Windscreen ticket on hire vehicle in own spot

Mr_Stroopwafel

Here's what I have so far, I would ideally like to include something about what they mentioned regarding displaying a permit being a regulation of the residents association, and it having no authority.


Dear XXX

Thank you for your prompt response.

I am no longer in contact with Minster Baywatch, as I have now exhausted their internal appeals process and am offering this as a way to resolve the matter before further action to save the costs of all parties. As the agents that appointed Minster Baywatch you are jointly liable for their actions.

The point is that whether displaying the permit or not, you are now aware this vehicle had every right to be parked in this particular bay because it is allocated to the flat and the parking bay is paid for each month in the rent. The displaying of a permit is not a contractual requirement of the tenancy agreement, but is done solely as an aid to the parking attendant which has since been abused by the issuing of this parking charge.

No instruction was given by anyone regarding this permit, and certainly no contracts were made with the tenant other than the Tenancy agreement which makes no mention of any requirement to display a parking permit. The tenant did not consent to nor agree to a private parking company operating in such a manner.

There is a significant legal precedent supporting the motorist in this area - in particular R. L. Davey vs UKPC [2013] before Winchester Crown Court 21st January 2013, and Case B6QZ4H3R, High Wycombe before Deputy District Judge Ellington, UKPC v Mr M [2016], both cases concerning where “Permit Only” parking was breached.

Could you confirm (and I will use this response in any court case) whether yourself/the Management Agency receives any form of payment from Minster Baywatch, either by way of a set fee for being allowed to operate on the premises, or by way of a 'commission' on tickets issued and/or paid.

I also request a list of dates when you will be unavailable over the next 6 months as should this proceed to court, I will be calling you as a witness.

I have now spent a significant amount of my valuable time dealing with this parking charge. I am holding the Management Company liable for my costs as it is they who have taken the unreasonable actions of allowing a private parking company (that makes most, if not all, of its money from parking charges) to operate a profit making business in this space, and as such my costs stand at approximately £304 ( 16 hours at the court rate of £19 per hour) in addition to the reasonable travel, accommodation and loss of earnings costs.

As a gesture of goodwill, I am prepared to write off my costs on the understanding that you as a management company will instruct your agents Minster Baywatch to cancel all demands for money and for both the parking company and yourselves to issue myself with an apology and assurances that this situation will not occur again.


Yours sincerely,

Umkomaas

Nice one!

Let us know how they respond.

As the agents that appointed Minster Baywatch you are jointly and severally liable for their actions.

Add this.

Mr_Stroopwafel

Submitted to POPLA, along with a few photos. Here's Minster Baywatch's reply. I have them nailed on a couple of points (Ntk, photos) I think which I will include at the top.

Is it worth replying to each point (in particular the wall of text they posted Re:Beavis case) or just present the strongest ones and let POPLA go from there?
TIA

---

(Mr X also provided images of the signage and the vehicle displaying the permit with his appeal to POPLA).

In response to point a, Minster Baywatch refer to the images section of this document which shows the patrol officer thoroughly checked the vehicle before issuing the ticket and took photos from all angles to prove the contravention occurred. These photos clearly show that there was no permit present in the vehicle at the time of contravention. Due to this, Mr X’ statement is therefore incorrect.

Responding to point b, we refer to the original representations section of this document which shows we followed all rules in accordance with POFA, asking Mr X to clarify whether he wishes to appeal as the Keeper of the vehicle and if not, we require written authorisation from the driver of the vehicle. Once this clarification was received, we then registered Mr X’ appeal. All of this process was done correctly.

Regarding point c, Minster Baywatch again refer back to the discussion between ourselves and Mr X where he clarified himself as the Keeper of the vehicle and we received his authorisation to register his appeal based on this. Because of this, this statement is again incorrect.

In response to point d, Minster Baywatch assert that this is irrelevant to this parking charge as we previously stated, we assert it is not sufficient for a driver to be in possession of a permit, it must be clearly displayed in accordance with the rules of this site for a vehicle to be authorised to park.

In relation to point e, Minster Baywatch point out that there is no trespass as we work under contract law. For this we refer Mr X back to the ParkingEye vs Beavis case.

For point f, we refer to the Other Evidence section of this document which shows the License Agreement between Minster Baywatch and the landowner. This statement is therefore incorrect.

In response to point g, Minster Baywatch refer to the supreme court’s decision in the recent case of Beavis vs Parkingeye. The ruling supported the view of the Court of Appeal judges in April 2015 and that of Judge Moloney in the county court hearing of the case that a parking charge should be viewed as an effective deterrent. The judgment confirmed a charge of £85 is lawful and reasonable and motorists parking on private land must comply with the advertised terms and conditions. We assert this charge is comparable to the one in this case and enforceable based on this legal precedent. Minster Baywatch assert the charge amount of £100 for breach of the sites rules is justified. In the recent court of appeal judgement in Parkingeye Limited v Beavis Lord Justice Moore-Beck agreed with the decision of Judge Moloney QC in the county court hearing of the case and confirmed the correct approach to the issue of whether a clause of a contract is unenforceable as a penalty requires an examination of its roles from a number of different perspectives including proportionality of actual loss, deterrence and commercial justification. Moloney ruled although the principle object of the charge in the case was deterrence of breach of the site rules, it was neither improper in its purpose nor manifestly excessive in its amount having regard to the level of charges imposed by local authorities. Moloney viewed the charge of £85 as commercially justifiable and Lord Justice Moore-Beck agreed with this in the court of appeal judgement, stating that although Parkingeye suffered no direct financial loss from the breach of site rules in the case, they were likely to suffer indirect financial loss as an inability to manage parking at the site and deliver the services they were contracted with the landowner to provide would likely result in the loss of the contract and consequent financial loss and damage to the companies commercial reputation. Minster Baywatch therefore assert the charge amount of £100 in the present case is justifiable on these principles. Lord Justice Moore-Beck also agreed with Moloney that some support for the view that charges of this kind are not to be regarded as unenforceable can be found in section 56 and schedule 4 of POFA 2012. Lord Justice Moore-Beck states these provisions strongly support the conclusion that Parliament considered it to be in the public interest that parking charges of the kind now under consideration should be recoverable provided they had been brought clearly to the attention of the motorist. Minster Baywatch assert the charges in this case were clearly brought to the motorist’s attention on entering the site and refer to the Images section to support this. In the recent court of appeal judgement in Parkingeye Limited v Beavis Lord Justice Moore-Beck states in order to achieve a just outcome in cases such as these it is necessary to return to the principles which underlie the rules that the court will not enforce an agreement for the payment in the event of breach of contract of an amount which is extravagant and unconscionable. Lord Justice Moore-Beck states in cases where a contract provides for the payment on breach of a sum which significantly exceeds the greatest loss that the law would recognise as having been suffered by the injured party requires other factors such as factors of a commercial nature to be considered which may remove the extravagant and unconscionable nature of the contract. Lord Justice Moore-Beck states in the present case the charge of £85 was commercially justifiable but also socially justifiable.

Mr X stating that there is inadequate signage at this site in point h is his view, however we refer to the Images section of this documents which shows the signs. These signs are very clear to users of the site and meet all necessary requirements in accordance with the BPA Code of Practice. The photographs in which Mr X has provided show the signage at night, however the parking charge in this case occurred in the early afternoon when it was light. This is therefore irrelevant. However, we assert that these signs are very high contrast and abundant which are then lit up by the vehicle headlights when a driver enters the site. This makes the signs visible and easy to see, therefore how dark it is does not affect drivers being able to see them.

In relation to point i, (Mr X has placed these points the wrong way around from the list at the beginning and the paragraphs provided, we are stating point i as “Breach of the Consumer Rights Act 2015 due to unfair, disproportionately punitive and non-transparent terms”), Minster Baywatch assert that this act is based upon sales of goods. As we have not provided any goods to Mr X, he is not a consumer and this act is completely irrelevant to this parking charge and any car parking enforcement.

Responding to point j, we refer back to our previous point that Minster Baywatch work under contract law therefore this statement is irrelevant.

Finally responding to point k, we refer to the Other Evidence section of this document where it can be proven the full 20-minute observation occurred before the parking charge was issued to Mr X’ vehicle. It shows Mr X’ vehicle was first observed at X and the last photograph of this vehicle was taken at X. This means a duration of XX took place and there was no sign of the driver returning to the vehicle. We assert that we have therefore acted correctly and waited the full amount of time. Minster Baywatch assert that all of the above points do not detract from the fact the driver of the vehicle did not have a valid permit clearly on display at the time of contravention and also exceeded the site grace period. Due to this they were in breach of the site rules as they failed to adhere to the contract they entered into upon entering the site.

For the above reasons, Minster Baywatch assert that the parking charge was correctly issued to Mr X’ vehicle and his appeal was correctly declined.

Coupon-mad

The photographs in which Mr X has provided show the signage at night, however the parking charge in this case occurred in the early afternoon when it was light. This is therefore irrelevant.

That's a nasty disingenuous lie, if I am understanding your situation properly. If the car was PARKED in the dark then it matters not when the employee ticketer wanders along hours later and issues a PCN in daylight! Your photos are the only relevant ones to how the signage looked in the same light as the time when the driver parked. Wholly relevant.

My tips on responding to an evidence pack are:

- keep it concise.

- do not argue against the Beavis wall of text let it lie.

- in your first sentence, tell POPLA that these are your comments on the evidence pack and not an attempt to add any more by way of appeal, therefore you require that the Assessor reads and takes into account these observations on the 'evidence'...

Mr_Stroopwafel

Thanks very much for the reply, I've added in that point.

Here's my rebuttal, is it best to send sooner rather than later or does it not matter as long as it's within 7 days?
___________

These are my comments on the evidence pack and not an attempt to add any more by way of appeal, therefore I require that the Assessor reads and takes into account these observations on the 'evidence'. (Please note Minster Baywatch refer to point 1 of my POPLA appeal as “point a” and so on.)

1. “responding to point k, we refer to the Other Evidence section of this document where it can be proven the full 20-minute observation occurred before the parking charge was issued to Mr XX’ vehicle.” Pg.18

This is incorrect – the earliest photograph is time-stamped X – therefore Minster Baywatch have provided no evidence that the vehicle was parked on the site before this time, or for any longer than minutes seconds, as the photo shows the charge had already been issued at X
They highlight an “observed from” time shown which appears only to be text on a computer system, there is no visual proof of the vehicle’s presence at this time. In any case the observed time on this system is still only X (<20 mins)

2. “Responding to point b, we refer to the original representations section of this document which shows we followed all rules in accordance with POFA… Once this clarification was received, we then registered Mr XX’ appeal. All of this process was done correctly,” pg.18

Minster Baywatch are attempting to hold me liable as keeper of the vehicle for this parking charge and must rely on POFA to do so. They have however provided no evidence that POFA was followed. They have not “followed all rules in accordance with POFA” at all, the process was not “done correctly” as they have still not complied with the requirements laid out in Schedule 4 of POFA to hold me liable as keeper - no Notice to Hirer or Notice to Keeper has ever been issued.

“Regarding point c, Minster Baywatch again refer back to the discussion between ourselves and Mr XX where he clarified himself as the Keeper of the vehicle and we received his authorisation to register his appeal based on this. Because of this, this statement is again incorrect.” Pg.18

The emails included in original representations and referred to on page 18 of the operator’s evidence are simply clarifying that my original appeal was as keeper, since I was the hirer and keeper of the vehicle at that time, and do not in any way mean the requirements of POFA Schedule 4 have been met and liability to the keeper has been transferred. No admission as to who was driving or signature from the driver has ever been made (which is not a requirement for the keeper to appeal as Minster Baywatch state in their evidence).
Please also note that, as quoted in my original appeal, ex-POPLA lead adjudicator Henry Greenslade clarified that responding to a notice to driver as Hirer/Keeper does not mean that person can legally be held responsible without schedule 4 of POFA being met nor can any assumption be made as to the identity of the driver.
 
3. “The photographs in which Mr XX has provided show the signage at night, however the parking charge in this case occurred in the early afternoon when it was light. This is therefore irrelevant.”

This is not the case as the signage must be visible during all hours of parking enforcement as stated in BPA CoP appendix B. If signage is not visible at the time when a vehicle may be parked it does not matter if an employee then issues a charge in the daylight. This is wholly relevant.

“We assert that these signs are very high contrast and abundant which are then lit up by the vehicle headlights when a driver enters the site. This makes the signs visible and easy to see, therefore how dark it is does not affect drivers being able to see them.”

Minster Baywatch have provided no photographs contrary to mine showing the signs during the hours of darkness or in headlights to demonstrate this statement, regardless of the time the ticket was issued this means they have failed to show their signage meets the terms of the BPA CoP appendix B.

4.
The copy of the contract provided appears to be two different documents edited together, this can clearly be seen in the difference between the background of the main body of the document and the signature section so cannot be accepted as valid evidence, as pictured above. Secondly, it does not show the landowner or occupier of this specific parking spot, therefore Minster Baywatch have still failed to show they have authorisation from the landowner to operate here. Terms are also redacted and the text is not clear at all.
For these reasons it cannot be accepted as valid evidence, and previous POPLA appeals have been upheld on this basis.

5. “Responding to point j [9], we refer back to our previous point that Minster Baywatch work under contract law therefore this statement is irrelevant.”

This refers to the point regarding the Breach of Consumer Contracts Regulations 2013. However as stated in the appeal, charging for use of parking spaces is specifically stated as covered by the Regulations, as shown in the EU Guidance behind the original Directive upon which the UK Law is based where it is stated: ''For example, renting a parking space...is subject to the Directive.''

The_Deep

What a waste of everybody's time. No-one has lost a penny, no-one has been deprived of their parking space. I hope OP counter claims, they hate that.

Mr_Stroopwafel

The_Deep wrote: »

What a waste of everybody's time. No-one has lost a penny, no-one has been deprived of their parking space. I hope OP counter claims, they hate that.

100% agree, absurd situation. If it comes to that, I certainly will!

Mr_Stroopwafel

I've emailed my rebuttal to popla as a Pdf - just awaiting a confirmation they have passed it onto the assessor. What's the best thing to put into the box on the POPLA site or should I leave it blank and let POPLA write once it's added?
Was just going to write something like the following:
"I have submitted my comments via a pdf document to info@popla.co.uk sent on xxx and requested this be passed onto the assessor in full for their consideration."

Coupon-mad

Yes, do that.

Mr_Stroopwafel

Quick update - Don't expect to hear back from POPLA yet but do you think the Management agency should have replied by now as it's been over 2 weeks?
They were normally quick to reply - worth sending a "gentle reminder" email ?