Indigo rail car park penalty notice/online appeal

Spacesimian2016

As enclosed below - my POPLA appeal, based on an Indigo Breach Code: 3- Parked in an unauthorised area.
I have not included the referenced pictures - I have not been on the POPLA website as I was not sure whether I had to do all in one go or could re-enter and update accordingly but is the best format to embed them within the Word document/PDF or do they request images separately?
Many thanks again for the invaluable help - looking to get this uploaded soon with deadline tomorrow.[FONT=&quot][/FONT]
[FONT=&quot]Dear POPLA Assessor, [/FONT]

[FONT=&quot]PCN #: xxxxxxxxxxxxxxxxxxxxxxx[/FONT]
[FONT=&quot]POPLA verification code: xxxxxxxxxx[/FONT]

[FONT=&quot]I write to you as the registered keeper of the vehicle [registration license], I wish to appeal the £100 parking charge notice (PCN) issued by Indigo.[/FONT]

[FONT=&quot]I submit the reasons below to show that I am not liable for the parking charge:[/FONT]
1. [FONT=&quot]No Keeper Liability (fails PoFa 2012 requirements)[/FONT]
2. [FONT=&quot]Provision of unredacted landowner contract for Indigo to:[/FONT]
[FONT=&quot]- manage the car park[/FONT]
[FONT=&quot]- issue charges[/FONT]
[FONT=&quot]- take court action in their own name[/FONT]
3. [FONT=&quot]No proprietory interest in the land[/FONT]
4. [FONT=&quot]Signage[/FONT]
5. [FONT=&quot]Unfair terms [/FONT]
6. [FONT=&quot]No genuine pre-estimate of loss[/FONT]

1. [FONT=&quot]No Keeper Liability[/FONT]
[FONT=&quot]Indigo’s declared position via their correspondence is based on railway byelaws, which can be found at:
[/FONT][FONT=&quot]https://www.gov.uk/government/publications/railway-byelaws[/FONT]
[FONT=&quot]
The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.
[/FONT][FONT=&quot]
From the evidence provided to POPLA by the operator, I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.

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

- POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
- Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.

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. [/FONT]

2. [FONT=&quot]The provision of an unredacted landowner contract for Indigo to:[/FONT]
[FONT=&quot]- manage the car park[/FONT]
[FONT=&quot]- issue charges[/FONT]
[FONT=&quot]- take court action in their own name[/FONT]
[FONT=&quot]With no standing or authority to neither pursue charges or form contracts with drivers, Indigo have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in 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 license to put signs up and 'ticket' vehicles on site, merely acting as agents for the Train Operator. No evidence has been supplied lawfully showing that they are entitled or assigned any title/rights to demand money from me.[/FONT]
[FONT=&quot]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. [/FONT]
[FONT=&quot]Railway Land is Not ‘Relevant Land’:-[/FONT]
[FONT=&quot]Since byelaws apply to railway land, the land is not relevant land within the meaning of PoFA and so is specifically excluded from 'keeper liability' under Schedule 4 of the Protection of Freedoms Act 2012. As I am the registered keeper I am not legally liable as this Act does not apply on this land. I ask the Operator for strict proof otherwise if they disagree with this point and would require them to show evidence including documentary proof from the Rail authorities that this land is not already covered by bylaws.[/FONT]

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


4. [FONT=&quot]Signage[/FONT]
[FONT=&quot]The signage was not compliant with the BPA Code of Practice and was not seen/ able to be 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. [/FONT]

[FONT=&quot]In breach of Appendix B (Mandatory Entrance Signs) Indigo have no signage with full terms which could be readable at eye level, for a driver in moving traffic on arrival. (as per attached photographs)[/FONT]

[FONT=&quot]The signs do not meet the minimum requirements in part 18 of the BPA code of practice. They were not clear and intelligible as required.[/FONT]
[FONT=&quot]The BPA Code of Practice states under appendix B, entrance signage:[/FONT]
[FONT=&quot]“The sign must be readable from far enough away so that drivers can take in all the essential text without needing to look more than 10 degrees away from the road ahead.”[/FONT]

[FONT=&quot]For a contract to be formed, one of the many considerations is that there must be adequate signage on entering the car park and throughout the car park. I contend that there is not.[/FONT]

[FONT=&quot]The sign at the entrance to the premises is obscured / rendered illegible by being placed at low height, containing small lettering and enveloped by vegetation so as to not be seen when approaching as well as not being readable/legible to a driver moving in a car when entering the premises. Any alleged contract is not formed after the vehicle has already been parked, such as when the driver walks away and past a sign (on the opposite side of the car park) when entering the station platform area, as this is too late. Another sign containing the Terms and Conditions in the lower car park area where the vehicle was parked is obscured by a ticket machine and was also not visible when walking from parked vehicle up stairs to leave car park to railway station as it is not double-sided.[/FONT]
[FONT=&quot]There were no signs or road markings to indicate that the area was private property or in any way restricted, and no signage indicating the area was private before entering the road. The requirement to pay £100 is not clear and prominent as the Supreme Court commented on in Beavis. Such an onerous obligation should be the most prominent part of the sign, as is stated in Lord Denning's Red Hand Rule.[/FONT]

5. [FONT=&quot]Unfair terms [/FONT]
[FONT=&quot]The charge being claimed by Indigo is a punitive sum, especially in light of the fact a valid parking ticket had been purchased and correctly displayed. [/FONT]
[FONT=&quot].[/FONT]
[FONT=&quot]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...''[/FONT]


[FONT=&quot]Test of fairness:[/FONT]
[FONT=&quot]''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. [/FONT]

[FONT=&quot]5.1 Unfair terms are not enforceable against the consumer.[/FONT]

[FONT=&quot]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.''[/FONT]

[FONT=&quot]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.”[/FONT]

[FONT=&quot]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.[/FONT]

[FONT=&quot]6. No genuine pre-estimate of loss[/FONT]
[FONT=&quot]The parking charge did not fall under the category of a GPEOL on the following points:[/FONT]

i. [FONT=&quot]The correct charge for the period in question, which was paid in full as per the purchased car parking ticket displayed within the vehicle for the relevant period, was £6.90, as per the attached photograph ie. £6.90 per day, £13.80 for a 2 day total sum.[/FONT]
ii. [FONT=&quot]The parking contravention charge of £100 is out of all proportion to any potential loss on the part of Indigo and therefore does not represent a genuine pre-estimate of loss. [/FONT]
[FONT=&quot]iii. There is no loss flowing from this parking event. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.[/FONT]



[FONT=&quot]If a contract was formed between the driver and Operator it would be a simple financial consumer contract. An offer of parking for a set sum was made in return for a small payment. This makes plain that the sum being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable. [/FONT]

[FONT=&quot]As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If The Operator believes that inadequate payment was made (which their PCN fails to make clear) their demand should be for any unpaid tariff as that would be their only loss. The charge is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If The Operator believes their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this has been calculated.[/FONT]

[FONT=&quot]The charge is not a genuine pre estimate of loss but an unenforceable penalty as Parking Eye v Beavis can easily be distinguished from this case.[/FONT]
[FONT=&quot]I would refer the POPLA adjudicator to the persuasive remarks of Sir Timothy Lloyd in the judgment handed down by the Court of Appeal in the case of Parking Eye v Barry Beavis. In that situation the penalty charge was justified on the basis that it was necessary to deter motorists staying longer than allowed to facilitate the turnover of free parking places. It was determined that the contract was not a financial one in that there was no economic transaction between ParkingEye and the motorist. This was not changed by the later judgment in the Supreme Court.[/FONT]

[FONT=&quot]This is in stark contrast to the present case where there is an economic transaction between the Operator and the motorist, and no restriction on the time of stay was made provided payment of the tariff was made.[/FONT]

[FONT=&quot]This car park is no different to any other commercial enterprise. There can be no argument of commercial justification allowing what would otherwise be a clear penalty simply because a small payment was purportedly not made when the vehicle would otherwise have been welcome to park as it did.[/FONT]
[FONT=&quot]A contractual term which imposes the requirement to pay a disproportionately large sum for failing to pay a far smaller one is the very essence of an unlawful penalty. Analysis of paragraphs 43-51 from the judgment clearly demonstrates that the Court of Appeal would have considered the charge in this case as an unenforceable penalty. This case can be clearly distinguished from that of ParkingEye v Beavis the judgment in which is irrelevant in this situation.[/FONT]

[FONT=&quot]Any reliance on the Supreme Court judgment in the case of Parking Eye v Beavis should also be disregarded as the judgment simply reaffirms that the decision in that case was based on the use of that particular car park which was free and the charge justified to ensure motorists left within 2 hours for the good of all other drivers and the facility and Parking Eye as that was their only income. As previously mentioned in this situation there is no such justification as the car was welcome to park as it did in return for a small payment to the Operator who is already making income from the site.[/FONT]

[FONT=&quot]I respectfully request [/FONT][FONT=&quot]that this parking charge notice appeal be allowed and the appeal should be upheld on every point.[/FONT]

[FONT=&quot]Yours faithfully,[/FONT]

Coupon-mad

Firstly I would explain the background and the fact you had paid and displayed, to POPLA. You could use your wording from this thread, why not, says it like it is! I just removed 'not an official space' as that helps the other side, not you:

Background
I am a daily user of the Indigo rail car park at Sevenoaks - turned up with pre-bought ticket at 8.15am and it was full - which was down to the Southern rail strike and those commuters coming across to use the Southeastern service via Sevenoaks. I parked at the end of a row of cars, not blocking or obstructing any cars or passage - and displayed my ticket. Came back at end of day to find a penalty notice with a breach code -3 - Parked in an unauthorised area. £100 or £60 if paid within 14 days. I had hoped common sense would prevail given the rail strike. I am an annual rail pass holder as well, so to have the rail service create this adds another layer to it. Looks like they had clobbered other cars as well, just gone for it.

[Their signage is entitled 'Railway byelaws: car park terms of use' but do I want to acknowledge that I have seen them at all?]

You are not saying you saw the byelaws terms before parking, you are merely using the byelaws now in your favour, which is fine.

- Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.
[I declared myself the driver so is this line not valid?]

I think it is OK. You could add: It is equally true to state that there is also no presumption in law that a driver is necessarily the owner of the car they parked. The operator has not shown that the individual who it is pursuing for the parking charge (me, the driver) is in fact liable for the charge. They cannot switch ambiguously and disingenuously from 'penalty' to 'contractual parking charge' changing the entire previously-argued rationale of the £100, depending on if an appellant has admitted to being the driver.


Re this bit, change from 'keeper appellant' to driver appellant' and stop at 'liable' and remove the struck out wording about the POFA:

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 [STRIKE]keeper[/STRIKE] driver appellant like myself being liable. [STRIKE]without the POFA having been followed[/STRIKE]

Change your heading for point #1 to No Owner Liability

Change 'license' (verb only = a typo) to licence (the noun spelling in the UK) throughout.


Add BPA CoP section 7.3 and the bit below from the law, to your signage point:

In particular, 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.

Further, over and above the BPA CoP requirements, the following section from the byelaws clarifies that only the Magistrates Court can decide if they are satisfied about the adequacy of any sign or notice.

See below: ‘no person shall be subject to any penalty’ not if Indigo say so and not even if POPLA or any other party says so. POPLA cannot decide liability under byelaws, according to this section (not even if the BPA want POPLA to do so):

Railway byelaws - 24 Enforcement

(4) ''Notices
No person shall be subject to any penalty for breach of any of the Byelaws by disobeying a notice unless it is proved to the satisfaction of the Court before whom the complaint is laid that the notice referred to in the particular Byelaw was displayed.''

Remove completely the entire points 5 and 6 which don't work for your case:

[STRIKE]5. Unfair terms[/STRIKE]

[STRIKE]6. No genuine pre-estimate of loss[/STRIKE]

I have not been on the POPLA website as I was not sure whether I had to do all in one go or could re-enter and update accordingly

You have to submit everything in one go and they will disallow anything you try to add later!

is the best format to embed them within the Word document/PDF or do they request images separately?

I much prefer a one-off PDF with the photos embedded in your word document to illustrate a point as you make it. I always find that works for me, much clearer and the POPLA Assessor has some pretty pics to look at rather than a wall of words. You can also uploads separate photos as well as your PDF if you want to show them the original photo of the sign too. I did that once and it worked - and the case was won - but I still embedded suitably cropped pics in the actual word document as I went along.

Here are two suggested points to replace your deleted #5 and #6, these are lifted straight from Indigo POPLA appeals I wrote for a colleague at school and all three won, this month:


5. No person or body other than the Courts can impose a penalty for breach of Byelaws 14(1), 14(2) or 14(3) of the Railway Byelaws 2005.

As persuasive evidence, see the Freedom of Information Request here:

https://www.whatdotheyknow.com/request/enforcement_of_railway_byelaw_14

Any definition of “authorised person” (if Indigo argue they are such) is not relevant in this context. There is nothing in the Railway Byelaws 2005 which states that such a person or private firm has any power to impose a ‘penalty’.

Only a Magistrates’ court can, upon laying of the case by the landowner, who are the Train Operating company (TOC).

Certainly a private firm cannot dress up a ‘charge’ and call it a ‘penalty’ just because they happen to be agents of a TOC at a Railway car park and they feel that calling their charge a penalty gives them a more imposing and intimidating status than issuing ‘parking charges’.

I put Indigo to strict proof to show the basis of their ‘penalty’ and state the type of court within which they believe they would be able to enforce this ‘PCN’ in their name, as required by the BPA CoP. If it is the Magistrates Court I put them to strict proof that they have the power and authority to do this and that they have done so, showing case files, claim numbers, and evidence from the TOC as well as a rebuttal of the publicly-available FOI information, if Indigo submit it is incorrect. Indigo will also have to prove with documentary evidence that the money from these alleged 'penalties' goes to the TOC (as a fine or penalty must) and not to Indigo (as a contractual charge dressed up to impersonate a penalty would).


6. No Breach of Byelaw

If Indigo attempt to hold me liable under byelaws, then any breach of byelaws 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''.

This bylaw is about NOT PAYING (i.e. pay and display). Nothing about parking at the end of a row, having paid and displayed. And it is not disputed that the driver had paid and had no further fee to pay.

Spacesimian2016

Thank you very much indeed for the clear and incisive instructions, which I have fully acted on and amended accordingly. Let me know if you think it worth me re-posting again.
A small (hopefully) final query - do I need to sign the appeal and go through a whole scan/PDF palaver to incorporate the signature or is typing my name sufficient and not an indicator of a lack of intent?
Many thanks again

Coupon-mad

No need to sign it; I've never signed one and I do them for other people.

Spacesimian2016

Thank you very much for all of your considerable expert help Coupon-Mad
I have hopefully navigated the (rather tricky/obtuse?) POPLA appeal site successfully and crucially hope that the pdf has successfully uploaded as that forms the basis of the whole appeal.
(Not the easiest form/web page to see that it was successfully attached/uploaded aside from a rubbish bin icon appearing to suggest that 'something' was there to delete, makes me wish I had uploaded it few more times in other parts of the form but at the time didn't want to over-do it/ annoy the arbitrator and/or appear scatter-gun which is ridiculous to have contemplated in hindsight.)
Plus I should have looked up some POPLA appeal/website top tips in advance for peace of mind.
Fingers crossed - thanks again and I will update here with the verdict when it comes through.

Coupon-mad

Great. Your description of the useless POPLA website is spot on, and the little packet icon looks awful and you can't even check what you've uploaded! Normal for POPLA, sounds right to me.

Spacesimian2016

Bit worried now as I don't recall a little packet icon, just the green bin suggesting there was something there!
Hopefully it has worked out - will counter-appeal if need be obviously
Cheers

Coupon-mad

I think the packet changes to a bin-thingy once uploaded, weird isn't it? As long as some sort of icon showed then you had certainly uploaded something!

Spacesimian2016

Just to say in case other people find themselves in similarly uncertain position after investing the time and effort into an appeal - I had to know for sure so called the POPLA number and they confirmed it had been received - was pretty straightforward (just confirmed my details and code) and they had offered to accept (non-uploaded) materials separately via direct email if need be. Could be useful if anyone forgets anything significant to call them pre-deadline, cheers.

Spacesimian2016

Hello - as an update to this I have just received the following email from POPLA:-

---

Dear **********

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference **********.

Indigo Solutions have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

---

RESULT! Thank you so much for your immediate assistance and support here which made this possible - especially a MASSIVE thank you to Coupon-Mad who constantly came back quickly with invaluable advice and help on this.
Good luck to everyone else with their claims against these racketeers, they certainly can be beaten and exposed as being the chancing charlatans they most certainly are.

Cheers!