Help with ECP PCN POPLA Appeal

Pottig

Hi all!

I have today (5th September) received a PCN from Euro Car Parks as the keeper of a car which was on a car park on Tybridge Street in Worcester for 2 hours, 31 minutes (first 2 hours free, 60p for 1 hour, £1.20 for 2 etc.). The fine is for £75 with the possibility of it being £45 if I pay up in 14 days blah blah blah.

Anyway, I have been reading all over this forum about submitting a POPLA appeal and what are the best points to raise. I have already submitted the first appeal to ECP, making sure to not name the driver at the time and whatnot. It was relatively short and I made sure to ask for a POPLA #. But I wanted to get you guys' expert help on the second appeal.

I took a look at one of the more recent successful appeals from a similar situation (albeit with a different car park company) and shamefully picked out some of the points that the appellant made. I will include images of the redacted PCN, and I'm probably going to go down to the car park in question tomorrow to get photos of the signage there if you think that is necessary.

Firstly, could you tell me if the points I have are useful/relevant? Secondly, are there any I am missing? And lastly, how can I elaborate on them when I come to write up the POPLA appeal in full?

The points I have are:

1. No standing or authority to neither pursue charges or form contracts with drivers. ECP 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.

2. No genuine pre-estimate of loss.

3. Unreasonable/Unfair Terms. The charge being claimed by ECP is a punitive sum. 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.

4. The signage was not compliant with the BPA Code of Practice and was not seen before parking - so there was no valid contract formed between ECP and the driver. (I need to get photos of the signage on the car park yet).

5. As you can see on the PCN I have received, ECP have included the typical photographs of the car's licence plate, but the photographs do not contain timestamps that can realistically link the car to the period the charge relates to. Rather, the entry and exit times/dates of the car are inserted manually into the letter underneath the photographs.

Apologies if you feel like this has been asked before, but I have been browsing the forum all night looking at solutions and have been lead to this point.

All help is appreciated. If any more information is needed just shout!

EDIT: Seems I can't include images as a new user if anyone has a workaround for that let me know

Umkomaas

GPEOL was blown out of the water almost 12 months ago. All the PPC needs to do to get POPLA to reject your contention is type in one word 'Beavis'.

You need to research the following POPLA appeal points .....

PoFA2012
NTK errors
CRA2015
CoP breaches
BEAVIS dismantling
http://forums.moneysavingexpert.com/showpost.php?p=71071381&postcount=15

...... the majority of which appear in almost every winning POPLA appeal. Give us another, fuller draft to critique.

Coupon-mad

2. No genuine pre-estimate of loss.

As Umkomaas said - NOPE!

Why not just read other ECP cases won at POPLA very recently? Like this one you will surely have seen already, because he won the other day an the thread was replied on just hours ago, earlier today. We always assume people who post a thread have firstly read the threads and posts from today:

https://forums.moneysavingexpert.com/discussion/5485793

Easy enough to win at POPLA v ECP. Include the new added point, about the 'individual not being shown to be the driver/person liable' as linked yesterday in the end of the 'POPLA Decisions' thread about a case won v ParkingEye. It is important to raise and put before POPLA, that there is no evidence of who was driving - and to drum that point home using POPLA's own words, as shown in the thread linked by the recent winning poster in 'POPLA Decisions'.

Pottig

Here's my draft POPLA appeal:
_______________

Re: Euro Car Parks PCN, reference code:
POPLA code:

As the registered keeper of the vehicle in question, I find the fine issued to be unfair and punitive. I submit the points below to show that I am not liable for the parking charge:
1) The Notice to Keeper (NTK) is not compliant with POFA 2012 – no keeper liability.
2) The Parking Charge Notice sent to myself as the Registered Keeper incorrectly interprets the Protection of Freedoms Act 2012
3) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
4) No landowner authority
5) Inadequate signage in car park
6) The charge breaches the CRA and is not supported by the ParkingEye vs Beavis decision

1) The Notice to Keeper is not compliant with the POFA 2012 - no keeper liability
As this was a Pay/Display car park, the Notice to Keeper (NTK) has to set out the position clearly in terms of 'describing the parking charges due' which remained unpaid as at the day before the date of issue of the PCN. Due to this timeline stated in Schedule 4, these 'parking charges due' can only be a tariff the driver should have paid, because no higher sum was 'due' before the PCN was even printed!
The NTK issued to me offers very little information in this regard. There is the claim that the vehicle stayed for a certain amount of time on the given date and that the contravention was ‘no valid pay and display/permit was purchased’. This does not create any certainty about the Operator’s terms, and raises the questions of what the hourly rate tariff actually was, whether the driver paid too little or not at all, or if the tariff was paid in full but with the wrong car registration. This Operator has the technology to record car registrations, to collect/record payments and to take photos of cars arriving and leaving, so it would be reasonable to assume that they are able - and indeed are required under the POFA - to state on the NTK the basic requirements to show a keeper how the 'parking charges' arose and the amount of outstanding parking charges (tariff) as at the day before the PCN was issued.
These are the omissions:
''9(2)The notice must—
(b)inform the keeper that the driver is required to pay parking charges in respect of the specified period of parking and that the parking charges have not been paid in full;
(c)describe the parking charges due from the driver as at the end of that period, the circumstances in which the requirement to pay them arose (including the means by which the requirement was brought to the attention of drivers) and the other facts that made them payable;
(d)specify the total amount of those parking charges that are unpaid...'
NTK is not compliant, for example re this requirement:

The NTK specifically fails on all counts.
2) The Parking Charge Notice sent to myself as the Registered Keeper incorrectly interprets the Protection of Freedoms Act 2012
Paragraph 9(2)(f) of The Protection of Freedoms Act 2012 state:

‘...warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given.’
The PCN issued by the Operator states the following:
‘You are advised that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This Notice is given to you under Paragraph 9(2)(f) of schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act.’
Since Euro Car Parks are misquoting the Protections of Freedoms Act 2012 then they are not complying with said Act and as such cannot rely upon it to hold me liable as the registered keeper.
3) The operator has not shown that the individual who it is pursuing is in fact liable for the charge
The burden of proof rests with the Operator in both showing that I, the appellant and registered keeper, has not complied with terms in place on the land and showing that I am liable for the parking charge issued. As the registered keeper of the vehicle, it is my right, under Schedule 4, to not name the driver and still not be lawfully held liable.
There is no ‘reasonable presumption’ in law that the keeper of a vehicle was the driver at the time of a charge being recorded. Operators should never suggest this. Furthermore, a failure or refusal to name the driver on the part of the recipient of a parking charge notice under Schedule 4 does not mean that the recipient accepts they were the driver at the material time. A keeper has no 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.

Furthermore the paramount importance of compliance with POFA 2012 was confirmed by Henry Greenslade, the previous POPLA Lead Adjudicator, in his 2015 POPLA Report: ''If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''
4) No landowner authority
Section 7 of the BPA CoP states that an operator must have the written authorisation of the Landowner, if the parking company does not own the land, which Euro Car Parks do not.

Paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put Euro Car Parks to strict proof of the contract terms with the actual landowner and I would also point out these mandatory requirements, which a vague ‘witness statement’ will not prove:

7.3 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 do not believe that Euro Car Parks have a contract with the site landowner which meets all the requirements above and even if they do, the contract breaches the EA 2010 if indirect discrimination arises as a result of any inflexible point of policy.
5) Inadequate signage in car park
The British Parking Association CoP requires that terms and conditions on car parking signs must be clearly readable. The signs around the car park in question are extremely high up and easily missed by a driver who will have their eyes on the road as they are driving. Furthermore, the text on the signs is so small as to be reasonably called illegible. Also, the pay machines on the car park are difficult to use and errors in entering a registration number are easy to commit.
In this regard, Euro Car Parks have violated paragraphs 18.4 and 18.5 of the BPA CoP which state the following:
18.4 If you intend to use the keeper liability provisions in Schedule 4 of POFA 2012, your signs must give ’adequate notice’. This includes:
• specifying the sum payable for unauthorised parking
• adequately bringing the charges to the attention of drivers, and
• following any applicable government signage regulations
18.5 If a driver is parking with your permission, they must have the chance to read the terms and conditions before they enter into the contract with you. If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to leave, as they will not be bound by your parking contract.
The signage used by Euro Car Parks does not adequately bring the car park’s charges to the attention of the driver, as put forth in paragraph 18.4. Furthermore, signage upon entrance to the car park is not visible from the one-way main road, and so drivers are forced to pull into the car park before they can read the terms and conditions referenced in paragraph 18.5.
6) The charge breaches the CRA and is not supported by the ParkingEye vs Beavis decision
It appears that a partial registration number may have been recorded, either by inadvertent error of the driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. It has already been established that the signage on the car park in question is unreadable from a driver’s perspective. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position.

At 47 in the Court of Appeal Judgment in 'ParkingEye Ltd v Beavis' it was held:

''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times,endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ''

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty;’ ''

At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine:
''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination.

At 32, it was held that a trader, in this case a parking company:
''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge out of all proportion to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man, regardless of whether in the small print, the sign may have said somewhere 'enter the full registration'. A huge charge arising under the excuse of such a minor term is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 (the CRA, enacted after the Beavis parking event) supports a consumer's position in at least two ways:

- the signage failed to make any obligation and/or risk of penalty prominent, to enter the FULL VRN. The CRA states: ''A trader must ensure that a written term of a consumer contract or a written consumer notice is transparent. To be transparent it must be expressed in plain and intelligible language and be legible...any subject matter terms must not be hidden in any small print otherwise the price and the subject matter terms will be assessed for "fairness". ''

- Under Schedule 2 'Consumer contract terms which may be regarded as unfair' it includes: ''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

As this charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which turned on completely different facts and related only to that car park with its own unique complexity of commercial justification.

This concludes my POPLA appeal.
Yours faithfully,
(registered keeper’s name)

________________
I was also wondering, if it's necessary to give photographs to POPLA as evidence?

Thanks for your help guys. Much of this is adapted from other successful POPLA appeals.

Coupon-mad

The PCN issued by the Operator states the following:
‘You are advised that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This Notice is given to you under Paragraph 9(2)(f) of schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act.’
Since Euro Car Parks are misquoting the Protections of Freedoms Act 2012 then they are not complying with said Act and as such cannot rely upon it to hold me liable as the registered keeper.

I would remove that bit, lose point #2 entirely, because I don't agree that part of the POFA isn't properly stated. It seems to me that ECP have improved their PCN wording recently and I would not quote a paragraph where they've got it almost spot on (apart from the word 'from' which POPLA won't be clever enough to spot).

Your point #1 is more relevant - certainly they've failed to state the 'parking charges which remain unpaid', so even without point #2, your point #1 makes it clear why you consider the NTK isn't compliant.

And your point #6 needs some serious proof-reading and a bit of editing/pruning because you have stuff like this which is not true in your case:

6) The charge breaches the CRA and is not supported by the ParkingEye vs Beavis decision

It appears that a partial registration number may have been recorded, either by inadvertent error of the driver, or by failure of the operator's own keypad, or failure of the signage to make the full VRN a clear 'obligation' with risk of a penalty. It has already been established that the signage on the car park in question is unreadable from a driver’s perspective. No evidence has been produced either way by this operator as to the cause of the issue and it is not disputed by any party that there was certainly no attempt to avoid payment, which was made in full.

Edna_Basher

As C-M points out, ECP have recently improved the wording of their Notices to Keeper (having received "expert" advice from Gladstones); therefore you can't rely on simply pasting the POFA wording from other not-so-recent ECP threads.

Poor signage is always an important point in any ECP appeal - ECP may even include a couple of pictures of their signs in their rejection letter, so you can add more detail when the time comes.

beamerguy

Edna_Basher wrote: »

Notices to Keeper (having received "expert" advice from Gladstones)

Edna, assume that comment is a pun ?

Expert advice from Gladstones ???? just imagine trying to sell your house via Gladstones ... what a joke.

Edna_Basher

I put the word "expert" in inverted commas for a reason

I don't know how much they paid Gladstones but ECP's Notices to Hirer are still rubbish.

Pottig

I have amended my 6th point (now my 5th since I eliminated my second point) and it goes:

5) The charge is not supported by the ParkingEye vs Beavis decision
In addition to the above points, my appeal is supported, not undone, by the ParkingEye-v-Beavis decision.

The reference in the Beavis case, to the need for clear, unambiguous terms and the parking charge and restrictions being copiously displayed and in 'large lettering' assists my position. Each case must turn on its own facts and much depends upon how an operator presents its own case because every car park and every charge and documents and dates and facts and interests, are different. In this instance, as has been established above, the signage in the car park is less than clear to someone upon entering the area, antithetical to the terms laid out by the Beavis case.

Similarly, the car park in question in the Beavis case was free. Distinctively, the car park that relates to this PCN from Euro Car Parks is Pay & Display. Hence, the parameters of each case differ significantly. The terms ruled in the ParkingEye-v-Beavis case cannot therefore be applied against the registered keeper in this instance.

Hopefully this solves the Beavis problem, but if you feel I should go deeper into the case to prove my point then let me know.