Appeal - Indigo

Gioino

Hi everybody,

First of all thanks for all the info provided on this forum and please excuse my written English in case of mistakes as that is not my first language.

I am opening a new thread as my situation is quite specific and I didn't find examples that could suit my case - it was my bad not to browse info before appealing, stupid me.

So, to make a long story short: received a "PENALTY NOTICE" for failing to display a valid ticket or voucher at Coulsdon South Station (:mad: Southern Railways :mad:).
As soon as I got back home I have appealed immediately (yes I know NOW that I should have waited and all...) - I am copying and pasting below exactly what I wrote to appeal the ticket hoping that proving them I had actually paid for the parking space for the day would have let me go away with it.

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WHAT I WROTE IN MY FIRST APPEAL TO INDIGO

ticket to display was NOT dispensed by the ticket machine. I am positive about this as I've waited for the ticket for a short while and also took the old ones left there by previous customers to check if mine had been dispensed and I had missed that (CCTV can confirm that, payment made at 9.42am)
receipt for payment totalling £6.30, made through my XXX card ending in XXXX, WAS dispensed and I got that as a proof I've paid for the parking. will attach to this appeal.
(picture of receipt was attached to the appeal)

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So yes, maybe I was wrong to wait for two tickets to be dispensed and the receipt I got was actually what I had to show (sorry, new driver in the UK here).
Of course they decided to uphold the charge, gave me a 10-digit code to appeal to POPLA and here I am.

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I know that a good appeal should not include "I", "me" and stuff like that but, as you could see, I have already kind of shot myself in the foot here and that's why I am asking you what my moves should be next .

Cheers in advance for your help :beer:

Bert

twhitehousescat

please search railway bylaw threads

however , no matter what you write on the popla appeal you will win , however you must mark your appeal as "railway bylaw"

the reason?


POPLA and appeal process for Railway Land
There is a meeting on 27th January 2017 to discuss this issues. John Gallagher decided to
make a decision on the outstanding cases as they could not stay adjourned, he concluded
that he would allow them all. He has invited the Operators to withdraw them and will allow
the rest. He is meeting with with the DVLA, DCLG and the Railway Operators on the 27
January 2017 to agree the process including the appeals.
If you park in a railway car park it will be a criminal case and they will allow clamping, which
does not seem good practice.
One possibility is the DVLA to say that operators can continue to use POPLA but this means all
appeals will be dismissed. Currently they are bound by the decision where the appellant is
not. The alternative will be to take POPLA out of the equation and then it is pursued through
the criminal system

Gioino

thank you - I'll have a deeper look now.
my main concern is that I have already told them I was the driver and that that may somehow decrease my chances to succeed.

twhitehousescat

yup , dont matter , POPLa will not do appeals on railway land , no appeal , they cant continue , you can send ax 50 page rebuttal and you will get an email back "indigo have offered no evidence"

Handbags-at-dawn

As AKent pointed out in his recent thread: the standard Indigo signs say:
"You must purchase (and display) a valid ticket or permit and/or purchase a valid cashless parking session covering the duration of your stay".

You paid by card - ie you purchased a valid cashless parking session.....

This is a perfectly reasonable interpretation of the term. If they say it is a misinterpretation, it doesn't matter: any ambiguity should be interpreted in your favour.

Gioino

thanks for your advice

Coupon-mad

Same question answered last night here:

https://forums.moneysavingexpert.com/discussion/5609664

You win!

Fruitcake

Gioino wrote: »

thank you - I'll have a deeper look now.
my main concern is that I have already told them I was the driver and that that may somehow decrease my chances to succeed.

Luckily where byelaws are in force, it is the vehicle owner that is liable (for trespass) not the driver or the keeper.

Normally we advise people not to reveal who was driving, but in your case as long as nobody tells the parking company who the owner is, you will be safe.

Gioino

thanks to you all.

one question - given the circumstances would you submit the appeal to POPLA asap (refusal of appeal was received today) or would you wait to get closer to the 28-day deadline?

thanks

Coupon-mad

No need to wait, as long as you show us your draft first, copied from another recent Indigo POPLA appeal.

Gioino

Alright this is what I came up with. Anything wrong or that should be added please be brutally honest.

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Dear Sir/Madam,

Re: Railway Byelaw - Penalty notice [xxxxxxx] Vehicle registration: [xxxxxxxx]

The above demand was received from Indigo for failing to display a valid parking ticket at Coulsdon South railway station on 30/1/2017.
Their request was immediately appealed proving them that the parking ticket had actually been paid but the parking ticket was not dispensed (photographic evidence of the receipt was submitted) but my appeal to Indigo was rejected and they gave me POPLA code [xxxxxxxxx].

*(sorry to sound incredibly silly here but am actually not sure that the machine had to dispense two tickets - one to show and one receipt. what should I write if I had to display the receipt actually?)

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 photographic evidence of the receipt was provided to Indigo when I first appealed.

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 Penalty Notice - 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 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.

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 £6.30) already paid.

Indigo state that the terms and conditions of parking are displayed at the entrance to the car park. A special visit to the car park was made to ascertain the positioning and quality of the sign. The sign is not displayed on the entrance of the car park. The signage is set back from the road into the wall in such a way that a driver could only see it at the very last moment and even if the driver could notice it there is the possibility that the view is obstructed as it lies just above a wall-mounted ashtray where people do normally congregate to smoke (ie obstructing the view of the sign itself). This makes the signage difficult to take account of. 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’: the information is missing in this case.

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 terms and conditions referred to in the Penalty Notice are visible only on this badly positioned signage.


5. No Keeper Liability
Indigo’s declared position via their correspondence is based on railway byelaws.

The Railway Byelaws state, under 14 (4), that: “In England and Wales (i) The owner of any motor vehicle, bicycle or other conveyance used, left or placed in breach of Byelaw 14(1) to 14(3) may be liable to pay a penalty as displayed in that area.” Accordingly, under the Byelaws the owner of a vehicle is liable to pay any outstanding penalty for contravention of the Byelaws.

From the evidence provided to POPLA by the operator, I believe POPLA will be unable to determine that it has identified the appellant in this case, as the owner of the vehicle. It is a fact that the owner has not been identified. The POFA positively enshrines the right of a keeper not to name the driver nor be 'assumed' to be that individual and nor can it be reasonably assumed in the absence of any evidence, that a keeper or driver is necessarily the owner.

Therefore, in this case, the operator has not shown that the individual who it is pursuing for the charge is in fact liable:

- POPLA cannot lawfully 'presume' that a keeper may be held as the owner, and
- Henry Greenslade has confirmed that POPLA cannot lawfully 'presume' that a keeper may be held as if they 'might' be the driver.

As the burden of proof rests with the operator in both showing that the appellant has not complied with terms in place on the land, AND showing that the appellant is liable for the parking charge issued, POPLA will be unable to reach any lawful and factual conclusion regarding a keeper appellant like myself being liable, without the POFA having been followed.

6. Unfair terms
The charge being claimed by Indigo is a punitive sum, especially in light of the fact a valid parking ticket had been purchased.
.
The following refers: Office of Fair Trading 'Guidance for the Unfair Terms in Consumer Contracts Regulations 1999': ''It is unfair to impose disproportionate sanctions for breach of contract. A requirement to pay more in compensation for a breach than a reasonable pre-estimate of the loss caused to the supplier is one kind of excessive penalty. Such a requirement will, in any case, normally be void to the extent that it amounts to a penalty under English common law...''


Test of fairness:
''A term is unfair if...contrary to the requirement of good faith it causes a significant imbalance in the parties' rights and obligations under the contract, to the detriment of consumers.

6.1 Unfair terms are not enforceable against the consumer.

9.2 ...terms of whose existence and content the consumer has no adequate notice at the time of entering the contract may not be binding under the general law, in any case, especially if they are onerous in character.''

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

It is wholly unreasonable to attempt to profit by charging a disproportionate sum where no loss has been caused by a driver who has proved they paid the tariff in good faith. Indigo require strict proof to justify that their charge, under the circumstances described, does not cause a significant imbalance to a persons detriment and to justify that the charge does not breach the UTCCRs and UCT Act.

7. No genuine pre-estimate of loss
The parking charge did not fall under the category of a GPEOL on the following points:

i. The correct charge for the period in question, which was paid in full was £6.30, as per the attached photograph of the receipt.
ii. The parking contravention charge of £100 is out of all proportion to any potential loss on the part of Indigo and therefore does not represent a genuine pre-estimate of loss.
iii. There is no loss flowing from this parking event. This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. An initial loss is fundamental to a parking charge and, without it, costs incurred by issuing the parking charge notice cannot be said to have been caused by the driver's alleged breach. Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event. The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no vehicles breached any terms at all.

If a contract was formed between the driver and Operator it would be a simple financial consumer contract. An offer of parking for a set sum was made in return for a small payment. This makes plain that the sum being demanded is nothing other than a penalty clause designed to profit from inadvertent errors or minor underpayment, and is consequently unenforceable.

As this is a simple financial contract any claim for liquidated damages for breach of contract must represent a genuine pre-estimate of loss. If The Operator believes that inadequate payment was made (which their PCN fails to make clear) their demand should be for any unpaid tariff as that would be their only loss. The charge is clearly extravagant and unconscionable compared to the supposed unpaid tariff. If The Operator believes their charge is a genuine pre-estimate of their loss I demand they produce a detailed and itemised breakdown of how this has been calculated.



That completes my case for appeal. I respectfully 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.''