CP Plus PCN

Dr_N

Hello again,

I received the evidence pack from CP Plus. It is made up of various sections:

Section A: Almost like a table of contents.
Section B: The only time they have mentioned anything with regards to the actual case, please see below. They have attached pictures and also a copy of the Trust car parking policy.
Section C: The actual parking charge notice
Section My original appeal (not the POPLA one) and their rejection. They haven’t attached the NTK.

So section B is made up of the below:

•The appellant was issued a Parking Charge Notice at … Code 05 – Not parked in a designated parking space.
•The driver was parked in the staff permit area but not in a parking space – photos enclosed.
• I have provided extracts taken from the Trusts car parking policy & the permit booklet which is distributed and available to staff members which details that a PCN will be issued if not parked in a designated bay.
• When parking on private land, a motorist freely enters into an agreement to abide by the conditions of parking in return for permission to park. It is the motorists responsibility to ensure that he or she abides by any clearly displayed conditions of parking. POPLA should not allow an appeal where a parking contract was formed, and the motorist did not keep to the terms offered.
• The motorist formed the contract with us the operator by parking their vehicle on our land. The terms and conditions of the contract are outlined in the signage offered at the car park. When deciding to park, it is the duty of the motorist to review the terms and conditions, and comply with these. By remaining parked the appellant accepted the terms and conditions offered but failed to adhere to them.
• On the day of the parking incident the driver did not park in a designated parking space therefore had breached the terms & conditions of the site therefore the PCN were issued correctly.

My amateur response based on links from the Newbies thread:

Dear POPLA Assessor,

Ref. POPLA appeal xxxxxxxxxx

In response to the "evidence pack" CP Plus have submitted please find the relevant points below.
In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on ….

1. In rebuttal to the claim by CP Plus that the signage is clearly displayed, and there is signage at the car park entrance, I will refer to the BPA:CoP, which CP Plus fails to comply with, despite claiming otherwise:

Section 18, paragraph 2 (S18P2):

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

And I draw your attention to this paragraph in the aforementioned Appendix B:

“The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size.”

Please see the pictures below which clearly show that there is no signage at the entrance to the car park, there is only a small sign 10m away at a bend in the road. CP Plus have attached in their evidence pack a picture showing the sign up close, however even within this picture not only is the penalty charge sum of £40 in the same sized font as the rest of the wording, but it is not even highlighted. Furthermore, if CP Plus had taken a picture of the sign from further back, you would be able to see the branches of a tree slightly covering the sign, I have also shown this in a picture below. Furthermore it simply would not be possible to read any signs whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the terms to which it is alleged I agreed as the registered keeper of the vehicle.

Please also note how CP Plus have not attached any signs from within the actual car park, this is because there are no signs around the area where my car was parked, again please see the pictures below.


2. Within their evidence pack, CP Plus have failed to show a Genuine Pre-estimated of Loss breakdown to show how they have come up with £80: as business costs are not losses and they cannot be passed down to a motorist as GPEOL. Furthermore, this charge is not properly given in that it breaches Government Policy by incentivising penalties, given the fact that this operator only receives income if victims are fined. This disregard for Government Policy breaches the BPA Code of Practice, and is therefore unconscionable and unrecoverable.

Furthermore I point the POPLA adjudicator to the following verdicts from past adjudications, circumstances which are similar to this case in that the appeal was upheld due to one or more of the reasons I cite in my own appeal:

1. POPLA Assessor Chris Adamson has stated in June 2014 in response to VCS adjudication and GPEOL that:

''I am not minded to accept that the charge in this case is commercially justified. In each case that I have seen from the higher courts, including those presented here by the Operator, it is made clear that a charge cannot be commercially justified where the dominant purpose of the charge is to deter the other party from breach. This is most clearly stated in Lordsvale Finance Plc v Zambia [1996] QB 752, quoted approvingly at paragraph 15 in Cine Bank of Bes Filmcilik Ve Yapimcilik & Anor v United International Pictures & Ors [2003] EWHC Civ 1669 when Coleman J states a clause should not be struck down as a penalty, “if the increase could in the circumstances be explained as commercially justifiable, provided always that its dominant purpose was not to deter the other party from breach”

2. "...The appellant has made a number of submissions, however, I will only elaborate on the one submission that I am allowing this appeal on, namely that the parking charge amount is not a genuine pre-estimate of loss.

The burden is on the operator to prove that the parking charge is a genuine pre-estimate of loss. Although a detailed breakdown may not necessarily be required to prove this, as the appellant has questioned the level of the charge in this case, it is necessary for the operator to provide an explanation as to how this sum was arrived at as an estimate of the damage which could be caused by the appellant’s alleged breach. However, the operator has not provided a breakdown of costs under each head of claim. I am unable to see how the parking charge amount has been calculated. In addition, the operator has included “Central Payments Office (CPO) – Indirect Overheads”. I do not accept that these costs have been incurred as a direct result of the appellant’s breach. As the operator has not produced a breakdown of costs, I am unable to determine the proportion of these costs in relation to other heads of claim listed by the operator. On this occasion, I am not satisfied that the operator has discharged the burden.

In consideration of all the evidence before me, I find that the operator has failed to prove that the parking charge amount was a genuine pre-estimate of loss. Accordingly, this appeal must be allowed."


3. Within their evidence pack, CP Plus have failed to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.


4. Within their evidence pack, CP Plus have failed to show their Notice to Keeper which I believe is not fully compliant with POFA 2012 legislation, please see my original appeal where I expand on this point.


Once again, I request that my appeal is upheld and for POPLA to inform CP Plus to cancel the Penalty Charge Notice.

Yours faithfully,

THE REGISTERED KEEPER

Many thanks again for all of your help!

Coupon-mad

Remove point #2 entirely as 'no GPEOL' was removed by the Supreme Court Judges in a ridiculous decision that has caused innocent people to be dragged to court in their thousands by this scummy industry, ever since.

I would put this that you had as #4, as point #1 because you will win on this point:

4. Within their evidence pack, CP Plus have failed to show [STRIKE]their[/STRIKE] any Notice to Keeper. [STRIKE]which I believe is not fully compliant with POFA 2012 legislation[/STRIKE] Please see my original appeal where I expand on the point of 'no keeper liability'' and the lack of evidence of the individual liable. The driver has not been identified. The operator has only shown a Notice to Driver. Given the omission of any Notice to Keeper from the evidence supplied, they cannot possibly have proven to POPLA that they complied with the POFA 2012, so POPLA cannot find me liable in law.

Dr_N

Many thanks! Do I just put the below into a PDF and send it to info@popla.co.uk with the appeal number as the subject?

Updated:

Dear Sirs

Ref. POPLA appeal xxxxxxxxxx

In response to the "evidence pack" CP Plus have submitted please find the relevant points below.
In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on ….

1. Within their evidence pack, CP Plus have failed to show any Notice to Keeper. Please see my original appeal where I expand on the point of 'no keeper liability'' and the lack of evidence of the individual liable. The driver has not been identified. The operator has only shown a Notice to Driver. Given the omission of any Notice to Keeper from the evidence supplied, they cannot possibly have proven to POPLA that they complied with the POFA 2012, so POPLA cannot find me liable in law.

2. In rebuttal to the claim by CP Plus that the signage is clearly displayed, and there is signage at the car park entrance, I will refer to the BPA:CoP, which CP Plus fails to comply with, despite claiming otherwise:

Section 18, paragraph 2 (S18P2):

“Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this. See Appendix B for an example of an entrance sign and more information about their use.”

And I draw your attention to this paragraph in the aforementioned Appendix B:

“The sign should be placed so that it is readable by drivers without their needing to look away from the road ahead. Any text on the sign not intended to be read from a moving vehicle can be of a much smaller size.”

Please see the pictures below which clearly show that there is no signage at the entrance to the car park, there is only a small sign 10m away at a bend in the road. CP Plus have attached in their evidence pack a picture showing the sign up close, however even within this picture not only is the penalty charge sum of £40 in the same sized font as the rest of the wording, but it is not even highlighted. Furthermore, if CP Plus had taken a picture of the sign from further back, you would be able to see the branches of a tree slightly covering the sign, I have also shown this in a picture below. Furthermore it simply would not be possible to read any signs whilst in a moving car, and certainly not have read them sufficiently to have be deemed to fully understand the terms to which it is alleged I agreed as the registered keeper of the vehicle.

Please also note how CP Plus have not attached any signs from within the actual car park, this is because there are no signs around the area where my car was parked, again please see the pictures below.

3. Within their evidence pack, CP Plus have failed to provide evidence of a full un-redacted copy of their contract with the landowner which allows them to form such a contract.

Once again, I request that my appeal is upheld and for POPLA to inform CP Plus to cancel the Penalty Charge Notice.

Yours faithfully,

THE REGISTERED KEEPER

Coupon-mad

Yes but only give them one single attachment, not photos as well. Embed any photo into the PDF so it's one document.

In the covering email explain that this is your comments document on the evidence pack for POPLA code xxxxxxxxxx and you have had to email it due to the restricted word-count on the Portal and the fact you have embedded a photo, which the Portal can't accept.

Finish by saying these are not new appeal points, merely comments and a photo related to your appeal and to rebut the misleading evidence, so you ask that this PDF of comments is put before the Assessor before a decision is made.

Dr_N

Many thanks Coupon-mad.

I've sent it all. Should I necessarily expect to receive an email back confirming they have received it?

Coupon-mad

It would be courteous if they did, but POPLA are hit and miss on admin.

Dr_N

Many thanks to all, especially Coupon-mad. I am still awaiting to hear back from POPLA concerning the above case.

I have another ticket in exactly the same circumstances as above. After I appealed to CP Plus, I received a reply (by email) from a 'Parking Collection Services', who informed me I would now be dealing with themselves, and not CP Plus. Within this email, they have also given me a POPLA code.

I imagine it would be alright for me to appeal in the same way as I have done above?

Many thanks again.

Umkomaas

I imagine it would be alright for me to appeal in the same way as I have done above?

In theory, yes. However, if there's enough time before your POPLA deadline, await your current POPLA decision, and if successful, quote verbatim and add the successful POPLA decision, its reference number, the date and the name of the assessor making the decision.

If the current appeal is not successful, time to revisit the drawing board and adjust in light of why the current appeal failed.

HTH

Dr_N

Hello,

I just wanted to thank you all for all of your help with regards to the tickets. I received three in total, all of which I appealed using essentially the templates above, and thankfully they were all successful.

Here are the two responses (2 out of 3 were the same) I received from POPLA on why I was successful:

1. While the appellant has raised multiple grounds for appeal, my report will focus solely on the issue raised around the Protections of Freedoms Act 2012(PoFA 2012). Section 21.9 of the British Parking Association (BPA) Code of Practice states “it’s the driver’s responsibility to pay the PCN”. The operator in this case has issued a Parking Charge Notice (PCN) to the driver of the vehicle. As such, I must first consider whether I am confident that I know who the driver of the vehicle is, based on the evidence that I have received. In terms of POPLA appeals, the burden of proof lies with the operator to demonstrate that the PCN has been issued correctly. In this case, the operator has issued a Notice to Driver. From the evidence provided to me, it is unclear that the appellant was indeed the driver and therefore I would need to consider PoFA 2012. In this case, I would have expected the operator to provide me with a Notice to Keeper that has been issued to the keeper of the vehicle. As I have not been provided with a copy of this, I am unable to confirm that the Notice to Keeper has followed PoFA 2012. After considering the evidence, I am unable to confirm that the appellant is in fact the driver of the vehicle. 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. Accordingly, I must allow the appeal.

2. The operator has raised several grounds of appeal. As I have been persuaded to allow the appeal based on landowner authority I have not considered these other grounds. When entering private land, motorists are expected to comply with the terms and conditions. The operator has provided images of the signage laid out at the site stipulating the terms and conditions of the car park. The terms and conditions of the site state: “Staff Parking Permit Holders Only…Your permits must be clearly displayed in the windscreen of your vehicle. You agree to pay a Charge Notice of £40 if you park and fail to display a valid staff permit or permit, or park outside a designated bay. In an incorrect area or cause an obstruction.” The operator has provided date and time stamped photographic evidence of vehicle… parked at the site outside the markings of a bay. . The appellant says that there is no evidence of landowner authority. In this instance the operator is put to strict proof of full compliance within the British Parking Association (BPA) Code of Practice. The appellant states that the operator does not have proprietary interest in the land and requires a copy of an un-redacted copy of the contract with the landowner. The appellant says that witness statements are not sound evidence of this as they are often pre-signed, generic document. The burden of proof lies with the operator to demonstrate how the appellant has not met the terms and conditions of the car park. The BPA Code of Practice states under section 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.” Having reviewed the operator’s evidence pack a copy of a contract between the operator and the landowner has not been provided. As this has not been provided I am unable to determine that the authority of the landowner has been granted to the operator to pursue unpaid parking charges from drivers or registered keepers on the land in question on the date of the parking event. As such I am unable to conclude that the operator has correctly issued the parking charge.

Thank you again!

Coupon-mad

Brilliant, 3 - 0 to you!

Could you update the POPLA Decisions sticky thread with a link to this thread, please?