PCN help

Jolie1

Hi
I parked in a premier parking site and paid the £2 all day fee. I received a PCN eight days later telling me that they have no record of payment or an overstay. I wrote to say that I had paid the all day fee and that they should check their cameras and machine. The appeal was declined and I have a popla number. I am unsure as to how I can prove that I paid?
What are your thoughts?
Thanks

Lamilad

Read the NEWBIES thread. Explains all about the popla process.

Search other threads, type premier park into the search box. Devonlad beat them at popla recently.

Jolie1

After reading the Newbies site, I think I have shot myself in the foot as I stated that I had paid the fee! Is it worth going to POPLA now??

Coupon-mad

No. We help people win at POPLA 99% of the time which is better than anywhere you could ask for advice.

Draft the POPLA appeal and show us.

Fruitcake

Jolie1 wrote: »

After reading the Newbies site, I think I have shot myself in the foot as I stated that I had paid the fee! Is it worth going to POPLA now??

Of course it is worth appealing to PoPLA. There are plenty of appeal points you can use even if you have given away the driver's identity and lost the protection of the Protection of Freedom Act.

Construct a daft appeal using the template appeal points in post 3 of the NEWBIES then post your draft here for checking.

Jolie1

Appeal re POPLA code:
v Premier Parking

1) Premier Parking has no standing or authority to form contracts with drivers in
this particular car park, nor to pursue charges.
I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.
I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.
I do not believe that the contract allows Premier Parking to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument. Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“ 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.''

2) On this day there were issues with one or more of the parking machines. I parked and upon trying to pay the charge, I had problems with the machine keypad not accepting the VRN. It eventually accepted it, despite the machine malfunctioning more than once and contend that I typed it in correctly.
The system was complicated because drivers are expected to recall what time they arrived. Such systems have been criticised as unfair and not consumer-friendly. In fact as I was unsure as to how many hours I wished to stay, I paid for the whole day. If a keypad fault when this machine was certainly malfunctioning caused the system not to record the VRN correctly, then that is a matter within Premier Parking’s control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16: (link to be provided)

In this case, there was a machine failure as in the above similar court case from last week. I clearly recall using the 2 one pound coins in my unused ash tray, placed there by my mother, for all day parking, (note that this is the correct amount) but the machine gave no ticket (not sure if it should?) and did not reject the money.
Payment was definitely made as the signs require and the lack of ticket remains a mystery like that exposed by the Judge in the recent Bodmin case linked above. A contract was not created by that.

3) Breach of the BPA Code of Practice on ANPR.
It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN. The payment made for all day, would in fact, be very easy to identify if the operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers. I put this operator to strict proof that these checks were made (showing full records from that day including the VRN list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching all day payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks. And the situation is fully within this operator’s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket
machines. As a number-plate begins to be typed, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already). To charge under these circumstances with a faulty machine, was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP. Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRN, I had no idea that secret camera data would later be used against me to bind me to a charge I knew nothing about and did not agree to. I thought the cameras were there for security, due to the lack of any other information (a black icon showing a camera communicates nothing). Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact prohibited by consumer law, bringing me to my next point:

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. The machine was not working properly, the failure of the machine to generate a ticket caused the system to fail to record the VRN against that £2, similar to the Bodmin case that this operator lost. No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable. This situation is an 'ordinary' contract involving no overstay and 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 tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable person. A huge charge arising under the excuse of an unexplained event such as a keypad or system error 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 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 to be provided)
- 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 to be provided)
“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 Premier Parking 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, then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.

Jolie1

Please could you check that I have managed to establish enough concerns about the parking charge?
Thanks

Fruitcake

Jolie1 wrote: »

Please could you check that I have managed to establish enough concerns about the parking charge?
Thanks

You have missed out inadequate signage. Use the long template appeal point from post 3 of the NEWBIES. Remember to embed photos, not provide links to them. That way the assessor has to look at them.
Have you got your own pics of the signs to show how they fail to meet the BPA CoP requirements?

You also need an index with numbered headings to match each numbered appeal point.

Jolie1

I missed out inadequate signage as to be fair it is quite large and clear!!!
What do you think the chances are of succeeding with the appeal??

Coupon-mad

It is never large and clear.

Jolie1

Could you please read the appeal. It is in two parts as it is so long. Thanks.

Appeal re POPLA code: xxxxxxxxx
v Premier Parking

As the registered keeper of the vehicle, registration number xxxxx, I wish to appeal against the parking charge issued by Premier Parking.

My appeal is based on the following grounds:-

1. Insufficient signage and notice of the sum of the parking terms and conditions
2. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
3. Breach of the BPA Code of Practice on ANPR
4. Breach of Consumer Rights Act 2015


1) Insufficient signage and notice of the sum of the parking terms and conditions
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:

link0

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 1
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.

The letters seem to be no larger than .40 font size going by this guide:

link2

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

link3

''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:

link4
''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, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, 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 and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

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:

link5

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 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.

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 and terms.

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:


Link6

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:

link7

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.

The signage was unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered.

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 and terms. Areas of this site are unsigned and there are no full terms displayed


2) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice.
Premier Parking has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges. I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.
I require an unredacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.
I do not believe that the contract allows Premier Parking to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument. Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“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.''



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