ECP POPLA Code issued...now what?

Redx

you find and use all possible rebuttal points

so the POFA wording seems to be one

you allege the contract is poor and not valid as 2)

then try and find fault with the signage (which we have mentioned earlier)

those are the 3 main issues that could swing it your way, and you only need to win on one point

yes the assessor goes through the appeal, UNLESS they find one valid point they can rule on, then they stop as they have the bullet they need

so they may read your rebuttal point 1) or 2) and decide in your favour - job done

so assuming there are no other glaring issues , its

1) POFA20121 wording (a technicality)

2) contract issues

3) signage

first78

So I know this is probably not the strongest rebuttal of ECP's evidence, but will it do?

1) 1) No keeper liability

As stated in my evidence, in order for the operator (Euro Car Parks) to transfer liability for unpaid parking charges from the driver of the vehicle, to the registered keeper, the regulations laid out in the Protection of Freedoms Act (PoFA) 2012 must be adhered to. PoFA 2012 states must “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) The amount of the unpaid parking charges specified under paragraph (d) has not been paid in full; and (ii) The creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met), have the right to recover from the keeper so much of that amount as remains unpaid”. Therefore, transfer of liability occurs “28 days beginning with the day after the date the notice is given”. However the PCN XXXXX that has been received states “…29 days from the date given (which is presumed to be the second working day after the Date Issued”. This is incorrect because the field “Date Issued” is actually the date the PCN was issued, not the date the notice to keeper was sent out.

2) No evidence of Landowner authority

The contract ECP have submitted as evidence is nothing short of amateurish and certainly does not carry weight as a legal contract for the following reason:

The identity of the Sainsbury’s signature is unidentifiable, their name is illegible and there is no clue as to whether they actually work for Sainsburys as they have failed to state their job title or any contact details. This calls into question whether they are authorised to give ECP any control over car parking.

The Sainsbury’s date of signature is also incomplete.

There is no clue as to the length of the contract, no expiry date or anything to identify whether it is a rolling contract. There is nothin to indicate this contract was valid on the date PCN XXXXX was issued.


3) The signs in the car park are not prominent

The signs ECP have provided in the evidence show quite clearly has hidden many details in the small print on the signs. The photos they have included are blown up and even then print is not legible and the charge amount is certainly not made clear.

In the absence of ‘adequate notice’ of the terms and the charge (which must be in large prominent letters such as the brief, clear and multiple signs in the Beavis case) this fails to meet the requirements of Schedule 4 of the POFA.

Redx

looks ok to me , except nothin should be nothing (spell check please)

first78

Redx wrote: »

looks ok to me , except nothin should be nothing (spell check please)

Much appreciated, thanks 🙂

Coupon-mad

Looks great, let us know when you win!

Redx

first78 wrote: »

I do not understand what all the jargon in ECP's evidence means.

I have at no point identified the driver but I don't really understand what the Keeper Liability is or what it means.


ECP have provided a signed document signed by Sainsburys and ECP detailing Landowner Authority...again, I don't really understand the document but it was signed on 13 June (no year on Sainsburys signature) and 13 June 2016 by ECP.


I don't know what signage flaws I am looking for, there are signs up all over the car park and they have provided numerous pictures.


I will look at grace periods.


Just beginning to feel beaten by this...I feel stressed because I don't understand what I'm doing and with only having 5 days to make a written response I'm in a bit of a panic.

so you went from the above to the rebuttal post above within that 5 days that you were in a panic

you went from not having a clue to that excellent rebuttal post above that concentrated on demolishing the key points in their evidence pack

you used their evidence pack against them

I look forward to your win (they might even pull out if popla will allow them to do so)

we hope they lose , you win , plus it costs them their popla fee and they get a bl**dy nose , lol

it may also help the next member with ECP troubles , especially about POFA2012 , contracts and signage etc

first78

One final question: my rebuttal has gone over the 2000 character limit I can type into the box on POPLA's page. How do I submit this please?

Umkomaas

first78 wrote: »

One final question: my rebuttal has gone over the 2000 character limit I can type into the box on POPLA's page. How do I submit this please?

Convert it to a .pdf file and attach it to an email to POPLA. Make sure you have all your reference numbers on the email and the rebuttal document.

first78

Result!!!!!!! Thank you all so very much for all your help and guidance, I am so very grateful.

DecisionSuccessful
Assessor Name Adele XXXX
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) to the appellant due to exceeding the maximum parking time permitted.

Assessor summary of your case
The appellant has raised a number of grounds for appeal these are: No evidence of Landowner Authority. The signs are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself. The signs fail to transparently warn drivers of what the ANPR data will be used for, which breaches the British parking Association (BPA) Code of Practice and the Consumer Protection Unfair Trading Regulations due to inherent failure to indicate the ‘commercial intent’ of the cameras. Amount demanded is a penalty. The Notice to Keeper ‘issued/given’ dates conflict and do not comply with Schedule 4 – of the Protection of Freedoms Act (PoFA) 2012.

Assessor supporting rational for decision
The operator is pursuing the registered keeper for the parking charge as it has not been able to identify the driver of the vehicle. In order for the operator to do this, it must transfer liability for the charge from the driver to the keeper in accordance with PoFA 2012. Within PoFA 2012 it states at Paragraph 9(2)(f) that the notice to keeper must: “warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given – (i) The amount of the unpaid parking charges specified under paragraph (d) has not been paid in full; and (ii) The creditor does not know both the name of the driver and a current address for service for the driver, the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;” As such, transfer of liability occurs after ‘28 days beginning with the day after the date the notice is given’. Within PoFA 2012, it further states that: “a notice sent by post is to be presumed, unless the contrary is proved, to have been delivered (and so “given” for the purposes of sub-paragraph (4)) on the second working day after the day on which it is posted; and for this purpose “working day” means any day other than a Saturday, Sunday or a public holiday in England and Wales”. Therefore, it is clear that the date the Notice to Keeper was posted is the key date in determining when the 28-day period begins. Having considered the Notice to Keeper sent in this instance, the wording used is as follows: “You are advised that if, after 29 days from the date given (which is presumed to be the second working day after the Date Issued), the parking charge has not been paid in full and we do not know both the name and the current address of the driver, we have the right to recover any unpaid part of the parking charge from you. This notice is given to you under Paragraph 9(2)(f) of Schedule 4 of the Protection of Freedoms Act 2012 and is subject to our complying with the applicable conditions under Schedule 4 of the Act”. However, I note that the “Date Issued” referred to above is not the date the Notice to Keeper was posted and is instead, the date of the parking event. As such, it is clear that while the operator has attempted to comply with the requirements of Schedule 4 of PoFA 2012, its reference to the “Date Issued” is incorrect and the impact of this is that the keeper would not be given the correct length of time to provide details of the driver. On this basis, I can only conclude that the Notice to Keeper would fail to meet the strict requirements of PoFA 2012. The operator has failed to transfer liability from the driver to the registered keeper of the vehicle. Whilst I note, the appellant has raised other issues, it is not necessary to consider them in this appeal. As such, I conclude that on this occasion the operator failed to issue the PCN correctly.

Umkomaas

Good result @first78. :T

Assessor Name Adele XXXX

I'd heard she has temporarily had to give up singing, but didn't realise she was so strapped for cash to warrant having to do a bit of adjudication work for POPLA.