK at all. As there has been no admission as to who may have parked the car and no evidence of this person has been produced by the operator, it has been held by POPLA multiple times in 2015 that a parking charge with no NTK cannot be enforced against the registered keeper.

2. Railway Land is Not ‘Relevant Land’
Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.

3. No standing or authority to pursue charges nor form contracts with drivers
I believe that this Operator has no proprietary interest in the land, so they have no standing to make contracts with drivers in their own right, nor to pursue charges for breach in their own name. In the absence of such title, NCP must have assignment of rights from the landowner to pursue charges for breach in their own right, including at court level. A commercial site agent for the true landholder has neither automatic standing nor authority in their own right which would meet the strict requirements of section 7 of the BPA Code of Practice. I therefore put NCP to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between NCP and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to NCP.
In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

4. Unclear and non-compliant signage, forming no contract with drivers.
The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.
The BPA Code of Practice states under appendix B, entrance signage:
“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”
For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.
When with reference to the BPA Code of Practice, it actually states:
"There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision". After inspecting the signs after the driver received the charge, I noted that the signs have a turquoise background and text is black and light blue, making the small text difficult to read. The small print of the signs are impossible to read unless you are up close. If the driver was intending to pay via the DASH Parking app, there are no terms and conditions whatsoever listed in the app, making it impossible for the driver to know they weren’t allowed to park where they did. They would, therefore, only see the signs by the entrance to the carpark which are impossible to read when driving, particularly if it was dark when arriving

There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road.
Furthermore, the signage states a PCN "may" be issued. That is not a clear unambiguous warning.
The requirement to pay £60 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.
5) Neither irrelevant case law (ParkingEye v Beavis, which is not applicable) nor the remedy under the Railway byelaws can support or provide a rationale for this disproportionate private parking charge.

(a) It is believed that this land is covered by Railway Byelaws and I put NCP to strict proof to the contrary. As such, the remedy for any breach is an actual 'penalty' as defined in those byelaws. Prescribed statutory rules (not the BPA CoP) apply to penalties and the offer of parking is made by the Train Operating Company (TOC) or landowner, only by virtue of the byelaws, in the same way that any offence can only flow from defined restrictions within those byelaws. A parking offence can only be pursued in the Magistrates Court by the landowner/TOC themselves which is the only true legitimate interest on this land which is under statutory control.

The car park is already offered/controlled by the TOC which has the lawful remedy of a byelaws penalty open to them. There is no 'legitimate' interest in NCP re-offering the spaces under wholly different terms and charging £60 for their own profit. Two separate sets of terms, obligations and remedies relating to the same parking behaviour cannot co-exist; the land falls under byelaws so there is no scope for what seems to be potentially, a bribe: 'pay us £60 and we won't tell the TOC to pursue the matter under the applicable byelaws'.

Where there is any ambiguity regarding duplication or confusion in contractual or statutory terms/charges or obligations, the interpretation which most favours a consumer must prevail. In this case the interpretation which most favours a registered keeper appellant, is that NCP have no 'legitimate interest' in imposing their own 'charge' instead of a byelaws penalty, which only applies to an established driver.

NCP or the TOC should have identified the alleged offender and the TOC should then have followed their own byelaws procedures; their only legitimate interest in the matter, if they believed there was a case against the driver that day.



(b) NCP seem to be under the misapprehension that POPLA Assessors will swallow the BPA line that the Supreme Court judgment was a green light legitimising all frivolous parking charges. Yet there is no comparison between this case and that one; the only similarity is both operators (NCP and ParkingEye) described the sum as a 'parking charge'.

There the similarities end. The Beavis case has no application here, except in favour of my case as appellant.

That decision related to those specific facts and unusual 'free parking licence' & 'complex' contractual arrangement flowing from specific landowner interests and reliant upon that 'prominent and clear' Riverside Retail Park signage only. The Supreme Court Judges tweeted on the day of the decision, to clarify that decision turned on those facts, that free car park in that case only.

The Beavis decision is not a silver bullet and it cannot be twisted to strike out the majority of private parking ticket appeals and certainly not those which are regarding a Pay and Display site where the alleged loss (tariff) begins as a tangible sum.

This is clearly a 'standard' monetary dispute over an alleged unpaid tariff.

In a standard economic dispute over a financial transaction between a consumer and a trader, like this one, the loss is easily calculable.

By stark contrast, the contract offered to Mr Beavis in the Chelmsford car park in the Beavis case was described by the Judges as a 'complex' contract which Moore-Bick LJ at the Court of Appeal remarked was 'entirely different' from this sort of financial contract flowing from alleged non-payment of a quantifiable sum to NCP.

As regards the Beavis case, it was made plain that in more complex contracts (in that case, a free car park with no monetary sum paid per hour) the trader must demonstrate a 'legitimate interest' in enforcing a disproportionately high charge, to avoid such a charge in each individual case from being an unenforceable penalty.

But this case can easily be distinguished from Parking Eye v Beavis because this case is not a 'complex' contractual arrangement at all, so the same leap cannot be made to disengage the penalty rule by arguing 'legitimate interest'. If that was the case, then every alleged underpayment of a quantifiable sum between any trader and consumer could be escalated x 60. If you underpay your paper bill by £1 - the amount due remains at £1, same as in this case - it cannot escalate to £60 because the Beavis case rationale does not apply to standard contracts.

In Beavis, the difference was there was no small sum owed and so, to reach their decision, the Judges had to consider other interests and the value of the free licence to park at that location made it a far more complex contract than this one. None of the reasons that gave Parking Eye a legitimate interest which disengaged the 'penalty rule' in their case against Mr Beavis are present in this material case, in which the penalty rule remains firmly engaged and where there is a quantified tariff in play.

The appellant respectfully submits that the assessor carefully reads the Supreme Court judgment and the preceding Court of Appeal judgment from the same case. The Judges set apart the Beavis contract from this type of 'simple financial contract'. This is one the Judges had seen many times before, where there is a quantified small sum at stake in the first instance as a result of a primary obligation.

This sort of contract was not under discussion in the Beavis case. In fact, the Supreme Court considered that Lord Dunedin's four tests to identify an unenforceable penalty were still a "useful tool" in deciding whether a simple damages clause in a standard contract was 'unconscionable' or 'extravagant'.

The penalty rule is clearly engaged in this case of a standard contract with a quantified tariff, but unlike in Parking Eye v Beavis it is not disengaged by NCP merely pointing to the Beavis case as if it has blanket relevance (otherwise your local paper shop could point to the Beavis case regarding that £1 underpaid paper bill, as could any trader over any small sum owed). Clearly the 'tweet' from the Supreme Court on the day that their decision was handed down, made it clear that was not the intention of the judgment which turned on its own facts regarding a complex set of circumstances, relevant to a complex contract of its kind only.

At the Court of Appeal stage, when addressing the issue of pre-estimate of loss versus commercial justification, Lord Justice Moore-Bick agreed with HHJ Moloney QC’s findings, and opined at paragraph 27 that: “The application in a case of this kind of a rule based on a simple comparison between the amount of the payment and the direct loss [...] is inappropriate.”

In agreement with Moore-Bick LJ, and distinguishing the contract formed between ParkingEye and the motorist from a commercial contract, Sir Timothy Lloyd stated at paragraph 47 that, “[...] the principles underlying the doctrine of penalty ought not to strike down a provision of this kind, in relation to a contract such as we are concerned with,...”.

The Judges were only discussing ''a contract such as we are concerned with'' which was a far more complex one than ''all the previous cases shown to us {which} have concerned contracts of a financial or at least an economic nature.''

Here, this is one of those cases Courts have seen many times before, a simple contract of a 'financial/economic nature' and the only interest NCP has in enforcing their £60 charge (or indeed instead of the TOC enforcing the penalty arguably arising under the byelaws) is NCP's profit alone.

This position is reinforced in the earlier judgment from the Court of Appeal, where the judgment states:

"44. All the previous cases shown to us have concerned contracts of a financial or at least an economic nature, where the transaction between the contracting parties can be assessed in monetary terms, as can the effects of a breach of the contract...

45. The contract in the present case is entirely different. There is no economic transaction between the car park operator and the driver who uses the car park, if he or she stays no longer than two hours; there is no more than (for that time) a gratuitous licence to use the land...''

47. ...When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker...should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome.

The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829)6 Bing. 141 at 148:

“But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.”

The Consumer Rights Act 2015 includes the fact that a consumer cannot lawfully be expected to pay a disproportionate sum in compensation for a small sum owed and is the fundamental legislation relating to standard contracts between traders and consumers. It is applicable to this case.

The ParkingEye v Beavis judgment makes clear that the Court of Appeal would have considered the disproportionate charge in this case (but not the more complex Beavis case or cases 'of its kind') a clear penalty. They found the contract in Beavis 'entirely different' from simple, commercial 'monetary transaction' cases such as they had seen before.

Thanks in advance for any help with this...