McDonald's & MET - almost a month later

Coupon-mad

Yes - perfectly normal - that's nothing and it's all template stuff, repetition, drivel about the Beavis case and/or the BPA CoP and dividers and covers sheets and photos. I've seen hundreds of evidence packs and I'm disappointed if they are under twenty pages, as it suggests the PPC haven't tried!

ParkingEye send 50 pages sometimes and this one from Care Parking is 45:

https://forums.moneysavingexpert.com/discussion/comment/71722750#Comment_71722750

Your job is to read the bluff & bluster and put some bullet point comments in within days (not restating your defence nor adding new evidence). This is evidence comments stage and once you scratch the surface you will expose the rubbish in those pages!

Tell us what you find.

cinereus

Coupon-mad wrote: »

Your job is to read the bluff & bluster and put some bullet point comments in within days (not restating your defence nor adding new evidence). This is evidence comments stage and once you scratch the surface you will expose the rubbish in those pages!

Tell us what you find.

Thanks! But within a few days?! That's going to be a big struggle, is it necessary?

Umkomaas

cinereus wrote: »

Thanks! But within a few days?! That's going to be a big struggle, is it necessary?

Miss the opportunity at your own risk. As in a court case, anything not refuted/rebuffed might be taken by POPLA as you not disagreeing with the claimant's assertions.

cinereus

Should I post the evidence pack here too?

And can you clarify what sort of tone I should be taking in the bullet points if I cannot merely restate my original representations?

Thanks

cinereus

First draft:

1. MET claim that a new POPLA code was issued “as a gesture of goodwill”. This is not a correct representation of what happened. In actual fact, the POPLA code was received on 22 September although the letter was dated 5 September. Nowhere on this letter was there any mention of a time limit for using the code or any expiry date. This is directly in breach of BPA Code of Practice 22.12.1 that states 1 states that "Within all Appeal Rejection Letters, and in order to comply with the EU ADR Directive, the following wording should be used; You have now reached the end of our internal appeals procedure. [Insert standard operator text to appeal to POPLA, including 28 day time limit for doing so, the POPLA verification code and the POPLA website address]”. At the time, both MET and POPLA were contacted on on premium rate lines and they said that, despite this noncompliance with the BPA CoP, they would not allow me to make any representations. MET claim that their “Notice to Keeper complies with the Protection of Freedoms Act in all respects”. This is not accurate.
2. MET claim that they “have the rights under PoFA to pursue the registered keeper”. This is not strictly true in this instance and they are reminded of the citations made in the representations under the heading “2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge”.
3. MET have been put to strict proof of Landowner Authority but have neglected to provide this as they decided not to provide a copy of their unredacted contract. They have not met the mandatory requirements of Paragraph 7 of the BPA CoP.
4. MET have said that the terms and conditions are “clearly stated on the signs prominently displayed at the entrance to and around the car park” making note that the “principle term” [sic] is repeated twice (actually, it is repeated once). However, contrary to this claim, the evidence they produce undermines their own case as it singularly fails to demonstrate that the signs are sufficiently prominent, clear or legible from all parking spaces and that there is sufficient notice of the sum of the parking charge itself. Again, attention is drawn to the specifics of POPLA decision 5960956830, POFA Schedule 4, Lord Denning's Red Hand Rule and Vine v London Borough of Waltham Forest [2000] EWCA Civ 106.
5. Regarding grace periods, MET have still failed to demonstrate the reliability of their timings despite a request for this to be shown. MET have also interpreted the BPA CoP incorrectly. The CoP allows time to read the signs before deciding to stay and park. In addition, the CoP allows a minimum ten minutes grace period to leave the car park. In this instance, the driver overstayed by a total of a mere 16 minutes according to the timings produced by the claimant. Allowing for points 13.2 and 13.4, this clearly falls within the BPA-authorised minimum grace period. The PCN is in breach of the CoP and should never have been issued. Regardless, de minimis should be applied in this case.
6. Under heading 6, MET misspell my name and appear to make the false claim that they need not comply with the BPA CoP Section B making no attempt to demonstrate compliance.
7. Under heading 7, MET curiously withdraw their claim that staff were not aware of the breakdown. Previously, they attempted to argue that this was not the case. Although they previously made false assertions about the breakdown and available evidence for this, they are now attempting to downplay this aspect of the representations. In actual fact, they are incorrect in claiming that I or the driver or the car got the vehicle running again. If they were to refer to their CCTV footage from the site on the day in question, they will have ample proof that this was not the case.
8. MET continue to claim that the charge is neither “extravagant nor unconscionable”. They however do not go as far to claim that punishing a driver for merely a few extra minutes dealing with an unforeseen breakdown is neither extravagant not unconscionable. It’s suspected that they would not be able to make this claim without any intellectual dishonesty.
9. MET seem to deliberately misunderstand the representations regarding the administration charge. They admit that passing on credit or debit card charges made by a bank or a card processing company would constitute levying an illegal surcharge. However, they simultaneously contract themselves by making the ludicrous argument that passing on an administration charge from a back office card processing company is fundamentally different to card charges from a card processing company. They also fail to demonstrate that the charge they do levy is in proportion to the charge from their provider and that they are not simply trying to extract additional profit. The simple fact is MET are in breach of maximum ceiling given in the BPA CoP as well as the Consumer Rights (Payment Surcharges) Regulations 2012.

Coupon-mad

That's good.

Might be too long for the portal character limit, if so do NOT submit it. Check first, see if it gets chopped!

If so, you will need to boil it down a bit because I think comments put in on the POPLA portal are more likely to be read than an emailed version (just from my experience). You can shorten the Act to 'POFA' and Code of Practice to 'CoP' everywhere, and use other acronyms like 'NTK' instead of Notice to Keeper, remove repetition etc.

This bit needs to be in point #2 not point #1:

MET claim that their “Notice to Keeper complies with the Protection of Freedoms Act in all respects”. This is not accurate.

Here you have a typo repetition:

This is directly in breach of BPA Code of Practice 22.12.1 that states 1 states that

BTW if they have shown NO proof of landowner authority, not even a Witness Statement or 'Agreement' then you will win!

Umkomaas

6. Under heading 6, MET misspell my name and appear to make the false claim that they need not comply with the BPA CoP Section B making no attempt to demonstrate compliance.

Not sure how the misspelling of your name and that they claim not to need to comply with Section B of the CoP come together here?

A mere typo in your name isn't likely to be a showstopper.

7. Under heading 7, MET curiously withdraw their claim that staff were not aware of the breakdown. Previously, they attempted to argue that this was not the case. Although they previously made false assertions about the breakdown and available evidence for this, they are now attempting to downplay this aspect of the representations. In actual fact, they are incorrect in claiming that I or the driver or the car got the vehicle running again. If they were to refer to their CCTV footage from the site on the day in question, they will have ample proof that this was not the case.

Was reference to this covered in your original appeal, or is it new evidence? If it's new, POPLA won't consider it.

9. MET seem to deliberately misunderstand the representations regarding the administration charge.

Again, as above, was this raised by you originally in your POPLA appeal?

See if others want to comment.

cinereus

Thanks for this guys...

Coupon-mad wrote: »

That's good.

Might be too long for the portal character limit, if so do NOT submit it. Check first, see if it gets chopped!

If so, you will need to boil it down a bit because I think comments put in on the POPLA portal are more likely to be read than an emailed version (just from my experience). You can shorten the Act to 'POFA' and Code of Practice to 'CoP' everywhere, and use other acronyms like 'NTK' instead of Notice to Keeper, remove repetition etc.

BTW if they have shown NO proof of landowner authority, not even a Witness Statement or 'Agreement' then you will win!

They showed a few pages of the contract but not the full unredacted version I requested.

Umkomaas wrote: »

Not sure how the misspelling of your name and that they claim not to need to comply with Section B of the CoP come together here?

A mere typo in your name isn't likely to be a showstopper.

Was reference to this covered in your original appeal, or is it new evidence? If it's new, POPLA won't consider it.

Again, as above, was this raised by you originally in your POPLA appeal?

See if others want to comment.

It's certainly not a showstopper or a legal point in any way and for sure I can cut it out, but it's representative of the lack of care they take in throwing this all together.

None is new evidence - all was mentioned either in the first or the second letter.

I'll leave it another day or so for further comments then submit it all.

Thanks again.

DollyDee_2

Quoted from your last paragraph - Item 9

"However, they simultaneously contract themselves by making the ludicrous argument that passing on an administration charge from a back office card processing company is fundamentally different to card charges from a card processing company. "

Should "contract" be "contradict"?

cinereus

Thanks for the help guys. I submitted the comments by email and they denied two days later with some gross misrepresentations of my claim. Guess nothing more to be done now...

The operator states that it issued the Parking Charge Notice (PCN), because the vehicle, “[remained] at the car park for longer than the stay authorised or without authorisation” at McDonalds Canning Town on 18 July 2016. The appellant states the operator has not adhered to the Protection of Freedoms Act (PoFA) 2012. He is questioning the operator’s authority to issue and pursue PCNs at the site. He advises that the signage is unclear. He says the PCN is an “unfair, unenforceable penalty”. He states the operator’s signs do not show that an Automatic Number Plate Recognition (ANPR) system is in use or what the data is used for. He believes the operator should have applied a grace period. He says the motorist was delayed in departing the car park due to the vehicle experiencing a break down. He advises the operator is applying a £1.50 surcharge for payment by card. The terms and conditions state: “90 Minutes Maximum Stay” and that “If you do not comply with the Terms and Conditions of Use, a Parking Charge Notice may be issued”. The operator’s case file includes photographs of the signage at the site clearly showing these terms and the amount of the parking charge at £100. The operator has also provided photographic evidence of the vehicle arriving at 09:43 and departing at 11:29, for a total stay of 106 minutes. Conclusion/Judgement For the operator to transfer liability for unpaid parking charges from the driver of the vehicle to the registered keeper of the vehicle, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. After reviewing the evidence provided by both parties, I am not satisfied that the driver of the vehicle has been identified. The operator is therefore pursuing the registered keeper of the vehicle in this instance. The operator has provided a copy of the Notice to Keeper sent. As the driver of the vehicle has not been identified, the Notice to Keeper will need to comply with section 9 of PoFA 2012. Having reviewed the evidence provided by the operator, I am satisfied that the Notice to Keeper has complied with the requirements of PoFA 2012. Therefore, I am satisfied that the operator can transfer the liability for the unpaid parking charge to the registered keeper of the vehicle. The appellant has questioned the operator’s authority in issuing PCNs. The appellant has questioned the operator’s authority to issue and pursue PCNs. Section 7.1 of the British Parking Association (BPA) Code of Practice sets out to parking operators that “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)”. This “must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for 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”. The operator has provided POPLA with an extract of the contract between itself and the landowner, a letter of authority and a system print-off, which in combination I am satisfied meets the minimum requirements set out by the BPA Code of Practice. The British Parking Association (BPA) Code of Practice, under section 18.1 states: “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be made aware of from the start. You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 continues: “Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. The operator has provided me with photographic evidence of the signage located around the site in question, including the entrance sign. I am satisfied that this signage, displayed throughout the car park, clearly states the terms and conditions of the site. As such, I am satisfied that the motorist had the opportunity to read and understand the terms and conditions before agreeing to the contract. The appellant has said that the PCN is an “unfair, unenforceable penalty”. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” Having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. Regarding the site being monitored by an ANPR system, the BPA Code of Practice, section 21.1 advises that “signs at the car park must tell drivers that you are using this technology and what you will use the data captured by the ANPR cameras for”. The photographs of the signage show they clearly display that the site is monitored by ANPR systems and states: “Patrols and/or automatic number plate recognition (ANPR) cameras monitor vehicle activity in this private car park” and that it “may be contact the DVLA to request the Registered Keeper’s details and send a Parking Charge Notice”. Therefore, I consider the operator to have sufficiently shown the site is monitored by ANPR cameras and explained the purpose of them. The appellant is also questioning whether the operator should have applied a grace period in this instance. The British Parking Association (BPA) Code of Practice section 13.4, regarding “Grace periods”, states that operator’s “should allow the driver a reasonable period to leave the private car park after the parking contract has ended…the Grace Period at the end of the parking period should be a minimum of 10 minutes". The appellant says the vehicle was delayed to due to experiencing a break down. However, no evidence has been provided to support this and no reason for the delay in departure has been given. Therefore, I cannot conclude that 16 minutes is a reasonable grace period in this instance. The appellant believes the amount of the PCN exceeds the maximum permitted by the BPA Code of Practice. However, I can see that the PCN and the signs both state the amount is £100. It appears that the appellant is referring to a surcharge for payment by card, but there is no obligation to pay by card and other payment methods are available. As such, the operator correctly issued the PCN and I must refuse this appeal. For clarity, any customer service issues regarding the way the operator dealt with the appellant’s initial appeal are outside of POPLA’s remit. We are an impartial appeal service, not a regulatory body.

Seems to wilfully miss the point. Whitewash?