PhoneandPay - couldn't and got parking charge

paulT

I have been given a Parking Charge when I used PhoneandPay (this was the only method of payment). I tried to register and pay, thinking I had followed the process as per the signage - but by logging onto the P&P account the day after could not find a record of payment. I rang them and stated I was concerned that there was no 'active session' and they stated that as I hadn't entered the car park code, there was no record of payment. This was the first stage of registration as per the signed instructions and I thought I'd entered it - as it allowed me to register my credit card and veh registration.


Sure enough I received a Notice from Civil Enforcement for £100.


How can I fight this please? As it was unfair, I sent them an email explaining and that I don't intend to pay - but they have rejected this and stated 'No record of Payment'


Is the following statement enough to get it rejected by POPLA please?


Sticky:


Some firms (e.g. Civil Enforcement, CP Plus, Smart Parking and some small PPCs) don't even bother with POFA 2012 wording so the keeper is not liable if you point that out to POPLA. So you can see why the keeper is the person identified in your appeal !

Fruitcake

Have you got a PoPLA code? If not then you need to make an initial appeal using the template from the NEWBIES thread.

If you have a PoPLA code then you need to construct an appeal using the template appeal points from post 3 of the NEWBIES.

A lot will depend on whether you have given away the driver's identity.

paulT

Sorry - sent them an email stating it was unfair and I was not paying - including my name etc - therefore they know I was the driver.

I genuinely tried to pay by following the process on the sign, but even though they had my credit card details and veh Reg, it didn't go through. The rejection of my letter stated 'no record of payment'. If payment is via a third party i.e. PhoneandPay, is not the third party liable if no payment is registered by Civil Enforcement?



The initial letter was addressed personally to me coming from Civil Enforcement. If I didn't identify myself as the driver - could I have the charge rejected at POPLA as per the quote in the first post?

Should I just ignore the letter as POPLA would probably reject any appeal anyway - and let myself be subjected to the large quantity of debt collectors' threatening letters please? I have read that Civil Enforcement are litigious and issue Court Claims a lot - is this true?


Any assistance is really appreciated!

Coupon-mad

Should I just ignore the letter as POPLA would probably reject any appeal anyway

No, seeing as we never lose v CEL at POPLA, and they are litigious if ignored.

paulT

Huge thanks!


Now that I stupidly gave them the information as to me being the driver in my original appeal / refusal to pay, should I just use the template in the 'Newbies' to draft my POPLA appeal please?


You stated that you never lose at POPLA against CEL - could you elaborate on what grounds please?


All advice is gratefully received!

Fruitcake

paulT wrote: »

Huge thanks!


Now that I stupidly gave them the information as to me being the driver in my original appeal / refusal to pay, should I just use the template in the 'Newbies' to draft my POPLA appeal please?


You stated that you never lose at POPLA against CEL - could you elaborate on what grounds please?


All advice is gratefully received!

As I already said in post 2 of this thread, if you have a PoPLA code then you need to construct an appeal using the template appeal points from post 3 of the NEWBIES.

Use all the available relevant points except keeper liability you will find there. These will include at least, inadequate signage, not the landowner, no standing to bring charges in their own name plus any other relevant points you can find there.
You can also put CEL PoPLA into the search this forum box to see what others have used.

Post your draft here for the regulars to check before you send it.

Coupon-mad

paulT wrote: »

You stated that you never lose at POPLA against CEL - could you elaborate on what grounds please?

Can't be sure because CEL invariably give up when they see along forum POPLA appeal!

TBH, your slam dunk winning point (no keeper liability) is out the window IF YOU ARE CERTAIN you actually said who was driving in so many words. Maybe you didn't actually say that?

If unsure, include all the usual stuff you will see in any recent CEL POPLA appeals. Search this board for 'CEL POPLA' and read a few, as well as checking out the template appeal points given and linked in post #3 of the NEWBIES thread, which are very long, for good reason.

The idea is to make them give up so if you are not sure you did talk about who PARKED, include no keeper liability anyway and all the usual stuff from other CEL POPLA threads.

paulT

I guess my initial appeal does kill the 'Slam Dunk', as per below - but please advise if otherwise.




Apart from the signage displaying the wrong payment process, can I use the 'Contract' with CEL being void if I am making payment to PhoneandPay and, if their procedures are incorrect then CEL should take it up with them?




Initial appeal:




You issued me with a parking ticket on 19/01/2017 but I believe it was unfairly issued. I will not be paying your demand for payment for the following reasons:



The signage process is mapped as per the attached photo:



Ring the number

Enter the Site Code

Provide Credit Card Details

State Vehicle Registration Number



This was my first visit to the site and tried to follow the process. After 3 failed attempts, I managed to get through and believed I had completed all the tasks as per the process above.



I tried to confirm this once I had got to the office, and after confirming that I had entered all the details, managed to log into my account – but could not see any open sessions – I thought it might take 24hrs to process as I had submitted my first parking request by phone.



On the 17th, I parked again, but used the App after downloading it. I logged onto the account again and could see the booking for 17th, but nothing for the 16th. I then emailed the Company to raise my concerns that I couldn’t see my booking for the 16th. (Email attached for reference – initial mail is at the bottom of the trail)



I then rang the Phone and Pay, who confirmed that retrospective payments cannot be made and that I may receive a PCN – which I noted was incredibly unfair.



Since receiving the PCN, I have contacted the Phone and Pay company to find out why I was issued with the PCN – and they have replied with the email attached.



It transpires that I did not enter the 4 digit location code. I had ended my call after hearing the repeat of my voicemail confirming my vehicle Registration entered it as per the instructions – this took quite a while to replay. In my haste to get to work, I thought everything was in order by checking that the giving of the Registration Number was the last thing required to complete the carpark booking process (please see photo again).



I have parked most days since this first incident and have had no further problems.



These mitigating circumstances explain why I parked where I did and I am requesting that the charge be waived for these reasons. Please see attached evidence as proof of my claim.



The amount you have charged is not based upon any commercially justifiable loss to your company or the landowner.


In my case, the £100 / £60 charge you are asking for far exceeds the cost to the landowner of the daily charge of £3.00.



If you choose to pursue me please be aware that I will not enter into any correspondence and this will be the only letter you will receive from me until you answer the specific points raised in my letter.



Yours faithfully, - My name

Coupon-mad

OK -well, yes, you shot a couple of toes off there and can't use the slam dunk winning point you would have had as 'keeper'.

So just use the usual template POPLA appeal long templates in post #3 of the NEWBIES thread, certainly the one about unclear signage and the one about no landowner authority. And some of the appeal points used her can be thrown in as well, the idea being to make it as long as possible to make CEL give up bothering to contest it:

https://forums.moneysavingexpert.com/discussion/comment/72132442#Comment_72132442

You can't use 'no grace period' but instead of that you could repeat what you said above and you could use an argument that the operator failed to meet the informational requirements set out in point #9 of a defence mentioned here by the Prankster:

http://parking-prankster.blogspot.co.uk/2016/12/heath-parade-graham-park-way-scam-site.html

HTH, throw the kitchen sink at it. A tactic that tends to work.

paulT

If anyone is willing to read in excess of 3000 words.........



POPLA No xxxxxxx etc:


I received a penalty charge notice for' breaching the terms of the parking notices within the carpark. My appeal, which had clear mitigating factors which highlighted the incorrect payment process and confusing method of payment, was refused and the reason stated that 'no record of payment received'. To that end, I need to challenge the legality of the PCN with specific regards to Contract and Signage including transparency:


No evidence of Landowner Authority in order to pursue charges nor form contracts with drivers - 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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - 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 (legal action regarding land use disputes generally being a matter for a landowner only).

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 basic information 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




In the Parking Eye v Beavis at the Supreme Court in July 2015 the matter of the Aziz test was discussed, relating to the ECJ case: Aziz v Caixa d’Estalvis de Catalunya, Tarragona I Manresa [2013] 3 CMLR 5. The question arising from that binding case is whether a term would have been agreed, had the parties sat down with a blank sheet of paper and negotiated the term in advance. It can be stated as an indisputable fact that the driver would in this case, without a shadow of a doubt, never have agreed to this term, had it been negotiated in advance and with legal representation. It is indisputable that a legal professional would never advise a client to enter a contract that allowed the imposition of a grossly disproportionate charge for entering a car park.



Additionally, the contract fails informational requirements for contracts established in the Consumer Contracts (Information, Cancellation And Additional Charges) Regulations 2013, enacted 13 June 2014.

Any alleged contract would be a distance contract for services as defined in The Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013.

The regulations define three types of contracts; distance contracts, on premises contract and off-premises contracts.

The definitions concern themselves with how a contract is concluded (and in particular if face to face contact occurs during this process) and not where the contract is eventually performed. Thus, if a consumer books a hair styling appointment over the web, that is a distance contract even though they go to the salon for the actual styling. If they re-book at the salon, that will be an on-premises contract. If they meet their stylist in Tesco, arrange for an appointment and immediately phone the salon to confirm, that will be an off-premises contract. All these contracts are performed on-premises, but concluded in different ways.

The regulations define an on-premises contract as:
“on-premises contract” means a contract between a trader and a consumer which is neither a distance contract nor an off-premises contract;
Thus a contract cannot be on-premises if it is a distance contract.

The regulations define a distance contract as:
“distance contract” means a contract concluded between a trader and a consumer under an organised distance sales or service-provision scheme without the simultaneous physical presence of the trader and the consumer, with the exclusive use of one or more means of distance communication up to and including the time at which the contract is concluded;

• This is clearly an organised service-provision scheme (for parking)
• The contract is clearly concluded without the simultaneous physical presence of the trader and the consumer.
• There is clearly the exclusive use of one means of distance communication (signage) up to and including the time at which the contract is concluded.

This is therefore a distance contract.

None of the exemptions in regulation (6) apply. No vending machine or automated premises was used to conclude the contract. Any contract would be concluded by parking and walking away.

Regulation 13 lists information to be provided before making a distance contract. The contract fails to provide the required information listed in Schedule 2. As per 13(1) the contract is therefore not binding.

Alternatively if the contract is on or off-premises, the information rules still apply and the contract is not binding as per either 9(1) or 10(1).


Transparency


From the wording on the signage, any reasonable driver would believe that they are authorised to park and rely on their own timekeeping. In circumstances where the terms of a notice are not negotiable (as with car park signage, which is a take-it-or-leave-it contract) and where there is any ambiguity in those terms, the rule of contra proferentem shall apply. This is confirmed within the Consumer Rights Act 2015 including:
Paragraph 68: 'Requirement for Transparency:




The signs state the charges up to two hours and then £6.00 for any full day. It does not state that the charge could be made prior to the stay and that any overstay from the two hours could be automatically charged at £6.00. The PhoneandPay company had the Credit Card number, and a clear recording of the vehicle registration number in accordance with the signage. It was only by contacting PhoneandPay directly, along with a subsequent visit to the carpark to photograph the signs that highlighted this clear discrepancy in the payment process. This is not transparent.


Signage

The signage on the site is inadequate and was either not seen or not understood by the driver, so no contract could have been formed.
The British Parking Associations’ Code Of Practice (BPA’s CoP) at Appendix B (version 5 as it applied at the time and date of the alleged parking event) sets out the strict requirements for entrance signage:

"The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead" and "There must be enough colour contrast between the text and its background, each of which should be a single solid colour. The best way to achieve this is to have black text on a white background, or white text on a black background. Combinations such as blue on yellow are not easy to read and may cause problems for drivers with impaired colour vision. Signs should be readable and understandable at all times, including during the hours of darkness or at dusk if and when parking enforcement activity takes place at those times. This can be achieved in a variety of ways such as by direct lighting or by using the lighting for the parking area. If the sign itself is not directly or indirectly lit, we suggest that it should be made of a retro-reflective material...''

POPLA is requested to check the Operator's evidence and signage map/photos on this point and compare the signs to the BPA Code of Practice requirements. It is contended that the signs on this land, in terms of wording, position and clarity, do not comply and fail to properly warn/inform the driver of the terms and any consequences for breach.


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

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.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

Link to hom/a/AkMCN

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

Link to 2.bp.blogspoteYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of white space as a background. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators’ signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

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

Link to .signazon.cohelp-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.''

''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''.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) 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, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. 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.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

Link to ilii.org/ew/cases/EWCA/Civ/2000/106.htm

This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

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, 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.


I hope this is sufficient to get the charge quashed. I have read the templates and advice, applying it where I though it would be appropriate; however more than appreciative to any further advice......

Thanks again all!!

paulT

Just to let everyone know. Using the appeal as above, I've just been sent this email from POPLA:

Thank you for submitting your parking charge Appeal to POPLA.

An Appeal has been opened with the reference 14103xxxx.

Civil Enforcement have told us they do not wish to contest the Appeal. This means that your Appeal is successful and you do not need to pay the parking charge.

Yours sincerely

POPLA Team

ET61xx/0xx

Huge thanks to all on this Forum!!!!!