POPLA Appeal - help needed

Delsbels

How do I open that link please coupon-mad, I've been searching for the marganne case and couldn't find the actual appeal x

Coupon-mad

This was marganne's appeal about a disabled person accused of overstay either side of a paid-for period of parking:

I am the registered keeper and I am appealing this parking charge from Parking Eye at Aire St, Leeds.

To protect the driver, they have not been named but the operator’s own photos show the Blue Badge on the dashboard.

The driver has severe mobility problems arising from terminal cancer and arthritis plus other medical issues and in fact they parked twice in making their best endeavours to make one machine work, then got back in the car and drove (within the car park, as they are so immobile) to the other machine to try that one instead. The machines at this car park were faulty and not disabled-friendly.

My appeal as the registered keeper is as follows:

1. No reasonable grace period allowed – delay at start was due to the P&D machine faults.

The P&D machines were at the opposite ends of the badly-surfaced car park and not easy for a disabled driver to walk to or get the technology to work. The driver reports that the first machine looked old and was hard to get to over waste land - and it was faulty.

At the first machine, in trying to purchase a P&D ticket, several attempts were made to input the registration, then the driver tried to pay but the machine failed, kept rejecting coins. The same thing happened with another driver and there was no option to pay by card or phone. The other driver kindly offered to exchange the driver’s coins as he had to do the same for himself. Whilst he was gone the driver tried phoning the number PE supplied for booking extra parking time. It was an automated call and kept asking the driver for the reference number at the top of the PCN letter (i.e. to pay a PCN only).

There was nothing about £100 on the machines and the wording was almost illegible.

<PHOTO>


But after failed attempts by two drivers to use it, this machine displayed on screen ‘NOT IN USE’ – see next picture:

<PHOTO>

You can also see that the time on the machines does not match the time the ANPR camera is recording. The machine appears to show 11.05am (hard to read) but the ANPR timing alleges the car did not even drive in until after 11.09am, let alone the time taken to then drive round and park and get to the machine and try to make it work.

Considering all of that occurred before the driver stood there and took this opportune photo to prove the machine was faulty, it seems that this machine must be some 20 minutes or more ‘out’ with the ANPR. The ticket (now thrown away as the driver had done nothing wrong) was unexpired as the car left which was not after 5pm, as the ANPR timer shows it on the PCN. Either the machines or the ANPR had the wrong time - and not just by a few minutes, a vast difference - so it would be impossible to conclude the driver ‘overstayed’ under these circumstances.

So, that was the first machine only. The driver who did everything reasonably possible to pay. The driver had to give up with that machine, hobble back across the waste land and get into the car and drive to a new space and re-park at the other end, to try the second machine instead. The other driver returned and both tried to pay for 5 hours. The driver of my car put in £7, which is more than the tariff as they could not read the writing and did not know the machine would only dispense a 5 hour ticket.

It was very difficult to follow the illegible, dark & scratched/faded instructions.

The British Parking Association code of practice 13.2 states: ‘’You should allow the driver a reasonable ‘grace period’ in which to decide if they are going to stay or go. If the driver is on your land without permission, you should still allow them a grace period to read your signs and leave before you take enforcement action. ‘’

13.4 states: ‘’You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action. If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.’’

The period between entry and buying a ticket is in line with the extreme difficulties caused by both machines. Also in view of the mobility problems of the driver, which is also covered by the BPA CoP which correctly observes that disabled people may take ‘much longer’ to access machines.



2. No keeper liability – no adequate notice of the parking charge and this was not one single period of parking. Also, the ‘parking charges that remained unpaid’ were not described.

The operator is trying to hold me liable under the POFA Schedule 4 but there was no adequate notice of any £100 charge, you can see from the machine photos that you can only just make out a tariff but there is nothing about £100 and there were no clear signs near the places the driver parked which was waste land and any other terms were too high to read or obscured.

Secondly, Sch4 says the PCN MUST relate to one ‘single period of parking’, yet in fact the driver was forced to drive around and re-park at the far end of the car park near a second machine, to pay.

Thirdly, the NTK fails to ‘describe the parking charges that remained unpaid’ (tariff).



3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any 'site agreement' or 'User Manual' setting out details including exemptions is key evidence to define what this operator is authorised to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name.

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorised can give rise to a charge and of course, how much the landowner authorises this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance: ‘’7.2 If the operator wishes to take legal action on any outstanding parking charges, they must ensure that they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.’’

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.



4. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself at the machines.

There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case. The terms on the machine were unreadable and the signs are not the ‘brief & prominent’ signs in the Beavis case.

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:

http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''. ''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, placed high on a wall or pole, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective & height, you would have to stand right in front of it and still need a magnifying glass, for a disabled driver to be able to read any terms.

Under Lord Denning's Red Hand Rule, the charge should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in the same lighting conditions) how their signs appeared on that date, at that time, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat - and at BOTH P&D machines - not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.




5. The contravention on the PCN did not occur.

The PCN says that the driver failed to purchase sufficient time/underpaid a tariff. But it seems from the machine’s faded instructions that the maximum parking time (unbeknown to the driver) was only five hours. So it cannot be said that the PCN was properly given because it would not be possible to purchase extra parking time at this car park, beyond the £X paid.





6. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon, POPLA must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous POPLA Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. [...] If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Well Parking Eye have not passed due to the non-compliance with the POFA as shown in point #2. Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA. This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. As such, I must allow the appeal on the basis that the operator has failed to demonstrate that the appellant is the driver and therefore liable for the charge. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''





7. The charge is a penalty, breaches the CRA & is not saved by ParkingEye v Beavis

This situation is an 'ordinary' contract, a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a faulty set of machines 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 contracts with a transaction and tariff: ''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 for the time actually parked and the driver left before expiry of the ticket - is an unfair penalty to the mind of any reasonable man. 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: - 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.




8. The ANPR signs (if any) fail to state how the data will be used

The driver had no idea that their total stay, including two periods of parking and attempting to use two old machines in a waste-land area of the car park, would be calculated from the moment they drove in. This is a BPA CoP breach as well as an ICO breach and means the driver could not make an informed decision.

They were relying on the P&D ticket and left the site long before it expired (whether you go by the ANPR time or the different time on the machines, the ticket was not expired). As there are no signs to explain otherwise, the ANPR system cannot secretly calculate the time from entry from the road.

I've highlighted a few things in red which were specific to that case alone.

Delsbels

Thanks coupon-mad, I'll go through all these pointers and tweek my draft. Final hurdle in sight!

DollyDee_2

https://www.google.co.uk/maps/@54.8914366,-2.9305738,3a,75y,343.74h,89t/data=!3m6!1e1!3m4!1sdAXzI1aUCBQREETBbz-VvA!2e0!7i13312!8i6656!6m1!1e1?hl=en

Is this the car park - I can see English Gate Plaza but I can't see "North Car Park" on the signage. The entrance signage is absolutely dire.

Delsbels

Yes thats the one DollyDee, I've been looking for more images. Ive been poorly so haven't been to take photos.

Delsbels

Ive just had a look at the popla website to start my appeal (whats with all those questions?) where do I attach my appeal, there seems to be plenty boxes related to different questions but all with a max of 2000 words? DO I attach it as my additional info (a PDF file) if so, what info needs to go into the boxes relating to the questions? Am I being really stupid? I just don't want to do this wrong!

DollyDee_2

Copied from a post by Umkomaas:

"You will need to convert your document to a .pdf file and attach it to the POPLA online appeal window, submitting it under the 'Other' reason for submission. Put words to the effect 'Please see .pdf file for POPLA reference number xxxxxxxx' in the appeal portal dialogue box."

A little 'bin' icon should appear after you have uploaded your pdf.


Please also read post #3 in the "Newbies" thread so that you know the procedure after you have submitted your appeal i.e. receiving operator's evidence, rebutting operator's evidence etc.

Delsbels

Thank you DollyDee, I'll get that sorted now and then re-read the info post appeal. X

Delsbels

All done, now for more reading!! Thank you everyone for helping me get that put together. X