ParkingEye - Selly Oak Pay and Display - POPLA appeal

GeoffBungle

Boo.

Don't feel like the assessor has considered anything I submitted in my rebuttal notes.

Unsuccessful

Assessor NameLouise Dack

Assessor summary of operator case

On 13 September 2017, vehicle XXXXXX was issued with a Parking Charge Notice (PCN). This PCN was issued due to the motorist failing to make a valid payment for their parking session.

Assessor summary of your case

The appellant has raised the following grounds of appeal: 1. Insufficient grace period 2. The operator has not shown that the individual who it is pursuing is in fact liable for the charge. 3. No evidence of Landowner Authority 4. Inadequate signage 5. 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. 6. The Notice to Keeper does not comply with the BPA Code of Conduct

Assessor supporting rational for decision

When entering private land where parking is permitted, you are entering into a contract with the operator by remaining on this land. The terms and conditions of this land should be displayed around this area. It is essential that these terms are adhered to in order to avoid a PCN; it is the responsibility of the motorist to ensure that this is the case. The terms and conditions shown on the photographic evidence provided by the operator state ‘’Parking tariffs apply 24 hours a day, 7 days a week…Motorists must enter their full, correct vehicle registration when using the payment machine…Failure to comply with the terms and conditions will result in a Parking Charge of: £100.’’ A PCN has been issued for the following reasons: the appellant has failed to make a valid payment for their parking session. The appellant says that there has been an insufficient grace period applied. They say that the driver had a poorly 12-month-old baby in the car with them. They say that the driver visited the NHS walk-in centre located opposite the car park managed by Parking Eye. The appellant says that the driver entered the car park, entered a space, and spent several minutes soothing the child. In addition, upon realising the car park was a pay and display, they say that the driver found they did not have change. Following this, they say that the driver left the car park on foot with the child in an attempt to find a cashpoint, in the hope of withdrawing cash and obtaining change from a nearby shop. However, after being unable to obtain cash, the appellant left the car park. The BPA Code of Practice section 13.1 states “your approach to car park management must allow a driver who enters your car park but decides not to park a reasonable period without having their vehicle issued with a PCN. Section 13.2 states “you should allow the driver a reasonable grace period in which to decide if they are to stay or go.” Both section 13.1 and 13.2 outline grace periods in the BPA Code of Practice for drivers to have time to read the terms and conditions of the site, and if they cannot agree to those terms, the driver has the time to leave the site without penalty. In the appellant’s appeal they state that they left their vehicle unattended on the car park whilst attempted to find a cash point to be able to pay for parking. I can conclude that the appellant had the opportunity to read the terms and conditions to decide if to remain on site leave. The appellant chose to leave their vehicle on the car park, therefore the appellant chose to park. The appellant was making use of the facilities provided by the operator and with the appellant choosing to remain on site for reasons other than understanding and accepting the terms, grace periods are not applicable. The operator says that the operator has not shown that the individual who it is pursuing is in fact liable for the charge. In this case, it is not clear who the driver of the appellant’s vehicle is, so I must consider the Protection of Freedoms Act 2012 (PoFA 2012), as the operator issued the Parking Charge Notice (PCN) to the keeper of the vehicle. The operator has provided me with a copy of the notice to keeper sent to the appellant. I have reviewed the Notice to Keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant. The appellant says that the operator does not have the authority from the landowner to issue PCNs on site. Within the operators case file they have provided a copy of written authorisation from the landowner. Having reviewed this I am satisfied it meets the requirements as laid out with Section 7 of the British Parking Associations Code of Practice and as such, I am satisfied the operator has authorisation from the landowner to operate on the land. The appellant says that the car park contains inadequate signage. In section 18.1 of the British Parking Association (BPA) Code of Practice it states “In all cases, the driver’s use of your land will be governed by your terms and conditions, which the driver should be aware of from the start”. The operator has provided photographic evidence of the signage on site, including entrance signs which signpost the motorist to the full terms available within the car park. On looking at the evidence provided, I am satisfied that these terms have been displayed clearly and sufficiently and in compliance with the BPA Code of Practice. The appellant says that the charge is a penalty, breaches the Consumer Rights Act 2015 (CRA 2015). While CRA 2015 has not been considered by a court, its predecessor the Unfair Terms in Consumer Contracts Regulations (UTCCR) 1999 has been. For all intents and purposes, in relation to unfair terms, they are the same in substance. In ParkingEye-v-Beavis, the court considered whether an unpaid parking charge was (a) a penalty; and (b) unfair, according to UTCCR 1999. They concluded: “In our opinion, the same considerations which show that the £85 charge is not a penalty, demonstrate that it is not unfair for the purpose of the Regulations”. Borrowing on this reasoning, we do not consider the charge is a penalty and we do not consider it unfair. The appellant says that the Notice to Keeper does not comply with the BPA Code of Practice as this fails to give the exact basis of reasonable cause. After reviewing the Notice to Keeper provided by the operator, I am satisfied that this identifies the reasoning for issue and is complaint with the BPA Code of Practice. The appellant says the parking charge received is unfair. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.” As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in Section 18 of the BPA Code of Practice. Within Section 18.1 of the BPA Code of Practice, it states as follows: “You must use signs to make it easy for them to find out what your terms and conditions are.” Furthermore, Section 18.3 of the BPA Code of Practice states: “You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.” As stated, these are the minimum standards that a parking operator must meet when informing motorists of the terms and conditions at a particular site. In addition to this, I note that within the Protection of Freedoms Act 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given “adequate notice” of the charge. The Act then moved on to define “adequate notice” as follows: (3) For the purposes of sub-paragraph (2) “adequate notice” means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land. Even in circumstances where PoFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own independent assessment of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and PoFA 2012, I am of the view that the signage at the site is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. The car park is monitored by Automatic Number Plate Recognition (ANPR) this system has captured the appellant’s vehicle entering site at 15:11 and leaving at 15:31 after completing a parking session of 19 minutes. The operator has provided a copy of the Whitelist Lookup for the day of the parking contravention. This system shows a list of vehicle registration details entered upon making payment and I can confirm that the appellant’s details are not present. It is the responsibility of the motorist to familiarise themselves with the available signage on site and ensure that their parking complies with the applicable terms and conditions before leaving their vehicle unattended on site. In this instance, the appellant has failed to make a valid payment for their parking session and as a result they have breached the terms and conditions of the car park. As such, I can only conclude that the PCN has been issued correctly. Accordingly, I must refuse this appeal.

Redx

possibly not , but I believe you were always on a sticky wicket with this saga because you failed to adhere to the site rules on a private car park. the driver had maybe 10 minutes maximum to either comply or leave the car park

I appreciate there were varying reasons for this but as I said earlier POPLA wont consider mitigation and never have done , not in all the 5 years a popla system has operated

if you still refuse to pay , in full, then be prepared for a court case (MCOL) within 6 years

come back if you do receive an LBC or an MCOL in the post

keep ALL paperwork

the statute is 6 years for a court claim for an alleged debt

GeoffBungle

Will do.

Thanks for all your help so far.

GeoffBungle

Hi again,

I received the LBCCC, as expected (on my birthday, no less!).

I've included grabs of the letter (with identifying info omitted)

Page 1

Page 2

They've also included the reply form and financial statement from the annexes of the Protocol

My proposed reply is as below. Grateful for any thoughts/additions.

I am in receipt of your Letter Before County Court Claim (LBCCC) of [DATE].

Your letter contains insufficient detail of the claim and fails to provide copies of evidence you place reliance upon.

You assert that your letter is “fully compliant” with the new Pre-Action Protocol for Debt Claims. Since proceedings have not yet been issued, the protocol clearly applies and must be complied with.

Your letter lacks specificity and breaches both the requirements of the previously applicable Practice Direction - Pre-Action Conduct (paragraphs 6(a) and 6(c)) and the new Pre-Action Protocol for Debt Claims (paragraphs 3.1(a)-(b), 5.1 and 5.2.

Please treat this letter as a formal request for all of the documents / information that the protocol requires you to provide. You must not issue proceedings without complying with that protocol. I reserve the right to draw any failure of the Claimant to comply with the protocol to the attention of the court and to ask the court to stay the claim and order you to comply with all pre-action obligations, and when costs come to be considered.

As a legal department and serial litigator of small claims you must surely be familiar with the requirements of both the Practice Direction applicable pre-1 October and the Protocol which applies thereafter.

As you must know, the Practice Direction and Protocol bind all potential litigants, whatever the size or type of the claim. Its express purpose is to assist parties in understanding the claim and their respective positions in relation to it, to enable parties to take stock of their positions and to negotiate a settlement, or at least narrow the issues, without incurring the costs of court proceedings or using up valuable court time.

It is astounding that a legal department is sending a consumer a vague and unevidenced 'Letter before Claim' in ignorance of all elements of the pre-existing Practice Direction and the new Protocol.

Nobody is immune from the requirements and obligations of the Practice Direction and now the Protocol.

I require you to comply with its obligations by sending me the following information/documents:

1. an explanation of the cause of action
2. whether they are pursuing me as driver or keeper
3. whether they are relying on the provisions of Schedule 4 of POFA 2012
4. what the details of the claim are (where it is claimed the car was parked, for how long, how the monies being claimed arose and have been calculated, what contractual breach (if any) is being claimed)
5. a copy of the contract with the landowner under which they assert authority to bring the claim
6. a copy of any alleged contract with the driver
7. a plan showing where any signs were displayed
8. details of the signs displayed (size of sign, size of font, height at which displayed)
9. If they have added anything on to the original charge, what that represents and how it has been calculated.
I am clearly entitled to this information under paragraphs 6(a) and 6(c) of the Practice Direction. I also need it in order to comply with my own obligations under paragraph 6(b).

If you do not provide me with this information then I put you on notice that I will be relying on the cases of Webb Resolutions Ltd v Waller Needham & Green [2012] EWHC 3529 (Ch), Daejan Investments Limited v The Park West Club Limited (Part 20) – Buxton Associates [2003] EWHC 2872, Charles Church Developments Ltd v Stent Foundations Limited & Peter Dann Limited [2007] EWHC 855 in asking the court to impose sanctions and to order a stay of the proceedings, pursuant to paragraphs 13 ,15(b) and (c) and 16. I will draw to the court’s attention the fact that I have expressly requested this information since as early as [25th January] yet you have refused to provide it, saying that it will not do so until court proceedings have begun.

Until you have complied with your obligations and provided this information, I am unable to respond properly to the alleged claim and to consider my position in relation to it, and it is entirely premature (and a waste of costs and court time) for you to issue proceedings. Should you do so, then I will seek an immediate stay pursuant to paragraph 15(b) of the Practice Direction and paragraph 7 of the Protocol and an order that this information is provided.

Yours faithfully,

GeoffBungle

Apologies for the bump. Appreciate that the forum is super-busy but if anyone is able to cast an eye over this I'd be very grateful.

Thank you.

nosferatu1001

As long as you have checked that the details above are correct in YOUR case, then go ahead.

GeoffBungle

Hello,

Bit of an update.

Had a response to my LBCCC response - fairly standard with some bits changed to apply to my case, copy of NtK, copy of signage plan, demand/offer to make payment within 14 days to avoid court action. Refusal to provide a copy of contract as it is “largely irrelevant” to the case, in their words.

Sent a response taking issue with various things, of course. At the end, I requested they reply to me within 14 days (seemed fair, mirrored their own timeline).

Got the auto-response saying they’d reply in 10 days.

Now, a couple of days later, have had another response saying they will reply within 30 days, and have put the charge on hold.

Should I wait or, as I specified 14 days originally, go back and request they reply within that timeframe?

Coupon-mad

I would wait and see. If they are going to make a claim, they will in the end.

GeoffBungle

Thanks CM. And congrats on 55,000 posts!

You!!!8217;ve helped to turn this place into an invaluable resource.