ECP Appeal Rejected after following MSE Advice

the_wheels_have_fallen_of

Hello Fellow PCN fighters !!

I received a PCN from Euro Car Parks in December 2016. I appealed on their website as per advice in the newbie section and did not disclose the registered keeper.

They have written back to me to say that my appeal has been rejected (hard copy letter) and that by law I have to disclose the registered keeper and am to pay their reduced £50 fine.

I have looked through various threads here and is it correct that my next recourse is to go to POPLA ?

Thanks !

Redx

if they have given you a popla code then yes its go to popla

but you have got your identities mixed up there

its the driver you did not disclose in the initial appeal

they may quote POFA2012 as a law , but as keeper you do not have to disclose the drivers details at all, which we always say , dont reveal the drivers details

you actually only have to pay if a JUDGE says so , in court

so yes go to popla , but only if they have given you a popla code , otherwise you are awaiting a popla code

the_wheels_have_fallen_of

Hi Redx

Many thanks for the very quick response. They have put a unique POPLA verification code on their letter and yes, they are saying that under POFA 2012 that ECP have the right to recover from the keeper of the vehicle the amount which remains unpaid - ie the PCN

They are also quoting the right to enforce under Fairlie vs Fenton 1870 !!

Fruitcake

It may come as a surprise to the world at large, but private parking companies have been known to tell lies.

There are several PoPLA template appeal points in post 3 of the NEWBIES thread that you can use. You can also find appeal points in the most recent successful posts in the POPLA Decisions thread.

So, construct your appeal and post it here for checking before you submit it.

The Parking-Prankster mentions misuse of Fairlie vs Fenton here.

http://parking-prankster.blogspot.co.uk/2016/02/wright-hassall-prove-their-incompetence.html

It's also briefly mentioned here vs parking lie.

http://nebula.wsimg.com/14b7a8ec4838a1972306339a131de60c?AccessKeyId=4CB8F2392A09CF228A46&disposition=0&alloworigin=1

The judge dismissed this case saying: -

District Judge Jenkins : I am going to strike the claim out. There may well be a contractual arrangement between these claimants and a third party whether they are the owners of the land or not, I don’t know, no legal title evidence has been put before me and for what seems to be clear is that ParkingEye Ltd are not the owners of the land, their contractual arrangements to manage do not in my judgment entitle them to bring proceedings in their name even though their contractual requirements may impose on them an entitlement and obligation to recover fees from those who use the parking facilities but I am not satisfied that those contractual arrangements between these claimants and any other third party can bring about an entitlement to bring a claim, a contractual arrangement cannot impose a cause of action as a matter of law. ParkingEye Ltd have no legal entitlement for this land, they have a contractual arrangement that they must honour but I am not satisfied that I have heard anything that persuades me that they can bring this claim and for that reason the claim is dismissed.

In other words, the parking scammers didn't produce a contract with the landowner saying they could take a third party to court. The claimant's referred to Fairlie vs Fenton, but didn't have a copy of it in court so the judge ignored it.

the_wheels_have_fallen_of

Thanks Fruitcake - thats great advice !! On another note, I have posted seperately about this - i cant find the original NTK that I appealed to ECP about - do I really need to go cap in hand to ECP about it or can I do without it for POPLA appeal ?

Redx

they should send you the evidence pack as well as to popla , with copies of the NTK , photos and anything else deemed relevant

so just do your popla appeal and see what turns up (or they may discontinue in which case you get nothing but an end to the saga)

the_wheels_have_fallen_of

After reading the various POPLA appeal templates as well as Elwick's recent post on another thread (Validated by Redx), here is my proposed appeal:

POPLA Appeal 1

I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question. I was NOT the driver.


I contend that I am not liable for this parking charge on the basis of the below points:

1) This Notice to Keeper (NTK) is not compliant with the Protection of Freedoms Act 2012 (POFA) due to the dates and the wording used.

Under schedule 4, paragraph 4 of the POFA, an operator can only establish the right to recover any unpaid parking charges from the keeper of a vehicle if certain conditions must be met as stated in paragraphs 5, 6, 11 & 12. Brittannia have failed to fulfil the conditions which state that the keeper must be served with a compliant NTK in accordance with paragraph 9, which stipulates a mandatory timeline and wording:-

’’The notice must be given by— (a) handing it to the keeper, or leaving it at a current address for service for the keeper, within the relevant period; or

• sending it by post to a current address for service for the keeper so that it is delivered to that address within the relevant period.’’

The applicable section here is (b) because the NTK was delivered by post. Furthermore, paragraph 9(5) states: ’’The relevant period…is the period of 14 days beginning with the day after that on which the specified period of parking ended’’

The NTK sent to myself as Registered Keeper arrived nearly 2 weeks after the alleged event. The NTK issued by Euro Car Parks states the ‘date of contravention’ as 23 November 2016 and ‘date of notice’ as 5 December 2016, (13 days later), hence the NTK can not be considered to be deemed ‘served’ or given, within the 'relevant period' as required under paragraph 9(4)(b).


This means that Euro Car Parks have failed to act in time for keeper liability to apply. Furthermore, it is clear that Euro Car Parks know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.


So, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was - and that person was not me.

2) The operator has not shown that the individual who it is pursuing is in fact 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.

Where a charge is aimed only at a driver then, of course, no other party can be told to pay, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.


The burden of proof rests with the Operator, because they cannot use the POFA in this case, 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 – they will fail to show I can be liable because the driver was not me.

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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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.''


3) Euro Car Parks has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted, contemporaneous 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.

Coupon-mad

The NTK sent to myself as Registered Keeper arrived nearly 2 weeks after the alleged event.

Nope, that would be served in time! The date on it was twelve days after the event, not 13, and was deemed delivered on day 14 (in time).

This means that Euro Car Parks have failed to act in time for keeper liability to apply. Furthermore, it is clear that Euro Car Parks know this because they have used the alternative version of their template ‘Parking Charge Notice’ – the one with a blank space near the bottom of page one and no reference to ‘keeper liability’ or the POFA.

Nope! That has been wrongly lifted from a ParkingEye one. ECP do not have a 'blank space version' PCN. I would remove stuff about ECP NTKs not being compliant, because they now are good enough, unless served late which this one wasn't.

You need the deliberately long template about unclear signs. Yes, we know there were signs up. You still need that template point along with your point #2 and #3! And tell us what the contravention was, overstay? How long, just minutes? If so then you need 'grace periods'.

the_wheels_have_fallen_of

d) who has the responsibility for putting up and maintaining signs.


e) the definition of the services provided by each party to the agreement. Euro Car Parks have not demonstrated that they had authority to issue parking notices for this site on the date that the PCN was given, and they have not provided a copy of the contract which would allow me to determine my liability and/or to request cancellation of the charge. Despite my specific request of 5 December 2016, Euro Car Parks have not provided me with a copy of the contract with the landowner or on site businesses, as required under the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

4). The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

No evidence has been produced either way by this operator as why it is lawful to try to charge a rate (a reduced one) of £50 parking charge far exceeds the cost to the landowner of the alleged overstay. I therefore feel the charge asked for is punitive and unreasonable.

This situation involves 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, 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 alleged overstay - is an unfair penalty to the mind of any reasonable man. 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 supports my position that the failure in performance of the keypad and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:
LINK: legislation.gov.uk/ukpga/2015/15/schedule/2/enacted
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''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.''

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 does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

LINK:legislation.gov.uk/ukdsi/2008/9780110811574/regulation/3
’’Prohibition of unfair commercial practices’’: 3.—

(1) Unfair commercial practices are prohibited.

(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6; ‘’

I have shown that Euro Car Parks have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even if POPLA cannot consider consumer law (why ever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.


5)The signs are not prominent, clear or legible from all parking spaces

The signs were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
LINK: legislation.gov.uk/ukpga/2015/15/contents/enacted
68 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.

It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

LINK: //imgur.com/a/AkMCN
The terms appear to be displayed inadequately at the machine, where only the maximum are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-

LINK:archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
LINK.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. However, if you…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:-
LINK.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.''

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up.

the_wheels_have_fallen_of

5) Incorrect use of Fairlie vs Fenton 1870

Euro Car Parks have mis-applied Fairlie vs Fenton 1870 by stating:

Any person who makes a contract in his own name without disclosing the existence of a principal, or who, through disclosing the fact that he is acting as an agent on behalf of a principal, renders himself personally liable on the contract, is entitled to enforce it against the other contracting party. It therefore follows that a lawful contract between the car park operator and the motorist will be enforceable by the car park operator as a party to that contract. This is supported by case law of Fairlie v Fenton (1870 LR 5 Exch 169).

The crucial part is 'renders himself personally liable'. Essentially this means the operator can sue the motorist if the motorist can sue the operator. In practice, this rarely is the case. The benefit to the motorist is the provision of a parking space, but if that goes wrong, the operator is quick to absolve themselves of responsibility. If the parking surface has a pothole and a vehicle suffers damage, or if the car park surface is covered in ice and the driver slips getting out of the car, then typically it will be the landowner the motorist sues, not the operator of a pair of cameras.

the_wheels_have_fallen_of

Please if someone could feed back, especially on the Fairlie vs Fenton bit that would be very helpful !! Thanks !