POPLA Appeal Help: Premier Park The Salthouse, Clevedon

barnakles

Hi MSE'ers, I'm looking for some help formulating my POPLA Appeal for the reason: Failure to Pay for the duration of Stay. Please note my appeal deadline is 5 September so I don't have much time! It's an interesting one, as a sufficient amount was paid to cover the duration albeit in 2 instalments. I have not found another similar case as yet on the boards. (I still have the parking receipts which show the correct reg was entered in both cases). Therefore my main appeal defence point is as follows:

1. No breach of the terms of contract. £5 was paid on 17 July in two separate instalments, which allows for 5 hours of parking as per the table of charges displayed. Vehicle was recorded as entering at 11:02 and leaving at 15:27 (4 hours 30 minutes in total). I therefore contend that the contravention did not occur and there was no breach of contract.

I am reading the stickies and other relevant threads to formulate a defence on other grounds. My NTK states "Within 29 days.." so it looks like my other main point will be

2) The Notice to Keeper is not compliant with The Protection of Freedoms Act (PoFA) 2012

but I am yet to find the best template that best illustrates why it is non-compliant. (The 'Issued Date' and the PCN is 24/07/2017):

This doesn't conform with the wording required in Paragraph 9(2)(f) of the POFA 2012

9 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must (f) warn the keeper that if, after the period of 28 days beginning with
the day after that on which the notice is given.

I am the registered keeper and I have not identified the driver at the time in my communications with the Operator or Landowner . I have also (so far unsuccessfully) appealed directly to The Salthouse. It seems their position is that the second ticket purchased cannot be viewed as a top-up to my previous payment and is a separate ticket with a different expiry time. That is not my experience with pretty much any other ANPR car park I have used.

Other defence points:
- No Planning permission for signs and ANPR Camera hardware
- Lack of standing/authority from landowner
- Genuine customer (I have a receipt for a purchase from the pub)
- The charge of £100 plus £1.80 for card payment exceeds the appropriate amount specified in law (Arbitrary extra charges are banned under the POFA 2012)
- Not a genuine pre estimate of loss - case can be distinguished from Parking Eye v Beavis ??

Links to winning text or templates would be much appreciated, any advice on the grounds of appeal I should pursue.

barnakles

The manager of The Salthouse called me today to say that the Premier Park would reduce the charge to £20. I explained to him that, on principle I do not intend to pay, as sufficient parking was paid for on the day. He confirmed I had paid £5 in 2 installments but he contends this does not entitle me to 5 hours. The 2 payments were not linked into a single term of parking (a bit ridiculouse seeings as it is VRN-based) and my 2nd payment of £2 only entitled me to 1 hours parking (£1.50 = 1hr, £3 = 3 hours, nothing in between, no overpayments, no change given). I am minded to proceed to the POPLA appeal but only if I have a good chance of winning, either on the point that no breach was made due to sufficient funds in total being provided, or on no-POFA compliance, or one of the other points. (Signage planning permission, no owner authority etc).

Advice would be most welcome - I am working on my appeal draft which I will post ASAP.

askgar

Take a look at my post (which was right next to this one when you posted) for an example of point 2 (although change the dates).

https://forums.moneysavingexpert.com/discussion/5693523

It didn't actually get to POPLA adjudication though because the land owner cancelled the PCN with Premier Park before they looked at it so I can't tell you if it's actually a winning argument.

barnakles

Please let me know any thoughts on the below: Today is my POPLA deadline so would appreciate any advice ASAP! Apologies for the kitchen sink wording, I am hoping common sense will prevail and I will win at Point 1 but better safe than sorry.

---

I am the registered keeper and I am appealing this parking charge from Premier Park Limited at The Salthouse Bar & Restaurant, Clevedon.

To protect the driver, they have not been named.

My appeal as the registered keeper is as follows:

1. No breach

A cursory check of the operator’s ANPR records for the date of the alleged contravention, [REDACTED], will reveal that £5 in total was paid in two separate instalments for the VRN [REDACTED]. Receipts are included below. This allows for 5 hours of parking as per the table of charges displayed. Vehicle was recorded as entering at [REDACTED] and leaving at [REDACTED] (4 hours 30 minutes in total). I therefore contend that the contravention did not occur and there was no breach of contract.

As the car park was monitored using ANPR technology, it is natural to conclude that multiple payments can be made against a single VRN for a single period of parking. I am personally not aware of any pay-ANPR car parks that do not operate in this way. The signage at the payment kiosks make no reference to counter this view - in fact, it is upheld by a prominent sign at the exit stating ‘Have you paid for your parking?’. This implies that once a sufficient amount has been paid by the time of exit, a driver has complied with the terms.

Because The Salthouse Bar offer a refund of up to £3 on parking with a valid purchase, it is to be expected that customers may need to top up their parking allowance, if they overstay the initial period.

If the operator contends that I overstayed my second ticket purchase, I put this operator to strict proof that their signage at the payment kiosk makes it clear and unambiguous that multiple payments are not permitted for a single period of parking. The parking tickets show an expiry time, however, as there is no requirement to display the ticket in the vehicle, and based on the signage the tickets are provided as receipts only, no situation arises where PCN’s are issued by anything other that the ANPR-based system, which should take all payments made against a single VRN into account. Any other behaviour of the system should be classed as a design fault of the software producing PCNs.

[IMAGE OF TICKET 1]

[IMAGE OF TICKET 2]

If, for some reason the appeal is not upheld on these grounds as a matter of fact, I would like the assessor to consider the following grounds of appeal:
2. Unfair term

The charge is quite clearly an unfair contractual term under UTCCR 1999 and is consequently unenforceable.
a. The charge of £100 is clearly grossly disproportionate to any purported loss which would only be a small parking tariff if no payment had been made at all, which evidence shows was not the case. The contract causes an imbalance in the rights and obligations of the parties to the detriment of the motorist.

The charge that was levied is an unfair term (and therefore not binding) pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. The OFT on UTCCR 1999, in regard to Group 18(a): unfair financial burdens, states:

'18.1.3 Objections are less likely...if a term is specific and transparent as to what must be paid and in what circumstances.

Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer".

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.”

2a. 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. No evidence has been produced by this operator nor any consistently-stated facts that make £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 tickets 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 man. 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.


2. Planning permission for signs and ANPR Camera

A search at the local council’s planning portal reveals that there is no advertising consent in place for the car park signs or the ANPR camera and mounting hardware. The signage at
the car park is classified in planning law as an advertisement. By virtue of
Regulation 30 of the Town and Country Planning (Control of Advertisements)
(England) Regulations 2007 (as amended) it is a criminal offence to display this kind of
advertisement in contravention of the Regulations. The penalty on conviction for the
offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each
day that the offence continues.

I draw attention to the case of Andre Agassi v S Robinson (HM Inspector of
Taxes), (B/3). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view
recover the cost of activities performed by Tenon which it was not lawful for them to
perform.” In this case it was not lawful for the Claimant to have in place its signs upon
which it relies for the formation of an asserted contract with the Defendant.



3. The operator does not have authority from the landowner to issue Parking Charge Notices (PCN).

Premier Park 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 Park to charge paying visitors £100 for a split payment. 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."

4. No evidence of Landowner Authority – the operator is put to strict proof of full compliance with the BPA Code of Practice.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any “site agreement” or “user Manual” setting out details including exemptions – such as any “genuine resident/customer” exemptions or any site occupier’s “right of veto” charge cancellation rights – is key evidence to define what this operator is authorized to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorized can give rise to a charge and of course, how much the landowner authorizes this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2. If the operator wishes to take legal action on any outstanding parking charges, they must ensure they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3. 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


Therefore, I require Premier Park to provide a full and unredacted copy of the current contract with the landowner, signed & dated. I say that 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 a landowner) and may well be signed by a non-landholder such as another agent. 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 - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.


5. The operator has not shown that the individual who it is pursuing 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.’'


6. The charge of £100 plus £1.80 for card payment exceeds the appropriate amount specified in law

The operator’s NTK informs me that any card payment costs an extra £1.80. Arbitrary extra charges are banned under the POFA 2012, the Consumer Contracts(Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.
POFA 2012 states:
Right to claim unpaid parking charges from keeper of vehicle:4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

The CC(ICAP) 2013 Regs state:
Additional payments under a contract
(40).—(1) "Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent."

There was no 'express consent'.

The Consumer Rights (Payment Surcharges) Regs prohibit excessive charges:

(4).A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.

£1.80 is not a true cost for accepting a payment by credit or debit card. The cost is much lower and differs based upon the amount paid (£60 or £100 should attract different card payment charges) and differs for debit cards compared to credit cards:

"Banks charge various fees depending on factors like the degree to which you may be subject to credit card fraud and the overall value of card transactions. Expect different charges for debit and credit cards. You will pay a monthly fee to rent the payment terminal. You will also pay a charge for each transaction - this will be anything from a few pence to 6% of each transaction."


This concludes my POPLA appeal.

barnakles

askgar wrote: »

Take a look at my post (which was right next to this one when you posted) for an example of point 2 (although change the dates).

Thanks askgar - when I amended this to my dates, the first day that the right to recover payment fron the keeper according to POFA and Premier, came out as the same day(??) so I am just leaving the generic wording. FYI My notice to keeper is dated Monday 24th July 2017. I can post my amended text if you were happy to check my dates.

Incidentally, the driver has not been identified but I did admit in my initial appeal (before reading these boards sadly) that it was me who paid for parking. How does this impact on my ability to use the POFA non-compliance arguments?

barnakles

Points reformatted. NB Stripped out some template text to meet the post char limit.

1. No breach

A cursory check of the operator’s ANPR records for the date of the alleged contravention, 17th July 2017, will reveal that £5 in total was paid in two separate instalments for the VRN XXX. Receipts are included below. This allows for 5 hours of parking as per the table of charges displayed. Vehicle was recorded as entering at XXX and leaving at XXX (4 hours 30 minutes in total). I therefore contend that the contravention did not occur and there was no breach of contract.

[Image of ticket]

As the car park was monitored using ANPR technology, it is natural to conclude that multiple payments can be made against a single VRN for a single period of parking. I am personally not aware of any pay-ANPR car parks that do not operate in this way. The signage at the payment kiosks make no reference to counter this view - in fact, it is upheld by a prominent sign at the exit stating ‘Have you paid for your parking?’. This implies that once a sufficient amount has been paid by the time of exit, a driver has complied with the terms.

Because The Salthouse Bar offer a refund of up to £3 on parking with a valid purchase, it is to be expected that customers may need to top up their parking allowance, if they overstay the initial period.

If the operator contends that I overstayed my second ticket purchase, I put this operator to strict proof that their signage at the payment kiosk makes it clear and unambiguous that multiple payments are not permitted for a single period of parking. The parking tickets show an expiry time, however, as there is no requirement to display the ticket in the vehicle, as per the ticket and signage, no situation arises where a parking charge is issued by anything other that the ANPR-based system, which should take all payments made against a single VRN into account. Any other behaviour of the system should be classed as a design fault of the software producing parking charges. It is certainly something under the control of Premier Park, and not the fault of the driver, who paid in good faith and was convinced they complied with all displayed terms.

To further support this view, I would like to draw the Assessor’s attention to Ringgo parking page for this car park, which claims extendable tickets are available, up to the maximum stay:

LINK

If a separate system is able to purchase extendable tickets from the operator, why, if indeed this turns out to be the case, is it not possible from the operator’s own ticket kiosks?

If, for some reason the appeal is not upheld on these grounds as a matter of fact, I would like the assessor to consider the following grounds of appeal:

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 payments made for 5 hours would in fact be very easy to identify if this 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 payments. 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, 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, the driver had no idea that secret camera data would later be used against her to bind her to a charge she knew nothing about and did not agree to.


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. No evidence has been produced by this operator nor any consistently-stated facts that make £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 tickets 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 man. 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

- 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

"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 Park 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 (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.

5. No Planning permission for signs and ANPR Camera

A search at the local council’s planning portal reveals that there is no advertising consent in place for the car park signs or the ANPR camera and mounting hardware. The signage at
the car park is classified in planning law as an advertisement. By virtue of
Regulation 30 of the Town and Country Planning (Control of Advertisements)
(England) Regulations 2007 (as amended) it is a criminal offence to display this kind of
advertisement in contravention of the Regulations. The penalty on conviction for the
offence is at level 4 on the standard scale (current maximum £2,500) plus £250 for each
day that the offence continues.

I draw attention to the case of Andre Agassi v S Robinson (HM Inspector of
Taxes), (B/3). Whilst not wholly aligned to the issues in this case it has been produced because of the principle it extols that no one should profit from their unlawful conduct. The Court’s attention is drawn in particular to paragraph 20 of the Transcript of that case “It is common ground that, whatever costs may be recoverable by a litigant in respect of professional services such as those provided by Tenon to the appellant, they cannot include the cost of any activities which are unlawful”. Paragraph 28 continues - “cannot on any view
recover the cost of activities performed by Tenon which it was not lawful for them to
perform.” In this case it was not lawful for the Claimant to have in place its signs upon
which it relies for the formation of an asserted contract with the Defendant.



6. The operator does not have authority from the landowner to issue Parking Charge Notices (PCN).

Premier Park 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 Park to charge paying visitors £100 for a split payment. 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."

7. No evidence of Landowner Authority – the operator is put to strict proof of full compliance with the BPA Code of Practice.

As this operator does not have proprietary interest in the land then I require that they produce an unredacted copy of the contract with the landowner. The contract and any “site agreement” or “user Manual” setting out details including exemptions – such as any “genuine resident/customer” exemptions or any site occupier’s “right of veto” charge cancellation rights – is key evidence to define what this operator is authorized to do and any circumstances where the landowner/firms on site in fact have a right to cancellation of a charge. It cannot be assumed, just because an agent is contracted to merely put some signs up and issue Parking Charge Notices, that the agent is also authorised to make contracts with all or any category of visiting drivers and/or to enforce the charge in court in their own name (legal action regarding land use disputes generally being a matter for a landowner only).

Witness statements are not sound evidence of the above, often being pre-signed, generic documents not even identifying the case in hand or even the site rules. A witness statement might in some cases be accepted by POPLA but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided by each party to the agreement.

Nor would it define vital information such as charging days/times, any exemption clauses, grace periods (which I believe may be longer than the bare minimum times set out in the BPA CoP) and basic information such as the land boundary and bays where enforcement applies/does not apply. Not forgetting evidence of the various restrictions which the landowner has authorized can give rise to a charge and of course, how much the landowner authorizes this agent to charge (which cannot be assumed to be the sum in small print on a sign because template private parking terms and sums have been known not to match the actual landowner agreement).

Paragraph 7 of the BPA CoP defines the mandatory requirements and I put this operator to strict proof of full compliance:

7.2. If the operator wishes to take legal action on any outstanding parking charges, they must ensure they have the written authority of the landowner (or their appointed agent) prior to legal action being taken.

7.3. 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


Therefore, I require Premier Park to provide a full and unredacted copy of the current contract with the landowner, signed & dated. I say that 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 a landowner) and may well be signed by a non-landholder such as another agent. 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 - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.


8. The operator has not shown that the individual who it is pursuing 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...

This exact finding was made in 6061796103 against ParkingEye in September 2016, where POPLA Assessor Carly Law found:
''.... Accordingly, I must allow this appeal.’'


9. The charge of £100 plus £1.80 for card payment exceeds the appropriate amount specified in law

The operator’s NTK informs me that any card payment costs an extra £1.80. Arbitrary extra charges are banned under the POFA 2012, the Consumer Contracts(Information, Cancellation & Additional Payments) Regs 2013 and the Consumer Rights (Payment Surcharges) Regulations 2012.
POFA 2012 states:
Right to claim unpaid parking charges from keeper of vehicle:4 (5) ''The maximum sum which may be recovered from the keeper by virtue of the right conferred by this paragraph is the amount specified in the notice to keeper...(less any payments towards the unpaid parking charges which are received after the time so specified).''

The CC(ICAP) 2013 Regs state:
Additional payments under a contract
(40).—(1) "Under a contract between a trader and a consumer, no payment is payable in addition to the remuneration agreed for the trader’s main obligation unless, before the consumer became bound by the contract, the trader obtained the consumer’s express consent."

There was no 'express consent'.

The Consumer Rights (Payment Surcharges) Regs prohibit excessive charges:

(4).A trader must not charge consumers, in respect of the use of a given means of payment, fees that exceed the cost borne by the trader for the use of that means.

£1.80 is not a true cost for accepting a payment by credit or debit card. The cost is much lower and differs based upon the amount paid (£60 or £100 should attract different card payment charges) and differs for debit cards compared to credit cards:

"Banks charge various fees depending on factors like the degree to which you may be subject to credit card fraud and the overall value of card transactions. Expect different charges for debit and credit cards. You will pay a monthly fee to rent the payment terminal. You will also pay a charge for each transaction - this will be anything from a few pence to 6% of each transaction."

10. The signs are not prominent, clear or legible from all parking spaces

The signs and the machine tariff board (and the small screen itself on the machine) were contradictory and crowded with different terms, so this is not an example of
‘plain intelligible language’, contrary to the Consumer Rights Act 2015:...

Coupon-mad

2. Unfair term

Remove point #2 because it's very out of date.

My appeal deadline is today, is it safe to leave it for another day or two? I have my own thread open for my case, but I've only been able to get my draft together quite recently and no-one has had a chance to feedback as yet. I'd really like to wait for some feedback but concerned, after all the time invested in researching and creating it, that I'll miss the chance to submit it.

You have 30 days odd, to use a POPLA code. Is your final point, signage, in fact the long template one?

barnakles

Yes, the signage one is the long version from the newbie thread link. I will remove 2. Unfair term. Should I remove 8. Invalid NTK - seeing as I foolishly admitted buying the parking ticket in my PPC appeal? I was not the driver.

EDIT: Updated wording in post #6

Coupon-mad

No, leave it and add to it:

Although I am the registered keeper, and was a passenger that day, hence my honest account regarding the payments we made at the machine, in fact I was not the driver. The burden remains with the operator to show that they are pursuing the driver who parked the car, in a non-POFA case, and they have never identified nor pursued that person.

And replace #2 with a point saying that the Notice to Keeper is not compliant, as you said:

This doesn't conform with the wording required in Paragraph 9(2)(f) of the POFA 2012:

9 (1) A notice which is to be relied on as a notice to keeper for the purposes of paragraph 6(1)(b) is given in accordance with this paragraph if the following requirements are met.
(2) The notice must (f) warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given.

barnakles

I'm finding it very difficult to edit my posts, I think because of the length of the full wording post and the over-zealous bot captcha (does not seem to redirect correctly after successful validation?) Anyway here is my amended points #2 and the full text of #10:

2. The operator has not shown that the individual who it is pursuing is in fact the driver who may have been potentially liable for the charge


Although I am the registered keeper, and was a passenger that day, hence my honest account regarding the payments we made at the machine, in fact I was not the driver. The burden remains with the operator to show that they are pursuing the driver who parked the car, in a non-POFA case, and they have never identified nor pursued that person.

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.’'

10. The signs are not prominent, clear or legible from all parking spaces

The signs and the machine tariff board (and the small screen itself on the machine) were contradictory and crowded with different terms, so this is not an example of
‘plain intelligible language’, contrary to the Consumer Rights Act 2015:

LINK

68 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.
It is submitted that the driver did not have a fair opportunity to read any terms involving
this huge charge, which is out of all proportion and not saved by the dissimilar
'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it
certainly does not supersede any other appeal/defence about a different car park:-

The terms appear to be displayed inadequately at the machine, where only the tariffs are
in comparatively large font.
I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-

LINK

As 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. However, if you...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.''
Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and
effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and
prominent in large lettering, as was found to be the case in the car park in 'Beavis'.
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 when
parked. 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.

Coupon-mad

Looks fine!