Help please - someone to read draft POPLA appeal before I submit

ShazP

Hello,

I've been working on my POPLA appeal after asking advice here a while ago. The 28 day deadline is approaching. Could someone please read my draft appeal below and see if it's OK? I've cribbed from others as suggested before. There are two points highlighted in red: the first is something I copied but I don't understand what it means so not sure if I should keep it. The second is regarding signage - see my NB. Some points to note: driver was admitted at first appeal stage. Summary of situation: parking ticket was displayed in windscreen at train station but had turned vertically (from the horizontal position it was left in when placed in the windscreen in the morning). Thank you in advance for any help. Appeal:


1. No Breach of Byelaw

The Penalty Notice mentions 'This cark park is regulated by the terms and conditions of parking displayed at the car park in accordance with Railway Byelaw 14'.

There is no Railway byelaw known as: 'Breach code 1: Failing to display a valid ticket or voucher (including e-tickets)'. If Indigo attempt to hold me liable under byelaws, despite the fact it's not relevant land (no POFA keeper liability possible) then breach of byelaws, too, 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''.

As far as 'appropriate charge at the appropriate time is concerned', I submit that a parking ticket valid on the date mentioned in the penalty notice had been purchased and displayed in the windscreen (a copy of the same is enclosed).

Hence no contravention of the byelaw has taken place.




2. No Authority

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. I do not believe that Indigo has landowner authority and, as such; the operator has not met the requirements of this section of the BPA Code of Practice.

Section 7.1 states “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). The written confirmation 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 (or their appointed agent) requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”.

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


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.

As Indigo do not have proprietary interest in the land, I demand that they produce an unredacted copy of the contract with the landowner that authorises them to offer contracts for parking in their name, issue Parking Charge Notices and take legal action in their name for breach of contract. I do not believe they have such authority.

Indigo has no title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.



3. This charge is an unenforceable penalty. Binding case law, including the ParkingEye v Beavis case, support this position

The £100 charge is called - in the heading on the PCN - a 'penalty', yet Indigo describe it vaguely as a charge under contract. It is trite law that a contractual charge cannot be a 'penalty' and indeed, it was held in the Beavis case at the Supreme Court, that a punitive charge from a non-landowning claimant would be unenforceable. The only way an actual 'penalty' fine could be imposed and pursued would be via Magistrates' court in a case properly brought only by the landowner, the Train Operating Company (TOC) under byelaws.

This charge from a company called 'Indigo' is neither one thing nor the other. No authority within contract law, nor the Beavis case, nor the wording of any byelaw supports it.

The only contract entered into was between the driver and the TOC when the daily parking ticket was purchased. That is a simple financial consumer contract and it was concluded upon payment and supply of the ticket. Such a contract turns upon the information supplied at the point of purchase because that is when the terms are agreed. That contract did not state that a driver could be liable for £100 penalty, nor that further terms (on signage) could apply to the car as it was parked. That contract was agreed with the TOC and not a company called 'Indigo' and any terms they try to impose later come far too late.

The well-known Court of Appeal cases in Thornton v Shoe Lane Parking and Olley v Marlborough Court provide binding authority for this view.

Neither were overturned nor impacted at all by the ParkingEye v Beavis case which turned on a unique set of circumstances which saved the £85 charge in that case alone, from being caught by the penalty rule, which the Supreme Court Judges held was a rule which was undoubtedly 'engaged' in such a case and would 'rarely' not apply. Their decision related only to one car park/one set of signs/one set of unique circumstances and does not supersede any other contract law authorities.

Indigo are arguing I was bound by unknown added terms creating a contractual charge dressed up as a penalty, yet this £100 'charge' was not a term imposed by the TOC with whom I had my parking ticket contract. A contractual term cannot be relied upon that is only communicated after conclusion of a payment/contract, as that is too late to be incorporated into the prior agreed terms.

Denning LJ in Thornton v Shoe Lane Parking [1971] 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'' and that the contract takes place when the payment is made (in this case, when I bought the ticket).

Olley v Marlborough Court Hotel [1949] 1 KB 532 is the applicable and binding case law supporting the contention that any other terms come 'too late' if they are only known of afterwards: - Denning LJ held that a clause a consumer can only learn about after the contract was allegedly formed was too late to be incorporated into the contract: ''The first question is whether that notice formed part of the contract. ... The hotel company no doubt hope that the guest will be held bound by them, but...the ticket comes too late...''

The ticket was supplied without reference to any £100 charge risk when purchased and I reasonably believed that the surprise and very unwelcome 'charge' that Indigo tried to impose after the event, would have been cancelled at first appeal stage when they saw I had purchased and displayed in the windscreen a valid ticket. To continue with this 'charge' despite proof that the byelaws were not breached and the driver had a genuine ticket to park in a pre-agreed contract with the TOC, leaves Indigo no excuse for their pursuit because clearly the TOC cannot and will not, under these circumstances, prosecute me under the byelaws. And that was Indigo's excuse/rationale for the charge.

Indigo have no valid reason to 'offer' for a driver to settle for £100 to avoid facing a real penalty claim at Magistrates Court because they know the byelaws were not breached by a genuine paying ticket holder. Indigo also know that their own signage was so unclear and wordy as to be unreadable even if the TOC had directed me to read those terms, when I bought my permit (and the TOC did not inform me that any further terms applied other than were stated on the parking ticket).

The sum of £100 is not communicated to drivers using this car park at all, let alone clearly and unambiguously, so it falls foul of the findings of the Supreme Court Judges in ParkingEye v Beavis, where the prominence of the £85 charge depicted on a simple sign in contrasting large lettering, was key. If a driver can't read the sum of the parking 'charge' (the £100 in this case) before parking - because the sign is wordy and unremarkable, the charge not prominent and the words too small to read from a driver's seat - then they cannot have agreed to it. This is true even if POPLA believe that terms on a sign can be incorporated later into an already-concluded contract (which I submit are terms which come 'too late').

The well-known and oft 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.’



4. The signage was not readable so there was no valid contract formed between Indigo and the driver


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 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 (in this case £6.80) already paid.

Indigo state that the terms and conditions of parking are displayed at the entrance to the car park. The keeper made a special visit to the car park to ascertain the positioning and quality of the sign. Whilst the sign is displayed to the left of the entrance to the car park on the north bound side of the station, it is just at a point where a driver coming from the east comes under a railway bridge and must turn sharply to the right to enter the car park. The road is very busy especially during peak hours with double yellow lines (see photos) leading into the car park on both sides. Further, the signage is set back from the road into the surrounding bushes in such a way that a driver could only see it at the very last moment as entering the car park on the north bound side. The entrance narrows drastically to only single car access immediately after the sign if positioned. This makes the signage difficult and in particular unsafe to take account of. The accessibility of the sign is clearly a breach of health and safety regulations. The car park is busy and having to take eyes off the direction of travel to actually read the sign breaches the BPA code of practice.

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 Indigo’s terms and conditions' 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.

The sign also breaches another point in Appendix B, requiring the sign to identify who the car park is ‘managed by’. This is not optional information, but is clearly marked as ‘required’. (nb indigo logo is displayed at bottom of the sign but can’t see even in my photographs if the words ‘managed by’ are used anywhere – should I keep this in?)

The BPA code of practice also states (18.3) 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. The badly positioned sign is the only access point for this information from where the driver parked the vehicle on the day in question and walked across the car park over the bring to the south bound side in order to purchase the parking ticket at the railway ticket office (see photos). The terms and conditions referred to in the Penalty Notice are visible only on this badly positioned signage.


That completes my case for appeal. I request that my appeal is upheld.


I would also like to formally request to see all evidence presented by Indigo regarding this appeal and the opportunity to refute any evidence submitted by Indigo regarding this appeal.

To quote Henry Greenslade; a highly respected, longstanding lead adjudicator of parking ticket appeals across the board (Council statutory tribunals as well as private parking issues via POPLA); with a reputation for fairness and high integrity:

From the Final Report:

''At POPLA, Assessors consider the evidence produced by each party, all of which evidence the other party has the opportunity to see and comment upon.''

and from page 15 of the POPLA Annual Report 2015:

“…it is certainly a basic principle of a fair appeals service that each party is given the opportunity to see the other party’s case and to comment upon it. This is the position at POPLA. Appellants should obviously receive the operator’s evidence in its entirety.''

Coupon-mad

The sign also breaches another point in Appendix B, requiring the sign to identify who the car park is ‘managed by’. This is not optional information, but is clearly marked as ‘required’. (nb indigo logo is displayed at bottom of the sign but can’t see even in my photographs if the words ‘managed by’ are used anywhere – should I keep this in?)

Yes I would keep that in.

You could add point #5 from here:

https://forums.moneysavingexpert.com/discussion/comment/71021610#Comment_71021610

''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.

and a point called 'No owner liability' from here (same poster/thread, different appeal point):

https://forums.moneysavingexpert.com/discussion/comment/71020167#Comment_71020167

You will find your case is adjourned by POPLA right now:

https://forums.moneysavingexpert.com/discussion/5519924

So don't hold your breath once you have submitted your final PDF appeal under 'OTHER' on the POPLA webpage!

ShazP

Thank you so much. I really appreciate the advice. Could never have got this far without advice from here so thank you

pappa_golf

see your other thread , all cases via POPLa involving bylaws are being put on hold


see https://popla.co.uk/


"POPLA has decided to adjourn all cases on which the parking operator has asked the motorist to make a payment in respect of alleged breach of Byelaws. This is following complaints to POPLA and ISPA that POPLA has no authority to look at these appeals. We are considering our position and will make a further statement in due course. We do not anticipate the cases to be adjourned for more than two months from 1 September 2016. Parking operators should not pursue payment while the cases are adjourned. During this period, motorists must still submit their appeal within 28 days of the date of the POPLA code if they want POPLA to consider their appeal. If you have already submitted your appeal you do not need to take further action. "


if popla decide that they are actually bylaw cases , then under bylaws there is no offence of failing to display ticket , and the case must timeout at 6mths

ShazP

Thank you so much. I've been so busy working on reading through all the stuff and preparing over the last month or so that I hadn't realised the point about adjournment until today. Good news all round I guess.