Seel St Liverpool PE

Ralph-y

hi , a relative received a nice PCN from those nice people @ PE

after giving them /him just a little help and showing them previous threads on Seel St.
they have come up with the first appeal .....

Date of event 17th May
Date of issue 25th May
Received 6th June (approx due to holidays )

Driver pays attendant 15:04 to 18:00. The attendant advised the driver that if they returned beyond 18:00 then an additional payment should be made at the onsite ticket machine.


The driver returned at approximately 20:00 and proceeded to make payment at the machine as instructed. Before leaving



( this is one of the few PE sites that does have an attendant)



no tickets retained







I challenge this PCN as keeper of the car. I will complain to the landowner about the matter if this PCN is not cancelled.


I believe that your signs fail the test of ‘large lettering and prominence’ as established in Parking Eye Ltd vs Beavis. Your unremarkable and obscure signs were not seen by the driver, are in very small print and the terms are not readable to drivers before they park.


Further, I understand Parking Eye do not own the car park and have given me no information about their policy with the landowner or on site businesses in relation to cancelling such a charge. Please supply that policy under the Consumer Contracts (information, cancellation and additional charges) Regulations 2013. I believe the driver may well be eligible for cancellation and you have omitted clear information about the process for complaints including a geographical address of the landowner.


There will be no admissions as to who was driving and no assumptions can be drawn. You must either rely on the POFA 2012 and offer me POPLA code, or cancel the charge.
I would advise that the driver paid the attendant in the booth for the period 15:04 to 18:00. The attendant advised the driver that if they returned beyond 18:00 then an additional payment should be made at the onsite ticket machine.


The driver returned at approximately 20:00 and proceeded to make payment at the machine as instructed. The car registration XXXXXXX was entered into the machine which I assume there will be a record of this stored electronically proving that the fee due was paid.


In summary two payments were made, one at 15:04 to the attendant and the second at approximately 20:00 before exiting at 20:05. Therefore the additional parking charge detailed in your invoice of 25/05/2016 is not due and I request the charge is cancelled and written confirmation of such issued as soon as possible.


As the keeper of the car, I will require a list of all payments/tickets (with redacted VRNs) recorded on the ANPR data sheet within the two hours five minutes from 6pm till 8:05pm and a copy of the report of all mismatches and errors within that time, if cancellation is not forthcoming.



I have kept proof of submission of this appeal and look forward to your prompt reply.


Yours faithfully







they do understand that this appeal is just a way to POPLA

have I missed anything ?



thanks

Ralph:cool:

Ralph-y

any one having problems with the land registry site today ?

Ralph:cool:

Umkomaas

@Ralph-y. It looks fine, although with the following request (not that for one moment I'd expect them to comply) I'm not sure what is expected to be achieved if all the VRMs are redacted.

As the keeper of the car, I will require a list of all payments/tickets (with redacted VRNs) recorded on the ANPR data sheet within the two hours five minutes from 6pm till 8:05pm and a copy of the report of all mismatches and errors within that time, if cancellation is not forthcoming.

Ralph-y

thanks ....

He / I took it from this thread

https://forums.moneysavingexpert.com/discussion/5429059

quote

CM: You could add that the driver did pay the correct fee but reports the machine was faulty. As the keeper of the car, you require a list of all payments/tickets (with redacted VRNs) recorded on the ANPR data sheet within the two hours from 6pm till 8pm and a copy of the report of all mismatches and errors within that time.

as I said I do not expect much / anything from PE ....

and I hope to extend their new found knowledge to POPLA appeals soon .....

its just my first paid job .... ( I charge 1 Pint ) so want to get it right ...

Ralph:cool:

Ralph-y

this was duly sent to POPLA ..... we ran out of time to polish the appeal a little .....


[FONT=Verdana, sans-serif]Further to the notice of unsuccessful appeal dated xx/xx/2016, as registered keeper of the vehicle, registration number xxxxxxx. I now wish to appeal to POPLA, against the parking charge notice reference: xxxxxxxxxxxxxxx issued by Parking Eye Ltd on the following grounds:
1) No standing or authority to pursue charges nor form contracts with drivers.
2) Ambiguous, unclear, and misleading signage.
3) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability
4) No 'relevant obligation' nor 'relevant contract' under Schedule 4 of the POFA. and this case can be distinguished from Parking Eye v Beavis which does not apply.

Please refer to detailed reasons below:

1) 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, UKPC 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 no automatic standing nor authority in their own right, which would meet the strict requirements of section 7 of the BPA Code of Practice.

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 and to enforce charges in the courts in their own name.

In addition, 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.''

I therefore put UKPC to strict proof to provide POPLA and myself with an unredacted, contemporaneous copy of the contract between UKPC and the landowner, not another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights to UKPC.
There is no contract between Parking Eye Ltd and the driver, but even if there was a contract then it would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc., were not satisfied.

2) Ambiguous, unclear, and misleading signage.
Due to the position of signage, the lack of signage frequency and the barely legible size of the small print, the signs and any core parking terms Parking Eye Ltd are relying upon are too small for a driver to read and illegible at night.

The driver paid for parking upon arrival, complying with such terms as could be discerned in the conditions. The onsite attendant advised the driver when leaving the car park that should the driver after 18:00 to pay any further charge incurred at the ticket machine. The driver returned at approximately 20:00 and paid a further charge at the machine as instructed. The driver paid twice, once to the attendant and once to the machine and Parking Eye Ltd have acknowledged that the driver paid.

It is the will of Parliament following the EU Consumer Rights Directive that express consent is obtained for consumer contracts (not implied consent) and that information is provided in a durable medium in advance.

Based on the signage in this car park, Parking Eye Ltd has failed to meet these requirements.
I contend that the signs on this land (wording, position, frequency, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).
3) 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, UKPC 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, UKPC 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 xxx, 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 UKPC 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.''
I put Parking Eye Ltd to strict proof that they have a relevant, contemporaneous contract with the landowner that entitles them to pursue these charges in the courts in their own name as creditor.

Further, I reiterate the fact that I require Parking Eye Ltd to produce a full contemporaneous, unredacted copy of their agreement with the landowner to confirm (or otherwise) that they had the necessary legal standing to offer parking and pursue charges in their own name at the time of the alleged parking event.

The BPA Code of Practice (CoP) contains the following:
Written authorisation of the landowner
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) before you can start operating on the land in question. The authorisation must give you the authority to carry out all aspects of the management and enforcement of the site that you are responsible for. In particular, it must say that the landowner requires you to keep to the Code of Practice, and that you have the authority to pursue outstanding parking charges, through the courts if necessary.

4) No contract agreed and no legitimate interest nor clear signs.

I also wish to reference the Aziz test (as my case is different to that of Beavis v ParkingEye) in order to assess whether the imbalance arises ‘contrary to the requirement of good faith’, it must be determined whether the seller or supplier, dealing fairly and equitably with the consumer, could reasonably assume that the consumer would have agreed to the term concerned in individual contract negotiations.”

And as for whether average consumers 'would have agreed' to pay £100 had there been negotiations in advance, the answer here is obviously no. There is no justification or negotiation that could have possibly have persuaded an average consumer to pay £100 to this parking firm. Their charge relies upon unseen terms, not clear contracts, and should not be upheld.

I have made my detailed submission to show how the applicable law (POFA) supports my appeal, which I submit should now be determined in my favour.
There is no contract between Parking Eye Ltd and the driver, but even if there was a contract then it would be unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999. The requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc., were not satisfied.

In summary, as the registered keeper, I wish to exercise my right to appeal and would reiterate that payment was made, not once, but twice and payment has not been disputed. Therefore I would ask that POPLA find in my favour and this parking notice be dismissed.
Please find attached images of the signage managed by Parking Eye Ltd on Seel Street, Liverpool.

Yours faithfully,
[/FONT]

he has now received ParkingLies evidence pack ....

it only contains a time line and signage pictures

they are claiming that he only paid for 1 hour ... this is incorrect , he paid £3 apron return for the extra 2 hours .... so seeing that one of the PE signs states




" between 6pm and 8am you can purchase additional time (if required ) at the payment machines/by phone before leaving"

exactly what the attendant stated

I can post up images if you wish

there is little else to rebut in the evidence pack other that to state that they have not proved / denied / supplied information in the POPLA appeal

as in [FONT=Verdana, sans-serif]1) No standing or authority to pursue charges nor form contracts with drivers.

they have not shown authority


[/FONT]section [FONT=Verdana, sans-serif]2) Ambiguous, unclear, and misleading signage.

[/FONT]should have a rebuttal stating the above (advice on wordage)

this was the POPLA bit

"[FONT=Verdana, sans-serif]The driver paid for parking upon arrival, complying with such terms as could be discerned in the conditions. The onsite attendant advised the driver when leaving the car park that should the driver after 18:00 to pay any further charge incurred at the ticket machine. The driver returned at approximately 20:00 and paid a further charge at the machine as instructed. The driver paid twice, once to the attendant and once to the machine and Parking Eye Ltd have acknowledged that the driver paid. "[/FONT]

[FONT=Verdana, sans-serif]
[/FONT]
[FONT=Verdana, sans-serif][FONT=Verdana, sans-serif]3) The Notice to Keeper is not compliant with the POFA 2012 - No Keeper Liability


I know PE's POFA is often wrong .... may be I am having a 'moment ' but I can not see where .....

[/FONT][/FONT]
[FONT=Verdana, sans-serif][FONT=Verdana, sans-serif][FONT=Verdana, sans-serif][FONT=Verdana, sans-serif]the images show arriving at 15.04hrs leaving at 20.05 6 min after paying the second payment
[/FONT][/FONT]
any help will be much appreciated

Ralph:cool:
[/FONT]






[/FONT]

Ralph-y

my apogee's for the wall of text yesterday .......

can some one point me to a reply to the below


"It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract. "

thanks :cool:

Ralph

Redx

ralphy , a few schoolboy errors in that popla appeal

name of PPC = Parking Eye

type of popla appeal ? = UKPC

somebody hasnt proof read it and changed UKPC to PE

Ralph-y

yup ........ I know...... it went off without me seeing it
I was away and he was woried about the deadline for it ...

Ralph:cool:

Coupon-mad

Ralph-y wrote: »

my apogee's for the wall of text yesterday .......

can some one point me to a reply to the below


"It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract. "

thanks :cool:

Ralph

You'll win this, if there is no contract AND no witness statement.


Hat tip to bargepole for this rebuttal wording from a while back:

The Operator has declined to provide evidence, in the form of a contract, between themselves and the landowner. Instead, they rely on the case of Fairlie v Fenton [1870] in an attempt to establish that they can bring actions in their own name, however that case does not assist the operator at all, stating in its preamble ‘a broker cannot sue in his own name upon contracts made by him as a broker’.

Ralph-y

[FONT=Verdana, sans-serif]so we have ....


POPLA Appeal – Evidence pack rebuttal[/FONT]

1. [FONT=Verdana, sans-serif]No Landowner Contract not Legal standing to form contracts or charge drivers[/FONT]
2. [FONT=Verdana, sans-serif]Poor signage/ signage does not comply to the BPA:CoP[/FONT]
3. [FONT=Verdana, sans-serif]Poor misleading photographic evidence[/FONT]
4. [FONT=Verdana, sans-serif]The 'Notice to Keeper' fails to comply to the Protections of Freedoms Act (PoFA)[/FONT]

(ParkingEye in italics)

[FONT=Verdana, sans-serif]1:[/FONT]

[FONT=Verdana, sans-serif]"Authority ParkingEye can confirm that the above site is on private land, is not council owned and that we have written authority to operate and issue Parking Charge Notices at this site from the landowner (or landowner’s agent)." [/FONT]
[FONT=Verdana, sans-serif]"It must also be noted that any person who makes a contract in his own name without disclosing the existence of a principal, or who, though disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. (Fairlie v Fenton (1870) LR 5 Exch 169). It follows that a lawful contract between ParkingEye and the motorist will be enforceable by ParkingEye as a party to that contract". -[/FONT]

[FONT=Verdana, sans-serif]The Operator has declined to provide evidence, in the form of a contract, between themselves and the landowner. Instead, they rely on the case of Fairlie v Fenton [1870] in an attempt to establish that they can bring actions in their own name, however that case does not assist the operator at all, stating in its preamble ‘a broker cannot sue in his own name upon contracts made by him as a broker’.[/FONT]


[FONT=Verdana, sans-serif]So, no authority has been produced , if no authority has been shown in Parking Eye's statement then no such proof can be shown later inferred or not. Action without this authority is central to this case.[/FONT]




2:
[FONT=Verdana, sans-serif]"17/05/2016 Date of event - System check/manual check identified breach of terms and conditions, prior to DVLA request" - [/FONT]
[FONT=Verdana, sans-serif]and[/FONT]


[FONT=Verdana, sans-serif]"The signage on site clearly sets out the terms and conditions and states that;[/FONT]
[FONT=Verdana, sans-serif]By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions and are authorised to park, only if you follow these terms and conditions" - [/FONT]




[FONT=Verdana, sans-serif]Breach of terms & conditions did not occur [/FONT][FONT=Verdana, sans-serif]as the on-site attendant advised the driver when leaving the car park that should the driver return after 18:00 to "pay any further charge at the ticket machine".[/FONT]






[FONT=Verdana, sans-serif]The sign it's self clearly states that [/FONT]
[FONT=Verdana, sans-serif]'Between the hours of 6pm to 8am you can purchase additional time (if required) at the payment machine or by phone before leaving' [/FONT]


[FONT=Verdana, sans-serif]note : before leaving[/FONT]




[FONT=Verdana, sans-serif]payment had been made upon entry and a further payment made before departure. Therefore no contract or terms or conditions where breached.[/FONT]






[FONT=Verdana, sans-serif]3:[/FONT]


[FONT=Verdana, sans-serif]"The signage on site clearly sets out the terms and conditions and states that;[/FONT]
[FONT=Verdana, sans-serif]By parking, waiting or otherwise remaining within this private car park, you agree to comply with these terms and conditions and are authorised to park, only if you follow these terms and conditions" - [/FONT]


[FONT=Verdana, sans-serif]as above the signage is not clear [/FONT]


[FONT=Verdana, sans-serif]Due to the position of signage, the lack of signage frequency and the barely legible size of the small print, the signs and any core parking terms Parking Eye Ltd are relying upon are too small for a driver to read. [/FONT][FONT=Verdana, sans-serif]

[/FONT][FONT=Verdana, sans-serif]The driver paid for parking upon arrival, complying with such terms as could be discerned in the conditions. [/FONT][FONT=Verdana, sans-serif]The on-site attendant advised the driver when leaving the car park that should the driver return after 6pm to pay any further charge incurred at the ticket machine. The driver returned at approximately 7:50pm and paid a further charge at the machine as instructed. The driver paid twice, once to the attendant and once to the machine. Parking Eye Ltd have acknowledged that the driver paid. [/FONT]


[FONT=Verdana, sans-serif]Therefore conditions where met.[/FONT]




[FONT=Verdana, sans-serif]"Evidence G:[/FONT]
[FONT=Verdana, sans-serif]System generated print out showing that insufficient time was purchased on the date of the event". - [/FONT]


[FONT=Verdana, sans-serif]The above does not show the full transactions / payments made and is therefore incomplete and misleading.[/FONT]
[FONT=Verdana, sans-serif]This evidence point is irrelevant as the driver paid upon arrival to the on-site attendant (from 3pm until 6pm). Clearly spoke to the attendant about making further payment upon departure (after 6pm) and despite numerous requests to Parking Eye to provide logs of payments made that day to the attendant - the driver or POPLA is yet to receive this information. [/FONT][FONT=Verdana, sans-serif]

[/FONT][FONT=Verdana, sans-serif]It is the will of Parliament following the EU Consumer Rights Directive that express consent is obtained for consumer contracts (not implied consent) and that information is provided in a durable medium in advance.[/FONT][FONT=Verdana, sans-serif]

[/FONT][FONT=Verdana, sans-serif]Based on the signage in this car park, Parking Eye Ltd has failed to meet these requirements. [/FONT]
[FONT=Verdana, sans-serif]I contend that the signs on this land (wording, position, frequency, clarity) do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach, as in the case of Excel Parking Services Ltd v Martin Cutts, 2011 and Waltham Forest v Vine [CCRTF 98/1290/B2]).[/FONT]


[FONT=Verdana, sans-serif]4:[/FONT]


[FONT=Verdana, sans-serif]To reiterate, no assumptions can be made at this point as to who was the driver as they [/FONT][FONT=Verdana, sans-serif]have not conformed to the strict PoFA conditions and as such cannot pursue the keeper, the driver has not been identified.[/FONT]




[FONT=Verdana, sans-serif]To finalise, I would like to complain profusely to POPLA, as the registered keeper, that two payments were made. One upon arrival, to the on-site attendant (as it would be impossible to leave a car park without paying an [/FONT][FONT=Verdana, sans-serif]ON-SITE [/FONT][FONT=Verdana, sans-serif]attendant) from the hours of 3pm until 6pm. And another payment upon departure (stated to the driver by the attendant) from 6pm until 8pm. Therefore the full amount being paid in total before the departure of the driver.[/FONT]



tempted to remove some of the latter signage bits

any comments

Ralph:cool:

Coupon-mad

I would suggest shortening it, so it does not come across as a new appeal. POPLA will not read it if they think you are adding appeal points so keep it snappy and short.