Indigo ticket for not displaying season pass

lcfc48

Hi,


I have an almost identical situation to the one detailed here (forums.moneysavingexpert.com/showthread.php?t=5457390) whereby I received a penalty charge from Indigo at Northampton train station for not displaying a ticket when I'd purchased a season pass but just forgot to display it one day.


I submitted an appeal to Indigo before reading any of the other thread thinking it would be a simple thing to overturn as I could prove I had a valid season pass however they have obviously rejected the appeal.


Am I ok to submit a POPLA appeal just copying the exact wording above (albeit altering one or two bits that refer to the signage at that particular station) or has any regulations or anything changed since then that would require me to take a different approach?


Thanks

Fruitcake

You need to post your PoPLA appeal here, not expect the regulars to go looking elsewhere for an appeal that is split up over many posts. There is also a very valuable point in a post there that a Byelaw offence can only be decided by a judge that wasn't in the appeal.
Please read the POPLA Decisions thread and use the best bits from the most recent successful appeals.
It will also depend on whether you gave away the driver's details or not. There will be an additional appeal point if they don't know who was driving, not that it matters where Byelaws apply.

You need to string this out for six months since only the train operator can initiate court proceedings against the vehicle owner, and then only for trespass, and then only within six months of the date of the alleged incident.

PoPLA are putting Byelaw appeals on hold so it is very important that you put Byelaw in the heading so the assessor puts it on the hold pile. The longer it stays there, the more of the six months you will burn off.

Carthesis

As far as I know, there has been no change in the four months since that case that would invalidate that POPLA appeal.

There was/is a hold on railway Byelaw cases at POPLA at the moment as they try to decide whether they can, in fact adjudicate on them. As only the railway company can take the "owner" to court, and then only for trespass, then the entire event becomes statute barred after 6 months irregardless.

I'd be tempted to whack a POPLA appeal in, making it clear at the very top, in point 1, in big letters, that this is a Byelaws case, which will cause POPLA to put a hold on the entire process while they prevaricate. Then whatever the outcome, you've only got to play letter-tennis with various parties for 6 months from the date of the parking event until you can tell them it is now statute-barred and they can eff right off.

lcfc48

Thanks for the reply. I don't expect anyone to go searching around or write anything for me. I've looked through the forum and the other thread I mentioned is almost identical to my case. That was a successful appeal and the last post shows the whole appeal letter. My only question really is whether all the points detailed in that are still valid. If needs be I can copy and paste that in here but I provided the URL so somebody could look over it easily on there.


As for declaring who was driving, I simply stated that I'd received a ticket despite having a season pass and asked for photographic evidence (not knowing at the time that I'd forgotten to display it).

lcfc48

Thanks for the info Carthesis. I understand I have 28 days from the initial appeal letter which was dated 5th October so I shall be sending a POPLA appeal in next week.

Fruitcake

As before, please post your draft appeal here so it is seen in context of your initial post, not someone else's circumstances which may be different. That way it's much easier for the regulars than having to flit to another thread then come back here to post comments.

lcfc48

Fruitcake, below is the appeal that was used in the other case which I intend to use for my own 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 Ray Byelaw 14'.


There is no Railway byelaw known as: 'Breach code 1: Failing to display a valid ticket or voucher'. 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 is concerned', I submit that a valid season parking ticket valid on the date mentioned in the penalty notice had been purchased (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 bylaws.


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 bylaw supports it.


The only contract entered into was between the driver and the TOC when the annual season parking pass was purchased. That is a simple financial consumer contract and it was concluded upon payment and supply of the permit. 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 on a day-to-day basis every time the car 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 permit 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 permit).


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: (### can't post link ###) - 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 permit 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 was a genuine permit holder. To continue with this 'charge' despite proof that the bylaws were not breached and the driver was a genuine permit holder, authorised 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 bylaws. 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 bylaws were not breached by a genuine paying permit 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 permit).


The sum of £100 is not communicated to permit-holding drivers 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 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 already paid.


Indigo state that the terms and conditions of parking are displayed at the entrance to the car park. As the keeper, I made a special visit to the car park to ascertain the positioning and quality of the sign. The sign exists just at a point where a driver takes sharp bend to the left. Further, the signage is facing a direction such that the only way a driver could take notice of the signage is by turning their sight to a direction perpendicular to the direction of travel. This makes the signage difficult and in particular unsafe to take account of. The accessiblity of the sign is clearly a breach of health and safety regulations. The car park is busy and having to take eyes completely 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 the sign to identify who the car park is ‘managed by’. This is not optional information, but is clearly marked as ‘required’.


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. 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.''

lcfc48

As for point 4 and the signage, am I able to appeal on this point? Looking at Northampton train station on Google Street View, it appears the sign is at the side of the entrance road facing you in the direction of travel - not in a particularly difficult to read position as in the above case.


Am I best to leave this out?

Carthesis

Nah, i'd leave it in anyway.

It's your assertion that it's difficult to see, and it's up to them to prove otherwise.

lcfc48

Appeal has come back successful. Expected a bit of back and forth and threats of court etc. but done and dusted as quick and easy as that!


Thanks for your help.

Coupon-mad

Great stuff! I guess they dropped out?