Help with POPLA appeal

Coupon-mad

wahooanna wrote: »

On Coupon-mad's first post on this thread they said I can't use the 'No Genuine pre-estimate of loss' - is that not basically the same thing as the Beavis case?

No. The opposite really...

The Beavis case said charges do not have to be based on a GPEOL as long as the signs are crystal clear and prominent and there is a compelling and overriding 'legitimate interest' which allows a party to claim a charge which is set higher than any 'loss' but is not unconscionable under the circumstances of the case.

Your job is to show: 'well, that was found to be the case in the car park in the Beavis case but those arguments do not wash in this case because...'

So you should look at the example I've linked for you below and tweak it to suit your argument that, although in the Beavis case, ParkingEye demonstrated they had a 'legitimate interest' in charging overstaying motorists which extended beyond the recovery of any loss, here, PTL have no comparable signage evidence nor rationale for their charge. In Beavis, clear, prominent and unambiguous signage terms were key and the interest of the landowners was to manage to keep spaces free so there would be a turnover of customers for the retail outlets.

There is no comparable complex 'commercial interest' here and the charge is unconscionable, being set to punish permit holders who are fully authorised to park there and there is no comparable 'turnover of bays' aim, as was the rationale behind the Beavis charge in a retail park.

Any 'interest' allowing pursuit of a sum substantially beyond any conceivable loss cannot merely hinge upon 'income from the charge' set as a deterrent and solely to punish/profit. If it is merely based upon that, then it is just the sort of standard contract that the Supreme Court stated WOULD be an unenforceable penalty. It is the clear burden of the operator to demonstrate otherwise - a legitimate commercial interest beyond GPEOL in THIS car park relating to THIS alleged contravention and THESE signs - and not for POPLA as an independent ADR to 'apply the Beavis case' for them as a silver bullet (which it is not).

If I could find the points just to copy and paste them, believe me I would be doing that but as mentioned previously...I'm getting very frustrated with reading hundreds of posts and still not knowing what to write or how to even use this forum.

Here's a recent one:

https://forums.moneysavingexpert.com/discussion/comment/70461877#Comment_70461877

Remove/ignore anything about 'NHS/Hospitals' (specific only to those types of cases) but you can see what is required from that example.

Show us your revised draft now, please.

We want to see a dismantling of the 'Beavis case' in the context of your own parking event (not as hard as it sounds because ALL recent ones on here attempt that - and I have spelt it out for you above, you could use my words if you like as well as the words of Henry Greenslade on the linked example).

And we want to see a stronger point re 'no landowner authority' quoting section 7.3 from the BPA CoP. EASY! It's in all recent POPLA appeals including the one I showed you.


Your signage point isn't bad except three things:

- use your ruler-next-to-the-words picture (see my other reply below, showing how you can argue the font was too small to be read).

- was it dark? If not, why did you include a copy & paste of someone's paragraph about signs not being lit/unreadabke in hours of darkness?!

- Change 'should' to 'must' (below) and add the bit shown:

If a permit can only be displayed in the FRONT windscreen then this [STRIKE]should[/STRIKE] must clearly be stated on the signs and in the terms and conditions, and therefore supports that my car was in fact complying with terms and conditions and not in breach of the contract.

The signs around the car park say that a permit must be displayed at all times in the windscreen (doesn't specify front or back). POPLA cannot assume any more than is stated on those signs and it is trite law that any court would interpret that term in my favour as a consumer.

Omitting any requirement specifically stated on signs, to display a permit in the FRONT windscreen (not clearly discounting the back windscreen), means that it is now too late to add any such obligation. It is too late to add assumptions, conditions or any other meanings to the signage as it was drafted. The contract law doctrine of 'contra proferentem' applies to all consumer contracts involving contract in written form. Namely, the interpretation of ambigiuous wording which best favours a consumer MUST prevail and that is what would be applied by the courts and 'contra proferentem' was applied between 2012 -2015 by the outgoing POPLA Assessors, consistently.

The interpretation POPLA must apply must be that I did comply with the terms, as drafted by this operator. This is particularly ambiguous wording, due to the common practice over a number of years, in this works car park. I have worked here for over 2 years and I've never had a problem with this until this sudden occasion (I can only assume a new employee was over-enthusiatic about dishing out PCNs unfairly and reading something into the terms which simply is NOT stated).

The car park only has about 8-10 spaces and are strictly reserved for people with permits who work in the building. As the parking bays are slanted, it is easier to park nose-first into the spaces (but not always). Therefore like several other employees, I keep my parking permit stuck to my back window but even when parking the other way, it could certainly be seen if the PTL ticketer had walked around the car, making an adequte inspection of all windows and showing his/her photographs of both front & back windscreens (noticeably, they omitted to take photos of the permit and showed only a misleading viewpoint from the front).

I require this operator's explanation as to why, after two years, they have allowed an employee to suddenly reinterpret the terms to pursue a legitimate permit-holding employee with their permit correctly displayed - the same as it always has been - in the back windscreen. This permit WAS displayed and WAS accessible to see, whichever way round the car is/was positioned within the bays.

Back to the landowner authority part - if the landowner has an agreed contract with PTL does that exclude this point? He lets them do what they do and pretty sure it's all signed for and legit so I don't think the second half of the appeal I wrote is any good!

No, because PTL have to produce it to POPLA. That's why you have that point in the POPLA appeal, to put them on the spot to show it, not because you think it doesn't exist.

OF COURSE THEY HAVE A CONTRACT WITH THE LANDOWNER - PPCs HAVE TO! BUT THEY AREN'T GREAT AT SHOWING THEM!!

Coupon-mad

wahooanna wrote: »

i465.photobucket.com/albums/rr20/annaclarke28/thumb_IMG_3732_1024_zpsotzcxejf.jpg

You will need to add the first part of the link to view the photos (as a new user I can't!)...Can you let me know if I am right in saying that the font is too small for this particular bit of the sign (it's 15mm)?

Your second photo is good as evidence, because the position of that (large lettering) sign below the other one renders the terms in the top one unreadable. I think you should add that fact to your signage point and embed this picture in your word doc at that point to illustrate:

http://s465.photobucket.com/user/annaclarke28/media/thumb_IMG_3732_1024_zpsotzcxejf.jpg.html

Your third photo with a ruler beside the words is also good:

http://s465.photobucket.com/user/annaclarke28/media/thumb_IMG_3746_1024_zpstx5zp33n.jpg.html

Because the terms including the £100 appears to be, in fact, no more than half an inch high, approx). That appears to be no larger than .40 font size going by this, (unless anyone can show a better way to compare this as I'm not an expert with font sizes!):

http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

Sign Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

and the same chart is reproduced here:

http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

''Below is a guideline for selecting sign letters.

Multiply the letter height by 10 and that is the best viewing distance in feet.
Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the £100 'charge' and placed high on a wall above another MUCH larger general sign, is woefully inadequate in an outdoor car park. Under Lord Denning's Red Hand Rule, you can say that the £100 itself (being the onerous term causing potential penalty 'fine' cost to consumers who do not see it) should have been effectively but perhaps not literally: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found re the car park in Beavis.

So, a reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, should have meant that the £100 and the terms should have been on the lower sign in that same very large lettering. In the Beavis case, the £100 was isolated on the sign, highlighted in a different colour/background contrast and it was in large letters. Not here.

A term written in half and inch size font can, under the interpretation tables shown above (applying the x10 and then x4 calculation), at the very best stretch of the calculations for visible signage, be read from a MAXIMUM of no more than 20 feet away. Since the sign is above another one and up on a wall not close to vehicles (and you reversed in) there is no way it could be read from a car before parking. Given that letters look smaller when high up on a wall as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it to be able to read the terms and the £100 onerous term, as you did on a step ladder (didn't you?!!!) to get that picture with the ruler...




^^^ we've not done this in such detail before - but it could be useful to use in POPLA appeals in future I think.

You can use all of the above in your unclear sigage paragraph, links and all even though one is from the US and one is an eBay guide. It's all good evidence in your favour and forces an operator to have to show evidence to rebut it.

wahooanna

Hi everyone - sorry for not replying to your advice, I was in the process of moving houses/jobs so very stressed!

However I'm happy to say that my appeal was successful!! Yay!! I just wanted to say thank you for all the advice even though I was slightly freaked out and wasn't sure I understood all the advice I was being offered haha...Special thanks to Coupon-Mad with the info on letter sizing on the signs as that's the reason my appeal was allowed


Let me know if you wanted to know any further details on the decision and I can copy and paste.


Thanks again!

Umkomaas

Good one, thanks for updating us; it helps keep regulars motivated and gives us vital information on what technical/legal points POPLA are upholding appeals.

Coupon-mad

wahooanna wrote: »

Hi everyone - sorry for not replying to your advice, I was in the process of moving houses/jobs so very stressed!

However I'm happy to say that my appeal was successful!! Yay!! I just wanted to say thank you for all the advice even though I was slightly freaked out and wasn't sure I understood all the advice I was being offered haha...Special thanks to Coupon-Mad with the info on letter sizing on the signs as that's the reason my appeal was allowed


Let me know if you wanted to know any further details on the decision and I can copy and paste.


Thanks again!

Great! Hope the move (job and house) went well too.

Yes please, if you could copy & paste the decision then separate it into smaller paragraphs please (not the wall of text that POPLA appeal decisions show as!).

And the Assessor's name, the date of decision and POPLA code would be useful as we could quote this decision in other cases, if it is specific about signage lettering size.

wahooanna

Here is the assessor's decision (Rochelle Merritt);

"While the appellant has raised several grounds of appeal my assessment will focus solely on signage. The operator has provided the terms and conditions of the car park which state “Vehicles parked in this area must clearly display a valid P.T.L. authorised permit in the windscreen”.

Additionally, “Failure to comply with the parking conditions below will result in a £100 parking charge notice being reduced to £60 if paid within 14 days” The operator has sent me images of where the signs are located around the site. From this evidence it is clear that the majority of the signs are placed above another sign which this operator is not responsible for.

In comparison to the sign below the operator’s sign is much smaller and the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park.

In addition the operators signs would not be clearly visible from a parking space, especially considering there is a much larger sign below that does not state that a PCN will be payable for non-compliance.

From the evidence provided to me on this occasion the Parking Charge Notice was not issued correctly. The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal."

The date was 02/06/2016 and the code is 5960956830. Thank you again

Redx

well done

please copy and paste the above reply and the PPC name into this thread too

https://forums.moneysavingexpert.com/discussion/4488337

its a good one to refer to so needs putting in there as well, for posterity and for helping others (and giving them hope)

bod1467

The other factor (that POPLA never seem to rule on) is that no contract could exist in the situation described ... if the driver didn't display a permit then he couldn't contract with the PPC - you cannot contract to do something which is forbidden.

Therefore any offence would be trespass, which only the landowner could pursue, and only for provable losses caused by the trespass, not an arbitrary sum.

nigelbb

Here are the signs. Note especially the second where the PPC sign in tiny font is dwarfed by the large sign underneath it.
http://i465.photobucket.com/albums/rr20/annaclarke28/2_zpsk1pddabb.jpg

http://i465.photobucket.com/albums/rr20/annaclarke28/thumb_IMG_3732_1024_zpsotzcxejf.jpg

http://i465.photobucket.com/albums/rr20/annaclarke28/thumb_IMG_3746_1024_zpstx5zp33n.jpg