ParkingEye POPLA Won 2 Lost 1

FranzFerdibland

Morning all,

I look after the fleet for the company I work for, and have been following things closely on Pepipoo and here, as we get quite a lot of these, and I’d become fairly fed up with having to pay them.
On that front – you guys are doing excellent work here – given a bit of time, it’s possible to glean enough information from the forum, and kick these idiots where it hurts.
Anyway, we had one driver caught twice, and then a second driver, all in the same ParkingEye controlled car park in Manchester.

Most of our vehicles are hire vehicles, so I figured I could shut all three of the PCNs down with POFA 2012 arguments for a shortage of paperwork provided with the Notice to Hirer.

I sent off the initial appeals, and of course it ended up with POPLA.
Sent off POPLA appeals and rebuttals, and two came back quickly as being successful, the below being an example of the response we had:

From the evidence the operator has provided, I can see that the operator is pursuing the appellant as the hirer of the vehicle, as such, the provisions laid out in PoFA 2012 , will need to be followed in order to transfer liability from the keeper of the vehicle, to the hirer of the vehicle. PoFA 2012, paragraph 4 (1) states, “the creditor has the right to recover any unpaid parking charges from the keeper of the vehicle”. This continues to state in Section 13 (2) “The creditor may not exercise the right under paragraph 4 to recover from the keeper any unpaid parking charges specified in the notice to keeper if, within the period of 28 days beginning with the day after that on which that notice was given, the creditor is given – (a) A statement signed by or on behalf of the vehicle-hire firm to the effect that at the material time the vehicle was hired to a named person under a hire agreement; (b) A copy of the hire agreement; and (c) A copy of a statement of liability signed by the hirer under that hire agreement. Followed by section 13 (5) “The documents mentioned in sub-paragraph (2) must be given by- (a) Handing them to the creditor; (b) Leaving them at any address which is specified in the notice to keeper as an address at which documents may be given to the creditor or to which payments may be sent; (c) Sending them by post to such an address so that they are delivered to the address within the period mentioned in that sub-paragraph”. From the evidence provided to me by the operator, I can see that a notice to keeper was issued to a hire company, followed by a notice to hirer. As such, I would expect the operator to demonstrate that they then provided the relevant documents to the hirer, as required in the PoFA 202. There has not been evidence provided to demonstrate that these documents were sent to the hirer. As such, the operator has not shown that they have followed the PoFA 2012, section 13, “notice to hirer”. In this case, I can only conclude that PoFA 2012 was not followed and therefore, the Parking Charge Notice was not issued correctly. Accordingly, I must allow this appeal. I note the appellant has raised further grounds of appeal. However, I do not need to look at these as I have allowed the appeal.

The third appeal, however, took a week longer, and then came back yesterday as being unsuccessful. Reasoning below:

The terms and conditions state: “Parking Tariffs apply 24 hours a day, 7 days a week” and that “Failure to comply with the terms & conditions will result in a Parking Charge of: £100”. The operator’s case file includes photographs of the signage at the site clearly showing these terms. The operator has also provided photographic evidence of the vehicle arriving at 10:51 and departing at 11:21, remaining for a total of 30 minutes. In addition, there is a system print-out showing that no payment was made. To be clear, POPLA assesses appeals on a case by case basis. We cannot and do not compare one appeal with another for the purposes of assessment. I am satisfied that the appellant, XXX XXXX, is appealing this PCN on behalf of the company XXX XXXX Ltd. Furthermore, as the appellant has neither identified the driver nor claimed not to know who the driver is, I am satisfied that the driver of the vehicle was an employee of the company undertaking duties in accordance with his employer’s wishes. The driver, as an agent of the company, had the authority to enter into contracts on its behalf. As such, I will be assessing the company’s liability for this PCN as if it were the driver of the vehicle and so the provisions of POFA 2012 are not applicable in this instance. POPLA is an evidence based service. We can only assess an appeal based on the evidence that is provided to us. The appellant says the signage is not adequate and the amount of the parking charge is not made clear. 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 the British Parking Association (BPA) Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within the POFA 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. POFA 2012 defines “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 terms and the parking charge to the attention of the motorist. I note that the appellant has not provided any evidence in rebuttal. 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 appellant has questioned the operator’s authority to issue and pursue PCNs. Section 7.1 of the British Parking Association (BPA) Code of Practice sets out to parking operators that “if you do not own the land on which you are carrying out parking management, you must have the written authorisation of the landowner (or their appointed agent)”. This “must be given before you can start operating on the land in question and give you the authority to carry out all the aspects of car park management for the site that you are responsible for”. In particular, it must say that the landowner “requires you to keep to the Code of Practice and that you have the authority to pursue outstanding parking charges”. The operator has provided POPLA with a copy of the contract between itself and the landowner, which, on the balance of probability, I am satisfied means the operator had the authority to issue this PCN. I would note again that the appellant has not provided any evidence to suggest that this is not the case. Ultimately, the terms and tariffs are clear, but no payment was made. As such, the operator correctly issued the PCN and I must refuse this appeal.
So there you have it, apparently. In this instance, the company I work for is being pursued as the driver, and therefore POFA 2012 does not apply.

I’ll be honest; I haven’t got as far as reading through the next steps, as I didn’t think I’d have to, but I thought this might be a useful bit of info for everyone, particularly fleet managers. Initially, I thought we’d got an easy catch all, but it looks as though things could be more complex. I have to say, I’m surprised that this result is so far removed from the other two.

Be interested to head anyone else’s thoughts on this too, of course.

Thanks in advance.

Umkomaas

I’ve not attempted to read through the total wall of text that POPLA produce (and you’ve reproduced) to see if there were any differences between the appeals you made for the first two and the third, but if the appeals were the same and the circumstances of the hire arrangements and the parking events were more or less the same, then I’d be raising with the Lead Adjudicator the issue of the inconsistency of adjudication produced by his assessors.

Lead Adjudicator - John Gallagher. Mark your complaint ‘For the personal attention of Mr John Gallagher, POPLA Lead Adjudicator: Procedural Irregularity, Inconsistency of Adjudications’.

PE do pursue to court - do hold on to all the POPLA decisions as I’m sure a judge would have some interesting remarks to make!

nosferatu1001

From scanning that, the only reference to POFA was around signage. Did they not comment on the Lease car issue, presumably POFA para 13/14 on the lease documentation not being present?

Coupon-mad

To be clear, POPLA assesses appeals on a case by case basis. We cannot and do not compare one appeal with another for the purposes of assessment. I am satisfied that the appellant, XXX XXXX, is appealing this PCN on behalf of the company XXX XXXX Ltd.

Furthermore, as the appellant has neither identified the driver nor claimed not to know who the driver is, I am satisfied that the driver of the vehicle was an employee of the company undertaking duties in accordance with his employer’s wishes. The driver, as an agent of the company, had the authority to enter into contracts on its behalf. As such, I will be assessing the company’s liability for this PCN as if it were the driver of the vehicle and so the provisions of POFA 2012 are not applicable in this instance. POPLA is an evidence based service. We can only assess an appeal based on the evidence that is provided to us.

Same as Edna Basher's post last week in 'POPLA Decisions' - take a look! He pointed out that PE never even tried to argue 'vicarious liability - driver acting on behalf of the company' (and in his case the driver was NOT even an employee, presumably a family member of the lessee/keeper!).

So this demonstrates POPLA are applying this knee-jerk 'argument' FOR PPCs, whether or not a PPC argue it. Despite the fact they add 'POPLA is an evidence based service. We can only assess an appeal based on the evidence that is provided to us' they HAVE actually created a liability argument that was never there from the PPC. Again.

nosferatu1001

And, it is complete rubbish

The absence of a renial is not a positive affirmation of anything in teh ABSENCE of an allegation. So as PE never bothered to put forward the argument, the appellant has no reason to deny the drivers duties at the time.

THis is complete bull. Immediate complaint.

Edna_Basher

Since last week's dodgy decision, we've had a couple of other POPLA assessments correctly in our favour (i.e. no attempt by POPLA to introduce new arguments (which the PPC themselves had not made) about drivers of company cars binding companies to parking contracts).

I'm now wondering if this could be a case of one particular assessor going off-piste (she has "previous" for this). Maybe POPLA assigned the same errant assessor to your case in your own game of "assessor roulette".

I'm just in the process of finishing off my letter of complaint to Mr. Gallagher.

Coupon-mad

We'd love to see your complaint letter, Edna Basher. This is wholly unacceptable.

In your case the driver was not even an employee, and can't be assumed to be. Applying POPLA's recent brain fart, this case (below) would have been lost, because the lady with her child would have been 'assumed' to have been acting on behalf of her company by doing her shopping. Luckily, Lamilad (Ian Lamoureux) argued it well and a Judge saw more sense than POPLA:

http://parking-prankster.blogspot.co.uk/2017/12/excel-lose-parking-case-against-company.html

FranzFerdibland

Morning all,
Apologies for the delay getting back to you on this one, and thanks to all for the input thus far.

For the record, the assessor who came back as negative with this one for us was Steve Macallan.

The two prior successful appeals (exactly the same set of circumstances) were provided by Amy Butler.

It would indeed be good to see what Edna Basher came up with in the end. These decisions take such a big, and inconsistently applied leap, that they need to be robustly argued.

I'll start putting a letter together based on the relevant threads above. I suppose the main aim is to outline the manner in which the case has been mishandled, as opposed to arguing that there's no indication that an employee of ours was driving.

One would think that, per Coupon-mad's post above, given how difficult it would be to apply the 'vicarious liability' argument in court, a properly worded letter should make them see sense, although, common sense does not seem to apply much here.

Should I be adding these POPLA decisions to the thread, as well?

Edna_Basher

Hi Franz

Given that our two cases were considered by different assessors, it is clear that this is a POPLA-wide problem rather than being isolated to just one assessor. The assessors must have been given new instructions by POPLA's management - in which case, POPLA's claim that it offers an independent and impartial "appeals" service has now lost all credibility

Here's the template of the letter of complaint that we sent to Mr. Gallagher, POPLA Lead Adjudicator. This included a paragraph making it clear that that in our case, the driver was not an employee of the company that ParkingEye was pursuing for payment of the PCN. Your company's circumstances may be different.


Dear Mr. Gallagher,

Complaint: Case Ref. [606xxxxxxx], ParkingEye Limited: Parking Charge Notice xxxxxx/xxxxxx

We write to submit our formal complaint regarding Ombudsman Services Limited’s mismanagement of the above-detailed POPLA assessment concerning a Parking Charge Notice issued by ParkingEye Limited (“ParkingEye”) to our company, [ABC Limited] (“[ABC]”).

We consider that rather than merely containing procedural errors, the process through which your assessor reached [her] decision to disallow our “appeal” was fundamentally procedurally unfair and contrary the basic principles of natural justice.

Despite POPLA’s promise that its assessors will look at the evidence that is provided to them from both parties and make a decision based on this alone, your assessor did not do so. Instead, [she] introduced [her] own subjective and unsubstantiated theory that even though ParkingEye had not complied with Schedule 4 of POFA, this was not relevant because the PCN had been issued to a “company vehicle”. In [her] rationale, [she] stated that “we consider [ABC] responsible as principal rather than as hirer” and “accordingly, we do not consider a failure to follow POFA as relevant to our present reasoning. [ABC] has provided the company vehicle to the driver. We consider the company has, authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts”.

At no stage in the process did ParkingEye seek to claim that the driver had bound [ABC] to a parking contract. Instead ParkingEye sought to rely only upon Schedule 4 of the Protection of Freedoms Act 2012 to claim unpaid parking charges from [ABC] as the vehicle’s hirer. Our initial “appeal” to POPLA and our subsequent submission of comments regarding ParkingEye’s evidence was therefore focused upon demonstrating ParkingEye’s non-compliance with POFA.

Given POPLA’s promise that its professional assessors will act independently and impartially, it is unacceptable that POPLA should have sought to introduce its own legal arguments in favour of ParkingEye when ParkingEye did not itself put these forward at any stage of the process. Notwithstanding such a failure by POPLA to maintain its independence and impartiality, it would clearly be ludicrous for “appellants” to have to try to second-guess other arguments that POPLA may itself introduce in favour of the operator at the very end of the process.

Given this clear procedural unfairness, we require that POPLA reassesses this case looking only at the evidence that had been provided from both parties.

We also require your clarification in respect of your assessor’s statements that we consider the company has authorised their drivers to do what is necessary to carry out their duties using their company vehicle, which includes entering parking contracts and we do not consider a failure to follow POFA as relevant to our present reasoning - i.e. please confirm if this reasoning is a) isolated only to this particular assessor or b) now being applied across the whole of POPLA?

We very much hope that this is a case of the former which may be resolved by POPLA providing remedial retraining to the assessor involved. However, if this reasoning is a new POPLA-wide policy, it must be withdrawn immediately – otherwise POPLA will no longer have any credible claim to be an independent and impartial “appeals” service.

POPLA should understand that there can be no presumption in Law that the driver of a company vehicle must necessarily be an employee of the company acting on company business at the time that a “parking contract” is formed. This was once again confirmed in the recent case of Excel Parking Services Ltd vs Clever Car Finance Ltd (Ref. D6DP7R03.12/12/17) heard at Skipton County Court. In summing up, the judge said the case rested on whether the driver had been given either express or implied authority from the Defendant to enter into a contract on its behalf at the material time. It was incumbent on the Claimant to prove or convince her of such on the balance of probabilities, which it had failed to do.

In this particular POPLA case, ParkingEye made no attempt to prove or even argue that the driver was acting in the capacity of an employee or agent of [ABC Limited] at the time of the “parking incident”. In the absence of any evidence to demonstrate that on the balance of probabilities a contract had been formed between the two companies, your assessor had no right to favour ParkingEye by presuming that there had been.

Even if ParkingEye had made such a claim, we could have responded through the course of the “appeals” process to demonstrate that the driver of the vehicle was not an employee of [ABC Limited] and that he / she was not carrying out duties for or on behalf of [ABC Limited] at the material time and as such, there could have been no contract between ParkingEye and [ABC Limited].

Given the seriousness of this matter, we require that you give it your urgent attention. Thank you for your cooperation and we look forward to receiving your confirmation by return that this case shall be reassessed, this time in proper consideration of the relevant laws and based only upon the evidence that has been provided from both parties.

Yours sincerely,


etc.

Umkomaas

I like the letter EB. Hopefully JG will see sense, but there is ample history of him retreating into his turtle shell when cornered.

As far as FranzFerdibland’s letter to JG is concerned, there is the recent case of UK Parking Control v XYZ Ltd, Basildon which The Prankster blogged on Monday.

http://parking-prankster.blogspot.co.uk

FranzFerdibland

Wonderful, thanks Edna. I'll base ours around this as well.

If, for example, there was evidence that the driver probably was an employee, in the shape of two of our vehicles being on the site at the same time, and both going through the same appeals process, would this entirely nullify the argument that the driver could have not been an employee, for the purpose of this letter?

As far as I can tell, circumstantial stuff like that could obviously be used in court, but should be exempt from this process, so we could still have that argument in the letter, would you agree?