Parking ticket from Indigo - despite having annual parking ticket

aaj123

I have an annual parking ticket at my local train station and the ticket even bears my car registration number. Last week, I somehow left my parking ticket on the car seat instead of displaying on the windscreen and on coming back from work, I observe a 'Penalty Notice' from Indigo with Breach code 1- Failing to display a valid ticket or voucher, stuck to my car window.

It had an appeal process mentioned and thinking that my season ticket copy and a copy of the receipt would easily get me off, I filled in the appeal form on the indigo website the same evening. On hindsight that may have been a mistake as having now read the Newbies thread, it seems like I should have done some research and been careful with the wording in the appeal particularly regarding keeper and driver (I said in the appeal that I was the driver).

As thing stand, today I received an email stating that my appeal has been rejected and now my only recourse is to appeal to POPLA (there is a POPLA verification code in the email letter). I am peeved because the letter does not even attempt to address the evidence that I sent them which included a copy of my season ticket and receipt and instead seems a standard automated response that simply includes photographs of my car showing no ticket on windscreen.

I feel ripped off because of the simple fact that I am a paying customer who has a valid annual parking ticket and the appeal process (or so it is called) does not even bother to take this into account.

Is it worth appealing to POPLA on this incident especially considering my hasty and incorrect first step of appealing quickly to Indigo without being careful about the wording (especially keeper vs driver)? If yes, what should be the main thrust of my argument to POPLA? Any advice, greatly appreciated!

pappa_golf

OK , step back ,


does the ticket mention railway bylaws (14) ?


there is no such offence as failing to display a ticket.


search on here and on pepipoo with the name of the railway station

aaj123

pappa_golf wrote: »

OK , step back ,


does the ticket mention railway bylaws (14) ?

Yes it does. It says:

This car park is regulated by the terms and conditions of parking displayed at the car park in accordance with Rail Byelaw 14. By entering the car park, you have agreed and are contracted to be legally bound by those terms and conditions.

I just read up Byelaw 14 in https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4202/railway-byelaws.pdf
and get your hint. Para 3 talks about 'paying the appropriate charge at the appropriate time in accordance with instructions given by an Operator or an authorised person at that place'.

Do you think my appeal to POPLA should hinge on the point that I have evidence of having paid the charge (annual ticket) and that Rail byelaw says nothing about displaying the ticket?

pappa_golf

popla will not give a stuff , and get it wrong


in order for charges to be brought , they must be by the train operator (land owner) not the PPC , and in the magistrates court , sounds bad? , but they have only 6 mths to bring charges <full stop>


popla will accept the appeal , its now 2nd class ping pong time asking lots of questions and submitting a POPLa appeal almost on the timeout date , then more second class ping pong.


see if you can find a indigo appeal , and run with it , preferably a popla winning one


you could have easily been well into month 2 had you not appealed so quick

Umkomaas

see if you can find a indigo appeal , and run with it , preferably a popla winning one

Here's a couple of starters for you to help you understand the issues.

https://forums.moneysavingexpert.com/discussion/comment/70579146#Comment_70579146

http://notomob.co.uk/discussions/index.php?topic=5909.0

When pappa golf says

submitting a POPLa appeal almost on the timeout date

He refers to the POPLA deadline date, not the 6 months byelaws deadline. Make sure you meet that POPLA deadline as you can kill this off there. Come back after your research with a draft POPLA appeal for critique.

aaj123

Ok folks, so the deadline for me to apply to POPLA is tonight so would like to get some help:

On the POPLA website, the appeal workflow starts with asking for a reason. I am inclined to choose -> "I was not improperly parked -> The terms and conditions of the car park were not properly signed".

The text of my appeal will then run as follows:

I wish to appeal the Penalty Notice issued by Indigo on the following grounds:

1. An annual season parking ticket for the vehicle concerned was already purchased and a copy of the same is enclosed. The ticket was valid on the date of the incident as mentioned in the Penalty Notice. As such the Penalty imposed is not a Genuine pre-estimate of loss. In fact, the true value of the loss is zero since a valid ticket had been purchased.

2. The Breach code mentioned in the Penalty Charge notice is "1 - Failing to display a valid ticket or voucher".
I submit that that this is not a valid offence under the Rail Byelaw 14 under which the South Croydon station car park is regulated. As far as parking charges are concerned, Rail Bye law 14 para 3 only mentions about 'paying the appropriate charge at the appropriate time in accordance with instructions given by an Operator or an authorised person at that place'.
Given that a valid annual parking ticket was already purchased for the vehicle, I submit that the operator of the car park has not locus standii to issue a Penalty charge under the Breach code mentioned in the penalty Notice.


Does this appeal appear sufficient? Thanks in advance for any feedback.

Coupon-mad

so the deadline for me to apply to POPLA is tonight

No it isn't. I keep explaining to people that in fact a POPLA code will work for a few days (only a few days) longer than 28 days.

DO NOT RUSH THIS, DO NOT DO THIS TONIGHT. YOU WILL LOSE WITH THAT APPEAL.

not a Genuine pre-estimate of loss.

That is not a phrase to use at all in any POPLA appeal in 2016.

You have missed out 'no landowner authority' completely, even though in the sticky 'POPLA Decisions' the most recent Indigo case won was on that appeal point!

You have also not stated clearly what is unclear about the signage which normally goes into some detail about the charge being buried in small print so the operator can't have formed any contract with the driver to pay £100.

I am inclined to choose -> "I was not improperly parked -> The terms and conditions of the car park were not properly signed".

Normally we would say appeal under 'other' but as you have already given away who was driving, there's nothing to stop you choosing those sections instead. But do not think you have to fit your appeal into the minuscule word-count allowed. Research will have shown you (I hope) that we write a full POPLA appeal, unlimited words, as a word document then saved as a PDF once you have finished it.

I REPEAT - DO NOT SUBMIT YOUR POPLA APPEAL TONIGHT.

THE CODE WILL WORK FOR AT LEAST 30 DAYS SO GET MORE FEEDBACK AND READ SOME OTHER POPLA APPEALS - YOU NEED TO!

aaj123

Thanks Coupon-Mad.

I saw one of the other posts where you reviewed an appeal in detail and using that one I have now come up with this (I have removed the point on keeper liability and No breach of contract as those did not appear to apply to my specific situation). Does the below look good?


1. No Breach of Byelaw

The Penalty Notice mentions 'This cark park is regulated by the terms and conditions of parking displayed at the car park in accordance with Ray Byelaw 14'.

There is no Railway byelaw known as: 'Breach code 1: Failing to display a valid ticket or voucher'. If Indigo attempt to hold me liable under byelaws, despite the fact it's not relevant land (no POFA keeper liability possible) then breach of byelaws, too, is denied. Railway Byelaw 14 (3) says specifically:

''No person in charge of any motor vehicle, bicycle or other conveyance shall park it on any part of the railway where charges are made for parking by an Operator or an authorised person without paying the appropriate charge at the appropriate time in accordance with instructions given by an Operator or an authorised person at that place''.

As far as 'appropriate charge is concerned', I submit that a valid season parking ticket valid on the date mentioned in the penalty notice had been purchased (a copy of the same is enclosed).

Hence no contravention of the byelaw has taken place.




2. No Authority

Section 7 of the British Parking Association (BPA) Code of Practice requires parking operators to have the written authority from the landowner to operate on the land. I do not believe that Indigo has landowner authority and, as such; the operator has not met the requirements of this section of the BPA Code of Practice.

Section 7.1 states “If you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent). The written confirmation must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for. In particular, it must say that the landowner (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

Section 7.3 states “The written authorisation must also set out:

a. the definition of the land on which you may operate, so that the boundaries of the land can be clearly defined

b. any conditions or restrictions on parking control and enforcement operations, including any restrictions on hours of operation

c. any conditions or restrictions on the types of vehicles that may, or may not, be subject to parking control and enforcement

d. who has the responsibility for putting up and maintaining signs

e. the definition of the services provided by each party to the agreement


Indigo are required to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. Any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with any landholder). In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner otherwise there is no authority.

As Indigo do not have proprietary interest in the land , I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract. I do not believe they have such authority.

Indigo has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.




3. Unreasonable/Unfair Terms.


The charge being claimed by Indigo is a punitive sum. The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''

Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

5.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff in good faith. Indigo require strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to a persons detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

In the case of this Penalty Notice, there was no loss caused by the driver given that a valid annual parking ticket had been purchased for the vehicle in question. Hence it is submitted that the charge claimed by Indigo is an unfair punitive charge.


4. The signage was not readable so there was no valid contract formed between Indigo and the driver


The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between Indigo and the driver. There was no offer, consideration or acceptance flowing between this Operator and the driver which could have created any contract for the driver to pay this extortionate sum over and above the correct tariff already paid.

Indigo state that the terms and conditions of parking are displayed at the entrance to the car park. As the keeper, I made a special visit to the car park to ascertain the positioning and quality of the sign. The sign exists just at a point where a driver takes sharp bend to the left. Further, the signage is facing a direction such that the only way a driver could take notice of the signage is by turning their sight to a direction perpendicular to the direction of travel. This makes the signage difficult and in particular unsafe to take account of. The accessiblity of the sign is clearly a breach of health and safety regulations. The car park is busy and having to take eyes completely off the direction of travel to actually read the sign breaches the BPA code of practice.

Unreadable signage breaches Appendix B of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. A Notice is not imported into the contract unless brought home so prominently that the party 'must' have known of it and agreed terms beforehand. Nothing about Indigo’s terms and conditions' was sufficiently prominent and it is clear that the requirements for forming a contract (i.e. consideration flowing between the two parties, offer, acceptance and fairness and transparency of terms offered in good faith) were not satisfied.

The sign also breaches another point in Appendix B, requiring the the sign to identify who the car park is ‘managed by’. This is not optional information, but is clearly marked as ‘required’.

The BPA code of practice also states (18.3) You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. The badly positioned sign is the only access point for this information. The terms and conditions referred to in the Penalty Notice are visible only on this badly positioned signage.


That completes my case for appeal. I request that my appeal is upheld.


I would also like to formally request to see all evidence presented by Indigo regarding this appeal and the opportunity to refute any evidence submitted by Indigo regarding this appeal.

To quote Henry Greenslade; a highly respected, longstanding lead adjudicator of parking ticket appeals across the board (Council statutory tribunals as well as private parking issues via POPLA). With a reputation for fairness and high integrity.

From the Final Report:

''At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon.''

and from page 15 of the POPLA Annual Report 2015:

“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''

Umkomaas

Looks ok to me, but you need to anticipate any attempt by the PPC to quote 'Beavis' which often knee-jerks an assessor into pressing the Beavis stock paragraphs button from their bank of pre-scripted computerised statements, causing you to have your appeal dismissed.

Do a forum search on 'Beavis rebuttal' and look for recent appeals (last couple of months) where appellants have developed a form of words to block a potential Beavis ambush by the PPC.

Coupon-mad

I would change #3 (remove it because the UTCCRs were swallowed up by the CRA 2015 which POPLA won't consider anyway).

Replace it with this:



3. This charge is an unenforceable penalty. Binding case law, including the ParkingEye v Beavis case, support this position

The £100 charge is called - in the heading on the PCN - a 'penalty', yet Indigo describe it vaguely as a charge under contract. It is trite law that a contractual charge cannot be a 'penalty' and indeed, it was held in the Beavis case at the Supreme Court, that a punitive charge from a non-landowning claimant would be unenforceable. The only way an actual 'penalty' fine could be imposed and pursued would be via Magistrates' court in a case properly brought only by the landowner, the Train Operating Company (TOC) under bylaws.

This charge from a company called 'Indigo' is neither one thing nor the other. No authority within contract law, nor the Beavis case, nor the wording of any bylaw supports it.

The only contract entered into was between the driver and the TOC when the annual season parking pass was purchased. That is a simple financial consumer contract and it was concluded upon payment and supply of the permit. Such a contract turns upon the information supplied at the point of purchase because that is when the terms are agreed. That contract did not state that a driver could be liable for £100 penalty, nor that further terms (on signage) could apply on a day-to-day basis every time the car was parked. That contract was agreed with the TOC and not a company called 'Indigo' and any terms they try to impose later come far too late.

The well-known Court of Appeal cases in Thornton v Shoe Lane Parking and Olley v Marlborough Court provide binding authority for this view.

Neither were overturned nor impacted at all by the ParkingEye v Beavis case which turned on a unique set of circumstances which saved the £85 charge in that case alone, from being caught by the penalty rule, which the Supreme Court Judges held was a rule which was undoubtedly 'engaged' in such a case and would 'rarely' not apply. Their decision related only to one car park/one set of signs/one set of unique circumstances and does not supersede any other contract law authorities.

Indigo are arguing I was bound by unknown added terms creating a contractual charge dressed up as a penalty, yet this £100 'charge' was not a term imposed by the TOC with whom I had my permit contract. A contractual term cannot be relied upon that is only communicated after conclusion of a payment/contract, as that is too late to be incorporated into the prior agreed terms.

Denning LJ in Thornton v Shoe Lane Parking [1971] held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way'' and that the contract takes place when the payment is made (in this case, when I bought the permit).

Olley v Marlborough Court Hotel [1949] 1 KB 532 is the applicable and binding case law supporting the contention that any other terms come 'too late' if they are only known of afterwards: http://www.e-lawresources.co.uk/Olley-v-Marlborough-Court.php - Denning LJ held that a clause a consumer can only learn about after the contract was allegedly formed was too late to be incorporated into the contract: ''The first question is whether that notice formed part of the contract. ... The hotel company no doubt hope that the guest will be held bound by them, but...the ticket comes too late...''

The permit was supplied without reference to any £100 charge risk when purchased and I reasonably believed that the surprise and very unwelcome 'charge' that Indigo tried to impose after the event, would have been cancelled at first appeal stage when they saw I was a genuine permit holder. To continue with this 'charge' despite proof that the bylaws were not breached and the driver was a genuine permit holder, authorised to park in a pre-agreed contract with the TOC, leaves Indigo no excuse for their pursuit because clearly the TOC cannot and will not, under these circumstances, prosecute me under the bylaws. And that was Indigo's excuse/rationale for the charge.

Indigo have no valid reason to 'offer' for a driver to settle for £100 to avoid facing a real penalty claim at Magistrates Court because they know the bylaws were not breached by a genuine paying permit holder. Indigo also know that their own signage was so unclear and wordy as to be unreadable even if the TOC had directed me to read those terms, when I bought my permit (and the TOC did not inform me that any further terms applied other than were stated on the permit).

The sum of £100 is not communicated to permit-holding drivers at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £100 in this case) before parking - because the the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it. This is true even if POPLA believe that terms on a sign can be incorporated later into an already-concluded contract (which I submit are terms which come 'too late').

The well-known and oft used 'Red Hand Rule' in the binding case of J Spurling Ltd v Bradshaw [1956] applies, where Denning LJ stated: ''Some clauses which I have seen would need to be printed in red ink...with a red hand pointing to it before the notice could be held to be sufficient''. In Mendelson v Normand and Thornton v Shoe Lane which were both about parking, this was also clearly stated by Denning LJ:

‘The customer is bound by those terms as long as they are sufficiently brought to his notice beforehand, but not otherwise. In {ticket cases of former times} the issue…was regarded as an offer by the company. That theory was, of course, a fiction. No customer in a thousand ever read the conditions. In order to give sufficient notice, it would need to be printed in red ink with a red hand pointing to it – or something equally startling.’

aaj123

Thanks Coupon-Mad for all your help. I will submit my appeal today with my earlier points 1,2 and 4 and the new point 3 provided by you.

I take it I should submit the text of my appeal as a PDF file to avoid the word count limit right?