EuroCarParks - Actually paid for ticket!

afi123

Hi, sorry for more PCN posts. I have read the newbies guide, but I feel like my situation is slightly different.

So, I just received a PCN from Euro Car Parks for "No valid pay & display/permit was purchased"

The issue is, I did purchase a ticket at least twice, spending 20 minutes in the pouring rain, as the first machine didn't print a ticket so didn't want to risk it and so bought another ticket from the other machine. (I paid by card and both transactions were logged on my card statement). (ECP should be giving me a refund for charging me twice if anything!)

Unfortunately I threw away the ticket a few days ago and so can't seem to find it as evidence.

Now either the machine didn't register my number plate properly or it is possible that I may have accidentally wrote the number plate of my other car as I only got this car recently. - However I have definitely paid (twice!) and so believe this ticket is unfair.

Does anyone have any tips about the next steps I need to take next to resolve this? So far I haven't entered into any correspondence with them.

Redx

chances are the wrong VRM was used

as you have proof of payment using a card system then you can use this by sending a copy or scan or picture with your appeal, redacted as required

your appeal is as KEEPER using the correct template from the newbies sticky thread, adding a note that

THE DRIVER PAID FOR A TICKET (TWICE) AND SO NO LOSS WAS INCURRED AND THE PCN SHOULD BE CANCELLED (PROOF OF PAYMENT ATTACHED)

on no account name the driver nor infer who the driver was

read that NEWBIES sticky thread carefully , especially post #1 at this early stage

I assume this was a postal notice ?

if not , if it was a windscreen notice , appeal around day 25 , whereas for a postal notice appeal within 21 days or less

afi123

Thanks for all the advice, I followed everything, however ECP have rejected the decision and so I need to go through POPLA. I have one question though- the POPLA page asks for your name and phone number and also asks whether you are submitting the appeal on someone else's behalf. As I believe that at no point should the driver of the vehicle be identified- what do I write in these fields?

Coupon-mad

You need to show us your draft POPLA appeal, like all posters do, to make sure no point is missed. Other ECP POPLA threads and post #3 of the NEWBIES thread will be worth copying from.

The issue is, I did purchase a ticket at least twice, spending 20 minutes in the pouring rain, as the first machine didn't print a ticket so didn't want to risk it and so bought another ticket from the other machine. (I paid by card and both transactions were logged on my card statement). (ECP should be giving me a refund for charging me twice if anything!)

I hope your first appeal didn't state/imply who was driving. Sounds like you know that - good!

The credit card statement should be embedded into your first point of the POPLA appeal, one you will need to write yourself, starting by clarifying that you are the keeper and was an occupant of the car, but the driver has not been admitted or evidenced. But then say that, as you were there, you can honestly bear witness to the fact that payment was in fact made, twice at two faulty machines, and here is the bank statement to prove it (embed a scan, directly into the word document - don't give the Assessor lots of uploaded files to click between). Then reiterate how much was paid each time and when, without saying who was driving.

Then 3 or 4 other standard POPLA appeal points for ECP cases, the usual templates.

I have one question though- the POPLA page asks for your name and phone number and also asks whether you are submitting the appeal on someone else's behalf.

Well you give those details (except phone number, put in eleven zeros) and you are not submitting it on behalf of anyone else, you are the registered keeper and you are entitled to appeal.

I must admit I dislike the way POPLA call those details the contact for the 'motorist' but when I've submitted appeals for people I've always done it in the name of the keeper and never said I am acting 'on behalf of' anyone. None of the fields suggest who was driving as long as the appeal is only submitted as a PDF under 'other' (no ticking boxes about not seeing signs, nor ''I was not improperly parked.'' Nope!).

The_Deep

If this got to court a judge would have to decide who is the more likely to be telling the truth, your good-self, or a lying, cheating, scamming ex clamper.

afi123

Have attached the draft POPLA appeal if someone is able to review it? (seriously, thanks to all of you who have helped out, you have no idea how grateful I am)

"Dear Sir or Madam,

RE: ECP PCN Ref No: 88880923301

I am challenging the “PCN” above as the registered keeper of the vehicle and was an occupant of the vehicle at the time of the alleged contravention.

I would like to challenge the PCN issued by Euro Car Parks Ltd. I would like to have the PCN cancelled based on the following grounds:

1. A VALID TICKET WAS PURCHASED
2. 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
3. BPA CODE OF PRACTICE, NON COMPLIANCE TO GUIDELINES
4. THE OPERATOR HAS NOT SHOWN THAT THE INDIVIDUAL WHO IT IS PERSUING IS IN FACT THE DRIVER WHO MAY HAVE BEEN POTENTIALLY LIABLE FOR THE CHARGE

1. A Valid Ticket was Purchased
Firstly, there was no evidence of the contravention occurring as the driver of the vehicle purchased a valid pay and display ticket. The driver of the vehicle has sent me credit card statements with evidence that a valid ticket was purchased. Indeed, as the machine being faulty, with the first transaction not printing a ticket despite taking payment (3C are the payment processor for contactless payments for Euro Car Parks), the driver paid for the ticket twice as they did not want to risk getting a ticket. An image of the statement is attached with this message (FIGURE 1, original PDF of statements can be requested if required) showing two transactions £3.50 being made on the same night to pay for the evening rate of parking

Euro Car Parks have sent me a list of the transactions processed by the machine around the time. I fail to understand why my car is not on that list as the ticket was purchased not once, but twice and as the machine failed to print the ticket on the first occasion, it is likely that the machine itself had some sort of error. Overall, as driver paid for a ticket, no loss was incurred and so the PCN should be cancelled.!Alongside this, 3 people were in the car at the time who acted as witnesses to this incident and saw the purchase of the valid pay and display ticket.

*BANK STATEMENT SHOWN*

FIGURE 1: BANK STATEMENT SHOWING THAT A TICKET WAS PURCHASED. TWO TRANSACTIONS ARE SHOWN AS THE FIRST TRANSACTION FAILED TO PRINT A TICKET AND SO THE DRIVER PURCHASED A SECOND TICKET FROM A DIFFERENT MACHINE TO BE SURE THAT A TICKET HAD DEFINETELY BEEN PURCHASED.

2. 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:

*TWITTER IMAGE FROM TEMPLATE ON NEWBIES THREAD POST 3 SHOWN*

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:

*IMAGE FROM NEWBIES THREAD POST 3 SHOWN*

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:

LINK

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

LINK
''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:

LINK

''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:

LINK

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.


3. BPA CODE OF PRACTICE, NON COMPLIANCE TO GUIDELINES
The BPA Code of Practice point 20.5a stipulates that: "When issuing a parking charge notice you may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered."

The parking charge notice in question contains two photographs of the vehicle number plate. They do not clearly show the vehicle entering or leaving the car park as required in the BPA Code of practice. The images may have also been cropped and I invite ECP to produce evidence of the original "un-cropped" images showing the vehicle entering and leaving the car park.

4. THE OPERATOR HAS NOT SHOWN THAT THE INDIVIDUAL WHO IT IS PERSUING IS IN FACT THE DRIVER WHO MAY HAVE BEEN POTENTIALLY LIABLE FOR THE CHARGE

In cases with a keeper appellant, yet no POFA 'keeper liability' to rely upon,!POPLA!must first consider whether they are confident that the Assessor knows who the driver is, based on the evidence received. No presumption can be made about liability whatsoever. A vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured. There is no dispute that the driver was entitled to drive the car and I can confirm that they were, but I am exercising my right not to name that person.!

In this case, no other party apart from an evidenced driver can be told to pay. I am the appellant throughout (as I am entitled to be), and as there has been no admission regarding who was driving, and no evidence has been produced, it has been held by!POPLA!on numerous occasions, that a parking charge cannot be enforced against a keeper without a valid NTK.

As the keeper of the vehicle, it is my right to choose not to name the driver, yet still not be lawfully held liable if an operator is not using or complying with Schedule 4. This applies regardless of when the first appeal was made and regardless of whether a purported 'NTK' was served or not, because the fact remains I am only appealing as the keeper and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a keeper appellant to be deemed to be the liable party.

The burden of proof rests with the Operator to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot.

Furthermore, the vital matter of full compliance with the POFA was confirmed by parking law expert barrister, Henry Greenslade, the previous!POPLA!Lead Adjudicator, in 2015:

Understanding keeper liability
“There appears to be continuing misunderstanding about Schedule 4. Provided certain conditions are strictly complied with, it provides for recovery of unpaid parking charges from the keeper of the vehicle.!

There is no ‘reasonable presumption’ in law that the registered keeper of a vehicle is the driver. Operators should never suggest anything of the sort. Further, a failure by the recipient of a notice issued under Schedule 4 to name the driver, does not of itself mean that the recipient has accepted that they were the driver at the material time. Unlike, for example, a Notice of Intended Prosecution where details of the driver of a vehicle must be supplied when requested by the police, pursuant to Section 172 of the Road Traffic Act 1988, a keeper sent a Schedule 4 notice has no legal obligation to name the driver. If {POFA 2012 Schedule 4 is} not complied with then keeper liability does not generally pass.''

Therefore, no lawful right exists to pursue unpaid parking charges from myself as keeper of the vehicle, where an operator cannot transfer the liability for the charge using the POFA.!

This exact finding was made in 6061796103 against ParkingEye in September 2016, where!POPLA!Assessor Carly Law found:!

''I note the operator advises that it is not attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012 and so in mind, the operator continues to hold the driver responsible. As such, I must first consider whether I am confident that I know who the driver is, based on the evidence received. After considering the evidence, I am unable to confirm that the appellant is in fact the driver. 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. As I am allowing the appeal on this basis, I do not need to consider the other grounds of appeal raised by the appellant. Accordingly, I must allow this appeal.''


I hope you can consider this appeal and await your decision.

Yours faithfully,

Coupon-mad

You need the template 'no landowner authority' (ALWAYS in a POPLA appeal) and I would add more in point #1 and make the heading longer too:


1. A VALID TICKET WAS PURCHASED. THE OPERATOR HAS FAILED TO EVIDENCE THE PAYMENTS MADE AT ALL MACHINES AT THE MATERIAL TIME, THUS OMITTING THE RECORD THAT WOULD SHOW THE TWO PAYMENTS MADE

Euro Car Parks have sent me a list of the transactions processed by [STRIKE]the[/STRIKE] just one of the machines around the time (without identifying which machine, and without the other lists from the other machines).

[STRIKE]I fail to understand why[/STRIKE] My car's VRN will undoubtedly appear on the other machine lists, because [STRIKE]is not on that list as[/STRIKE] the ticket was purchased not once, but twice.

As the machine failed to print the ticket on the first occasion, it is likely that the machine itself had some sort of error. Overall, as driver paid for a ticket, no loss was incurred and so the PCN should be cancelled. Alongside this, 3 people were in the car at the time who acted as witnesses to this incident and saw the purchase of the valid pay and display ticket.

I would like POPLA to consider the fact that the operator has supplied just one list of payments made at just one machine, and ask themselves why this might be and why an operator might alter or withhold evidence.

It is without dispute that there is more than one machine at this location, and my evidence proves that those machines were successfully used twice.

I suggest the printout provided to me is either from another day or another location, or simply from a third machine at the site, since there is no evidence to tie the list to a specific location or specific machine. To be given any evidential weight, one would expect such VRN payment printouts to be produced from ALL the machines on site, some of which would show the same times as tickets were purchased by two drivers at two different machines simultaneously. This would mean more than one list produced as evidence and I contend that this operator has been economical with the truth about their supposed list.

My evidence of the driver's payments made, twice, is far more persuasive than a single list from a site with more than one faulty machine.

afi123

Hi, just an update- I have received an operator reply on my POPLA appeal- however on the reply, it says "XXX has appealed to POPLA stated his reasons are outlined in the PDF attachment. No attachment has been uploaded."

Now i'm 99% sure I uploaded the PDF at the time, but that reply is making me doubt this. Is there anything I can do at this stage to check as there appears to be no way of checking what evidence you have submitted on the POPLA website?

Coupon-mad

Email POPLA and ask them if they can see the uploaded PDF and if not, why didn't they tell you it had failed, and are they now going to allow this glitch caused by THEIR system to be addressed so that the operator (and Assessor) sees your appeal?

afi123

Unfortunately, POPLA are fobbing me off regarding uploading the PDF and have granted my appeal as unsuccessful this morning. I am kicking myself now - as I spent a long time on writing the PDF at the time and it seems stupid to fail because I potentially forgot to upload it.

I’ve had a look at the newbies thread but I assume now that it’s wait for debt recovery letters and ignore them unless a court order is issued? (ECP raised only 2 claims in the past year so it’s unlikely it’ll get to that stage I believe)