UKPC appeal won at POPLA stage

Minilopmad

Hi,

Not posted before but read the advice on here following getting a UKPC windscreen ticket back in February at a "3 hours free if ticket displayed" retail car park for not displaying ticket (£100 fine reduced to £60 if paid within 14 days). In short, I lodged my appeal using the standard text in the newbies thread at day 30, ignored UKPC standard response letter a couple of weeks later, then received UKPC standard rejection letter with POPLA code, researched on here again and compiled 4 page appeal to POPLA which I submitted 2 weeks ago. Just received email from POPLA to say UKPC are not contesting my appeal - therefore it's a WIN!

Wanted to say a massive THANK YOU to all the board guides and to encourage others to follow the advice here carefully in order to stick it to the parking cowboys. oh and I signed the petition

:beer::j

Coupon-mad

Nice one. Can you show us your POPLA appeal you used, in case newbies find your thread and not much else?

Minilopmad

It's on my computer at work at the moment (day off today) but will post tomorrow

Minilopmad

I am the registered keeper and I wish to appeal a recent parking charge from UKPC on xxx at xxx at xxx. I submit the points below to show that I am not liable for the parking charge:

1) No standing or authority to pursue charges nor form contracts with drivers.
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.
4) No contract agreed and no legitimate interest nor clear signs.

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.

2) 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.''

3) The signage was not compliant so there was no valid contract formed between UKPC and the driver.

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

Section 18 of the British Parking Association (BPA) Code of Practice requires operators to fully comply with the following on entrance signage:

18.2 Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore,
as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.

18.3 Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand. Signs showing your detailed terms and conditions must be at least 450mm x 450mm.

If a driver can't read the sum of the parking charge (£100) before parking - because the font is too small/the sign unremarkable and too high to read from a driver's seat - then they cannot have agreed to it. Also, a keeper appellant cannot be bound by inadequate notice of the charge either (POFA Schedule 4 requires 'adequate notice' of the sum of the parking charge, not just vague illegible small print, however near the car).

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

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

i.e. even if a document or notice is ostensibly under the nose of a consumer, the onerous term (e.g. £100 charge for not displaying a valid ticket in a car park) needs to be VERY explicit and prominent. Not hidden among small print on a sign, regardless of whether that sign is in the vicinity of the car. This was reiterated by Denning LJ in Thornton v Shoe Lane Parking [1971] where he held that the courts should not hold any man bound by such a condition unless it was ''drawn to his attention in the most explicit way''. Small print on an illegible, unremarkable and pale sign on a wall is not enough and is not on a par with the very clear signs 'with the charge in large lettering' as was explored and vital to the decision in Parking Eye v Beavis.

The signs are up on poles, 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 UKPC to POPLA will show the signs with the misleading aid of a close up camera and the angle may well not show how high the sign is nor the fact the UKPC signs are one of many pieces of information in the clutter of this busy customer car park. As such, I require UKPC to state the height of each sign in their response and to show contemporaneous photo evidence of these signs, taken at the same time of day without photo shopping or cropping and showing where the signs are placed among a myriad of other information bombarding a customer.

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.

This concludes my POPLA appeal.

Yours faithfully,


xxx

Coupon-mad

That's a decent generic POPLA appeal that other people can crib from. Thanks for posting it as a resource so some other newbies see it and can be helped by it especially in terms of points #1, #2 and #3 which are very detailed.

As always, a word of warning to newbies not to just BLINDLY copy POPLA appeals though. Clearly this one talks about a 'Pay & Display machine' so the words would not all be applicable, verbatim, in a permit situation or overstay of free parking or in a railway or airport bylaws case (where there is more to say). It would need tweaking but is very useful.