Unclear expiry time, weekday/end rates interface

Coupon-mad

http://imgur.com/a/3wcew

Signs do look unclear in that picture. Easier to just change http to 'hxxp' than putting a link upside down!

Finally, i would like to find out if the land is owned by ECP or not, might you know how to determine this?

You could pay Land Registry £3 but in fact, you don't have to know for sure, you can just suggest it is not owned by them (standard 'no landowner authority' quoting 7.3 of the BPA CoP in full.

No keeper liability needs to detail what's missing from the NTK and that's been done on other Euro POPLA threads this year. The NTK is definitely not compliant and it's not just the slightly spurious one people always want to rely upon, about 'not identifying the creditor'. Actual wording is completly omitted so this is not a NTK which is capable of holding a keeper liable.

Rez99

Thank you Coupon Mad!

The link get around is excellent

at this stage, I am still getting my head around the POPLA appeal.
And I noticed a few things..
1) I cannot find an example of a Non ANPR appeal that i can base it upon.
2) I actually never recieved a notice to keeper! Just a "Parking charge notice" and letter from ECP
to notify me that the appeal was rejected with "evidence" photos and POPLA code.

Could anyone shed light on 1), a example of pay and display Euro Car parks POPLA appeal example, and 2) if not having received NTK will put me in a better position and what to place in the next POPLA appeal !

Many thanks in advanced.
I will continue the search for 1).

Rez99

Hello, OP here.

I have the first draft up for checking,

It is, as with most, a Frankenstein of others, but I am not sure if some are applicable to my case,
as some clips were taken from ANPR type claims. My case revolves around over staying by several hours than paid at a simple pay and display with no camera control.

It is more to do with ambiguous meaning of HH;MM format without AM/PM which I have not included in the POPLA claim.
Many, MANY thanks in advanced.

Euro Car Parks PCN,
POPLA Code:
I am the registered keeper and I wish to appeal a recent parking charge from Euro Car Parks Limited on , at some amazing Car park,. I submit the points below to show that I am not liable for the parking charge:

1) No Landowner Authority
2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
3) The signage was not readable so there was no valid contract formed.

1) No landowner Authority:

I question Euro Car Parks Limited’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Euro Car Parks Limited to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Euro Car Parks Limited’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.

They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Euro Car Parks Limited is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Euro Car Parks Limited are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.

In addition, Section 7.3 of the CoP states:

“The written authorization 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.''

I put Euro Car Parks Limited to strict proof of compliance with all of the above requirements.

This is vital, especially in view of the signs where it is clear on close scrutiny, is that someone (identity not established and I ask the operator for evidence in this regard) has changed the time limit to 4.5 hours at some point. So, I contend that the contract - if this operator produces one - does not reflect the altered signage and if only a basic agreement or 'witness statement' is produced, then this will fail to demonstrate compliance with 7.3 (in particular, point b and d, above).

It is eminently possible that the contract states only the original free parking period (whatever that was) and therefore a sticker over a sign is unsupported by the will of the landowner in any contract. This would destroy any attempt by this operator to argue there is a Beavis-case-style 'legitimate interest' backed by any commercial justification and wishes of the landowner to sue customers after just 4.5 hours in a car park where they have only allowed this agent to issue PCNs after a completely different period.

I require Euro Car Parks Limited to provide a full copy of the contemporaneous, signed & dated contract with the landowner showing evidence to meet 7.3 of the CoP. In order to comply, a non-landowner private parking company must have a specifically-worded contract with the landowner – not merely an ‘agreement’ with a non-landholder managing agent – otherwise there is no authority.

2) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!

I can see from the limited information before me in the NTK, only that the car stayed for a certain amount of time and that the contravention was 'either/or' an overstay or failure to pay. This does not create any certainty of terms, it leaves a keeper to wonder what the hourly rate tariff even was and whether the driver paid nothing, or paid too little, or paid only for half an hour or an hour, or paid in full but put in the wrong car registration, or some other event.
These are the omissions:

''9(2) The notice must—
(c) Describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d) Specify the total amount of those parking charges that are unpaid...'
(e)
state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper— It does not state they do not know the driver just my details were requested as registered keeper from the DVLA
(f)
Warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—

(I)
The amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and (H)
(I)
Specify the date on which the notice is sent (where it is sent by post) or given (in any other case). Not sure on this one all the PCN had is issue date of notice
(5)
The relevant period for the purposes of sub-paragraph (4) is the period of 14 days beginning with the day after that on which the specified period of parking ended

The validity of a NTK is fundamental to establishing liability for a parking charge. As POPLA Assessor Matthew Shaw stated: ‘‘where a Notice is to be relied upon to establish liability...it must, as with any statutory provision, comply with the Act.'' This NTK was not compliant due to the omissions of statutory wording, so it was not properly given and there is no keeper liability.


3) The signage was not compliant so there was no valid contract formed between Euro Car Parks and the driver.
The only sign was up on fencing, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by Euro Car Parks to POPLA will no doubt show the signs with the misleading aid of a close up camera and the angle may well not show how high the sign actually is. As such, I require Euro Car Parks to state the height of each sign in their response and to show contemporaneous photo evidence of these signs.

This concludes my POPLA appeal.

Yours faithfully,


xxxxxxxxxx {registered keeper's name...}

Coupon-mad

I noticed you copied a template mentioning spending just '4.5 hours in a car park' which is NOT right, so proof reading is still needed!

I would move 'no landowner authority' to be your final point (I think you can have four points) if you think they own or lease the car park. Make 'no keeper liability' the first point and change it to say no NTK was ever served...like in point #2 here which is a good, lengthy explanation to try to stop POPLA making the error they keep making about keeper liability:

https://forums.moneysavingexpert.com/discussion/comment/70918552#Comment_70918552

And you will see that example has a stronger point about the signage being inadequate as well. I think you need to make your signage/unclear terms point more specific to what the driver understood to be the case, including what you said here:

The display states in 24hr format without the AM/PM due to its format where one element of error came from.

There are 2 sources of consideration that lead to this mistake.
1. the display and ticket is both in 24 hr format without the AM/PM being clear
2. The car park has 2 rates. normal rate for weekday and cheaper rate for weekend.
The driver wishes to keep the car from Friday to Saturday for a duration of 24 hours.
As its two rates the driver thought he will add money until he saw 2PM.
The sign is not clear that if paid on a weekday you must pay same rate for weekend which should be cheaper.

And this point:

Other things to note is that the difference in cost between 12 hr and 24 hr for weekday is 30p difference.

...lends itself to this argument which can be #3:

3. The charge offends against the 'penalty rule' and the CRA and is not saved by the 'ParkingEye v Beavis' decision
This situation is an 'ordinary' financial contract involving no overstay and no breach of the legitimate interests of the landowner. Whilst this is a parking charge issue, it was NOT a 'complex contract' in any way comparable to the free licence/turnover of spaces situation which the Beavis case involved. This was a simple consumer/trader transaction with a small fee payable and a ticket for parking being produced by a machine. This is sort of monetary transaction was held to be 'entirely different' from the unusual contract and 'free licence' discussed in ParkingEye Ltd v Beavis and can be very easily distinguished from that case, which does not supersede all other points of appeal or defence against other situations in other car parks with other facts, especially those where set tariffs apply.

The Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' is the binding authority in support of this position. At 47 in the Court of Appeal Judgment in ParkingEye Ltd v Beavis it was held:

''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 to the innocent party, 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.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts (e.g. a parking tariff of 30p being allegedly owed):
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.'' This is NOT a more complex case.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

In addition, the Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event and after all hearings) supports my appeal position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, and failed to explain in clear language, the payment due where the stay includes parking overnight and into a weekend. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.'' The difference in cost between 12 hr and 24 hr for a weekday is just 30p difference.

As this charge is clearly out of all proportion to 30p it must be considered unrecoverable. Such an escalation of the true cost is punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts.

Rez99

Thank you Coupon Mad!

Will make edits as soon as i get home tomorrow. I just wanted to post to say thank you and that your post is certainly noticed and not ignored.

Rez99

Hello!
So i took out the irrelevant free parking time limit reference of 4.5hours thing completely,
and shamelessly copy and pasted the quoted section which covers the 30P difference.
It now reads like this, which I think is OK.

Im still unsure on the unclear signage regarding the AM/PM not being noted anywhere on the pay and display machine nor ticket... Should I look to add that somewhere or should I leave it out as its human error?
e.g machine and ticket reads 4:40 was mistaken as 4:40PM when it meant 4:40AM (but in 24hr format)
Many thanks again!

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2) The signage was not readable so there was no valid contract formed.
3) The charge offends against the 'penalty rule' and the CRA and is not saved by the 'ParkingEye v Beavis' decision
4) No Landowner Authority
1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
With regards to the notice that was placed on the vehicle and the rejection letter, Euro Car Parks have attempted to establish keeper liability under Schedule 4 of the Protection of Freedom Act 2012. However, they have substantially failed because they have not fulfilled the second condition for keeper liability and subsequently not complied with the fundamental requirements set out in POFA 2012. As a result, Euro Car Parks have no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply.
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) The conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’
As the ‘alleged’ contravention happened on 7th of May, the NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which the notice to driver was given. As Euro Car Parks have evidently failed to serve a ‘notice to keeper’, not only have they chosen to reject the strict timelines set out in POFA 2012, but have consequently failed to meet the second condition for keeper liability.
Furthermore, no assumptions can be made that driver liability is possible in this situation. Henry Gleenslade, the previous Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a registered keeper without a valid NTK. Thus in this situation, UKPC have neither complied with, nor met the keeper liability requirements and thus there is no keeper liability.
Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade, the POPLA Lead Adjudicator in his 2015 POPLA Report:
''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

2) The signage was not compliant so there was no valid contract formed between Euro Car Parks and the driver.
The only sign was up on fencing, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by Euro Car Parks to POPLA will no doubt show the signs with the misleading aid of a close up camera and the angle may well not show how high the sign actually is. As such, I require Euro Car Parks to state the height of each sign in their response and to show contemporaneous photo evidence of these signs.

3) The charge offends against the 'penalty rule' and the CRA and is not saved by the 'ParkingEye v Beavis' decision
This situation is an 'ordinary' financial contract involving no overstay and no breach of the legitimate interests of the landowner. Whilst this is a parking charge issue, it was NOT a 'complex contract' in any way comparable to the free licence/turnover of spaces situation which the Beavis case involved. This was a simple consumer/trader transaction with a small fee payable and a ticket for parking being produced by a machine. This is sort of monetary transaction was held to be 'entirely different' from the unusual contract and 'free licence' discussed in ParkingEye Ltd v Beavis and can be very easily distinguished from that case, which does not supersede all other points of appeal or defence against other situations in other car parks with other facts, especially those where set tariffs apply.

The Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' is the binding authority in support of this position. At 47 in the Court of Appeal Judgment in ParkingEye Ltd v Beavis it was held:

''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 to the innocent party, 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.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts (e.g. a parking tariff of 30p being allegedly owed):
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.'' This is NOT a more complex case.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

In addition, the Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event and after all hearings) supports my appeal position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, and failed to explain in clear language, the payment due where the stay includes parking overnight and into a weekend. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.'' The difference in cost between 12 hr and 24 hr for a weekday is just 30p difference.

As this charge is clearly out of all proportion to 30p it must be considered unrecoverable. Such an escalation of the true cost is punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts.
4) No landowner Authority
I question Euro Car Parks Limited’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Euro Car Parks Limited to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Euro Car Parks Limited’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Euro Car Parks Limited is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Euro Car Parks Limited are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“The written authorization 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.''
I put Euro Car Parks Limited to strict proof of compliance with all of the above requirements.

This concludes my POPLA appeal.

Yours faithfully,


xxxxxxxxxx {registered keeper's name...}

Coupon-mad

Looking good.

I am newly suggesting (as of today) quoting POPLA's own words at them so they don't fall into their usual trap of saying that 'POFA doesn't matter because the operator is pursuing the appellant as driver' when in fact the driver has not been identified at all!

Absolute rubbish but POPLA keep doing it and we need to stop them.

So, using a decision they made today in an Indigo railway car park case I put in 'POPLA Decisions' I suggest we quote POPLA's wording (from Indigo railway decisions about liability) and after the first point, put in a point number #2 (and renumber the rest further down). I suggest:



2. The operator has not shown that the individual who it is pursuing for the parking charge is in fact liable for the charge.
The driver has not been identified. Even if POPLA (wrongly, because the POFA doesn't support this assumption against a keeper) currently seem to believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where no Notice to Keeper was served at all, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.

The fact that I appealed early, after a windscreen PCN (Notice to Driver stage) does not suggest who was driving because either a driver or a keeper is entitled to appeal at that early stage. I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. As Henry Greenslade (the Lead Adjudicator of POPLA for 3 years) stated - quoted above in my first appeal point - no such 'reasonable presumption' exists in law whatsoever.

From the evidence provided, POPLA will be unable to determine that the operator has identified the appellant (me) in this case as the driver of the vehicle. It is a fact that the driver has not been identified and the POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual.

Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable.

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, and showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion, regarding a keeper appellant like myself being liable, without the POFA having been followed. No Notice to Keeper being served is absolutely fatal to this case for this operator.

Im still unsure on the unclear signage regarding the AM/PM not being noted anywhere on the pay and display machine nor ticket... Should I look to add that somewhere or should I leave it out as its human error?
e.g machine and ticket reads 4:40 was mistaken as 4:40PM when it meant 4:40AM (but in 24hr format)

I would add to the 'unclear signage' point that the machine and ticket are ambiguous and explain why (without implying the driver!).

Rez99

Again, thank you coupon mad!

OK, this i feel, will be my last draft to post on here
Many thanks!

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability.
2) The operator has not shown that the individual who it is pursuing for the parking charge is in fact liable for the charge.
3) The signage was not readable so there was no valid contract formed.
4) The charge offends against the 'penalty rule' and the CRA and is not saved by the 'ParkingEye v Beavis' decision
5) No Landowner Authority
1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
With regards to the notice that was placed on the vehicle and the rejection letter, Euro Car Parks have attempted to establish keeper liability under Schedule 4 of the Protection of Freedom Act 2012. However, they have substantially failed because they have not fulfilled the second condition for keeper liability and subsequently not complied with the fundamental requirements set out in POFA 2012. As a result, Euro Car Parks have no lawful authority to pursue any unpaid parking charges from the registered keeper, and there should also be no discretion on this matter, as if keeper liability conditions are not fulfilled – then keeper liability simply does not apply.
The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:
''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if
(a) The conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;
*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’
As the ‘alleged’ contravention happened on 7th of May, the NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which the notice to driver was given. As Euro Car Parks have evidently failed to serve a ‘notice to keeper’, not only have they chosen to reject the strict timelines set out in POFA 2012, but have consequently failed to meet the second condition for keeper liability.
Furthermore, no assumptions can be made that driver liability is possible in this situation. Henry Gleenslade, the previous Lead Adjudicator stated that it is the keeper’s right not to name the driver, and of course still not be lawfully held liable, under Schedule 4.
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.
There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver.”
Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle as they have not met the critical conditions within Schedule 4 of the Protection of Freedoms Act (POFA) 2012. As the registered keeper, I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by POPLA on numerous occasions, that a parking charge cannot be enforced against a registered keeper without a valid NTK. Thus in this situation, UKPC have neither complied with, nor met the keeper liability requirements and thus there is no keeper liability.
Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Mr Greenslade, the POPLA Lead Adjudicator in his 2015 POPLA Report:
''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

2. The operator has not shown that the individual who it is pursuing for the parking charge is in fact liable for the charge.
The driver has not been identified. Even if POPLA (wrongly, because the POFA doesn't support this assumption against a keeper) currently seem to believe that they can 'assume that the operator is pursuing the appellant as the driver of the vehicle' in cases where no Notice to Keeper was served at all, there is still the issue of identifying that the individual the operator is pursuing, is the party who is liable.
The fact that I appealed early, after a windscreen PCN (Notice to Driver stage) does not suggest who was driving because either a driver or a keeper is entitled to appeal at that early stage. I am the keeper and I chose to appeal, not the driver and nor can I be held/assumed as if I was that party. As Henry Greenslade (the Lead Adjudicator of POPLA for 3 years) stated - quoted above in my first appeal point - no such 'reasonable presumption' exists in law whatsoever.
From the evidence provided, POPLA will be unable to determine that the operator has identified the appellant (me) in this case as the driver of the vehicle. It is a fact that the driver has not been identified and the POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual.
Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable.
As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, and showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion, regarding a keeper appellant like myself being liable, without the POFA having been followed. No Notice to Keeper being served is absolutely fatal to this case for this operator.

3) The signage was not compliant so there was no valid contract formed between Euro Car Parks and the driver.
The only sign was up on fencing, away from the Pay & Display machine, which is not a 'sign' nor does it communicate full contractual terms & conditions. Any upright signs were not so prominent among all the other signage on site that they were ever seen by the occupants of the car. Any photos supplied by Euro Car Parks to POPLA will no doubt show the signs with the misleading aid of a close up camera and the angle may well not show how high the sign actually is. As such, I require Euro Car Parks to state the height of each sign in their response and to show contemporaneous photo evidence of these signs.
The Pay and Display machine, along with the ticket, failed to clearly state the ticket validation period, not stating the displayed time format with adequate signage. For example, “04:00” can imply 2 moments in a day, 04:00 PM and 04:00AM. Both the ticket and the Pay and Display machine therefore should state either “12hour format with AM/PM” or indicate if in 24hour time format, to make clear of the 24hour format being displayed. Not stating this, leaves the driver to misunderstand the correct validation period of the purchased ticket.

4) The charge offends against the 'penalty rule' and the CRA and is not saved by the 'ParkingEye v Beavis' decision
This situation is an 'ordinary' financial contract involving no overstay and no breach of the legitimate interests of the landowner. Whilst this is a parking charge issue, it was NOT a 'complex contract' in any way comparable to the free licence/turnover of spaces situation which the Beavis case involved. This was a simple consumer/trader transaction with a small fee payable and a ticket for parking being produced by a machine. This is sort of monetary transaction was held to be 'entirely different' from the unusual contract and 'free licence' discussed in ParkingEye Ltd v Beavis and can be very easily distinguished from that case, which does not supersede all other points of appeal or defence against other situations in other car parks with other facts, especially those where set tariffs apply.
The Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' is the binding authority in support of this position. At 47 in the Court of Appeal Judgment in ParkingEye Ltd v Beavis it was held:
''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 to the innocent party, 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.” ''
And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''
At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts (e.g. a parking tariff of 30p being allegedly owed):
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.'' This is NOT a more complex case.
At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''
In addition, the Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event and after all hearings) supports my appeal position in at least two ways:
- the signage failed to make any obligation and/or risk of penalty prominent, and failed to explain in clear language, the payment due where the stay includes parking overnight and into a weekend. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''
- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.'' The difference in cost between 12 hr and 24 hr for a weekday is just 30p difference.
As this charge is clearly out of all proportion to 30p it must be considered unrecoverable. Such an escalation of the true cost is punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts.
5) No landowner Authority
I question Euro Car Parks Limited’s authority from the landowner, to enforce parking charges regarding alleged breaches at this car park.
BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Euro Car Parks Limited to strict proof of the contract terms with the actual landowner (not a lessee or agent who has no more title than the operator). I question Euro Car Parks Limited’s legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in neither their own name nor standing to form contracts with drivers themselves.
They do not own this car park and appear (at best) to have a bare licence to put signs up and ‘ticket’ vehicles on site, merely acting as agents on behalf of a principal. No evidence has been supplied lawfully showing that Euro Car Parks Limited is entitled to pursue these charges in their own right in the courts which is a strict requirement within the BPA CoP. I suggest that Euro Car Parks Limited are certainly not empowered by the landowner to sue customers and visitors in a free of charge enormous car park and that issuing 'PCNs' by post is no evidence of any right to actually pursue charges in court.
In addition, Section 7.3 of the CoP states:
“The written authorization 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.''
I put Euro Car Parks Limited to strict proof of compliance with all of the above requirements.

This concludes my POPLA appeal.

Coupon-mad

Nearly done. This will end up as a PDF and looks best if you copy & embed your photo evidence, the images cropped and zoomed in, to show what you mean by 'unclear signs'. A single PDF attached under 'other' on POPLA's webpage is what you are aiming for, with the photos illustrating the appeal to break up all the words, give the Assessor something to look at and not to have to open other photo attachments in isolation as separate attachments (not good).

I think the 'unclear signage' part in your draft is a bit too short and generic at the moment, need to be more specific and tie it in to explain your photo evidence. For example, the only white entrance sign with a blue BPA 'P' on is on a fence over to the right (show your Google streetview pic of that P sign beside a parked red car). So as a driver arrives and turns into those signless, open yellow gates they would not reasonably be assumed to have seen that the car park is managed because there is no entrance sign in a conspicuous place in the view of a driver at the gateway. So ECP have breached the 'mandatory entrance signs' section of the CoP Appendix B.

You should point out that the £100 sum is completely unreadable on the yellow sign that is literally at weed-level on the ground and would be completely obscured by even a small car! The £100 is in at least 4 x smaller font than the tariffs, on that large/low (unlit) sign so it would be reasonable to assume that any driver would not realise that any other 'charge' is in play except the tariffs and cannot be deemed to be bound by an unknown secondary contract to pay an unread/unseen £100.

You could add that it seems ECP has realised that sign is in the wrong place/needs moving because in the final picture (taken at a later date) you found it covered by with black vinyl as if it was to be taken down and repositioned where it might be seen. With the position it was in on the date in question, no driver could be held to have read about the £100, in minuscule font at ankle height.

Rez99

Hello Coupon mad,

As suggested, I have placed the pictures and wrote more situation specific lines which again referred to the photos as you suggested. And I took care to refer the driver as the "driver".

I did not place the point regarding the black vinyl coverage as I could not find a better picture to demonstrate this.

Many thanks for the help.
I will get back with the results!