UKPC POPLA Appeal - awaiting response

Diego_Francis

Damn RedX you're like the flash around here! Thanks so much!

Diego_Francis

It's nearly 1am but I've finally sent my email off to the PALS office and the NHS complaints dept.


I'm so exhausted ha. All of this has made me realise how vulnerable people genuinely are without the proper education and information. I'm seriously considering taking further action regardless of my outcome.


It's a disgrace our government and our NHS trusts allow this scum to ruin one of the main reasons to be proud to be British.


Anyways, I can only wait and see now. I'll keep you updated as and when.


I've saved the email sent, if it is a success, I'll edit it and post here as a template for others to use and adapt.




Thanks again.

Diego_Francis

Dear POPLA Adjudicator,

I am the registered keeper of vehicle XXXXXX and am appealing a parking charge from UKPC on the following points:

• The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself;

• No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
  
  
• A compliant Notice to Keeper was never served - no Keeper Liability can apply.
  
  
• The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
  
  
  
  

1. The signs in this car park are not prominent, clear or legible from all parking spaces and there is insufficient notice of the sum of the parking charge itself.


There was no contract nor agreement on the 'parking charge' at all. It is submitted that the driver did not have a fair opportunity to read about any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case.

In the Beavis case, which turned on specific facts relating only to the signs at that site and the unique interests and intentions of the landowners, the signs were unusually clear and not a typical example for this notorious industry. The Supreme Court were keen to point out the decision related to that car park and those facts only:

LINK

In the Beavis case, the £85 charge itself was in the largest font size with a contrasting colour background and the terms were legible, fairly concise and unambiguous. There were 'large lettering' signs at the entrance and all around the car park, according to the Judges.

Here is the 'Beavis case' sign as a comparison to the signs under dispute in this case:

LINK

This case, by comparison, does not demonstrate an example of the 'large lettering' and 'prominent signage' that impressed the Supreme Court Judges and swayed them into deciding that in the specific car park in the Beavis case alone, a contract and 'agreement on the charge' existed.

Here, the signs are sporadically placed, indeed obscured and hidden in some areas. They are unremarkable, not immediately obvious as parking terms and the wording is mostly illegible, being crowded and cluttered with a lack of a contrasting background to help the wording stand out. It is indisputable that placing letters too close together in order to fit more information into a smaller space can drastically reduce the legibility of a sign, especially one which must be read BEFORE the action of parking and leaving the car.

The very entrance to the site, that being The Hospital in question, is a one way road that is used by emergency services. The first UKPC sign is situated on the left side of the junction, (discovered upon revisiting this site). All cars in the UK are designed for drivers to be sat in the right hand side of a motorised vehicle. Therefore this sign is easily missed upon entering the site from a busy road. Additionally, for a driver to stop and read this sign in question, it would interfere with traffic coming to the site and potentially obstruct emergency vehicles and services gaining access as this is a single carriage road with no safe access around a stationary vehicle.

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Areas of this site are unsigned and there are no full terms displayed - i.e. with the sum of the parking charge itself in large lettering - at the entrance either, so it cannot be assumed that a driver drove past and could read a legible sign, nor parked near one.

This case is more similar to the signage in POPLA decision 5960956830 on 2.6.16, where the Assessor Rochelle Merritt found as fact that signs in a similar size font in a busy car park where other unrelated signs were far larger, was inadequate:

''the signage is not of a good enough size to afford motorists the chance to read and understand the terms and conditions before deciding to remain in the car park. [...] In addition the operators signs would not be clearly visible from a parking space [...] The appellant has raised other grounds for appeal but I have not dealt with these as I have allowed the appeal.''

From the evidence I have seen so far, the terms appear to be displayed inadequately, in letters no more than about half an inch high, approximately. I put the operator to strict proof as to the size of the wording on their signs and the size of lettering for the most onerous term, the parking charge itself.

The letters seem to be no larger than .40 font size going by this guide:



LINK


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

LINK

''When designing your sign, consider how you will be using it, as well as how far away the readers you want to impact will be. For example, if you are placing a sales advertisement inside your retail store, your text only needs to be visible to the people in the store. 1-2” letters (or smaller) would work just fine. However, if you are hanging banners and want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:

LINK

''When designing an outdoor sign for your business keep in mind the readability of the letters. Letters always look smaller when mounted high onto an outdoor wall''.

Please refer to the below sample pictures, an example of such sign placements found all over of this site, many of which mounted 2 metres or more above the ground level: -

PICTURES OF A SIGN 3M HIGH ON A BUILDING WALL. (Not even bugs bunny could read it! – statement not included as the images speak for themselves)

''...a guideline for selecting sign letters. Multiply the letter height by 10 and that is the best viewing distance in feet. Multiply the best viewing distance by 4 and that is the max viewing distance.''

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms. And that’s with the assumption that one’s eyesight is relatively sound.
Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and a more eye-catching background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

(1) A trader must ensure that a written term of a consumer contract, or a consumer notice in writing, is transparent.
(2) A consumer notice is transparent for the purposes of subsection (1) if it is expressed in plain and intelligible language and it is legible.

The Beavis case signs not being similar to the signs in this appeal at all, I submit that the persuasive case law is in fact 'Vine v London Borough of Waltham Forest [2000] EWCA Civ 106' about a driver not seeing the terms and consequently, she was NOT deemed bound by them.

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:
LINK
This was a victory for the motorist and found that, where terms on a sign are not seen and the area is not clearly marked/signed with prominent terms, the driver has not consented to - and cannot have 'breached' - an unknown contract because there is no contract capable of being established. The driver in that case (who had not seen any signs/lines) had NOT entered into a contract. The recorder made a clear finding of fact that the plaintiff, Miss Vine, did not see a sign because the area was not clearly marked as 'private land' and the signs were obscured/not adjacent to the car and could not have been seen and read from a driver's seat before parking.

Please refer to below images taken of the Keeper’s vehicle and the area where the vehicle was parked. The pictures speak for themselves in regards to poor signage:

PICTURES OF PARKING AREA

So, for this appeal, I put this operator to strict proof of where the car was parked and (from photos taken in better lighting conditions) how their signs appeared on that date, roughly at that time of day, from the angle of the driver's perspective. Equally, I require this operator to show how the entrance signs appear from a driver's seat, not stock examples of 'the sign' in isolation/close-up. I submit that full terms simply cannot be read from a car before parking and mere 'stock examples' of close-ups of the (alleged) signage terms will not be sufficient to disprove this.

2. 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 customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights - is key evidence to define what this operator is authorised 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 – please refer to time discrepancies on the PCN ticket in the image below this paragraph) 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 authorised can give rise to a charge and of course, how much the landowner authorises 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).

PICTURE OF PCN = TIME FIRST SEEN AND ISSUE TIME – An hour difference. Does this add to the case or is this irrelevant?



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 that 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


3. A compliant Notice to Keeper was never served - no Keeper Liability can apply.

This operator has not fulfilled the 'second condition' for keeper liability as defined in Schedule 4 and as a result, they have no lawful authority to pursue any parking charge from myself, as a registered keeper appellant. There is no discretion on this matter. If Schedule 4 mandatory documents are not served at all, or in time (or if the document omits any prescribed wording) then keeper liability simply does not apply.

The wording in the Protection of Freedoms Act (POFA) 2012 is as follows:

''Right to claim unpaid parking charges from keeper of vehicle:
4(1) The creditor has the right to recover any unpaid parking charges from the keeper of the vehicle. (2) The right under this paragraph applies only if

(a) the conditions specified in paragraphs 5, 6*, 11 and 12 (so far as applicable) are met;

*Conditions that must be met for purposes of paragraph 4:
6(1) ''The second condition is that the creditor (or a person acting for or on behalf of the creditor)— (a)has given a notice to driver in accordance with paragraph 7, followed by a notice to keeper in accordance with paragraph 8. This is re-iterated further ‘If a notice to driver has been given, any subsequent notice to keeper MUST be given in accordance with paragraph 8.’

The NTK must have been delivered to the registered keeper’s address within the ‘relevant period’ which is highlighted as a total of 56 days beginning with the day after that on which any notice to driver was given. As this operator has evidently failed to serve a NTK, not only have they chosen to flout the strict requirements set out in PoFA 2012, but they have consequently failed to meet the second condition for keeper liability. Clearly I cannot be held liable to pay this charge as the mandatory series of parking charge documents were not properly given.


4. The operator has not shown that the individual who it is pursuing is in fact the driver who was 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.

Where a charge is aimed only at a driver then, of course, no other party 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 because the fact remains I am only 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, because they cannot use the POFA in this case, 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 2012 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 is NOT attempting to transfer the liability for the charge using the Protection of Freedoms Act 2012.

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.''





end of draft.

Got less than 24 hours to submit this - no pressure - do I need to add anything else? Apart from details of PCN, reference no's and my own details of course.

Diego_Francis

I got a reply email from PALS today saying they aren't the department who deal with parking tickets and so have forwarded my original email on to the correct department.

I've read the FAQ on POPLA and today IS the last day to appeal. It can be extended if evidence is provided to explain why a submission is late but I really don't want to rely on that and get it my appeal sent off TODAY.

The first draft above this post, I would appreciate some feedback on.

Questions I wish to ask based on it are:

1. I believe I have blown my feet off and told the 'operator' that I was the driver and the ticket was on the seat. It's a doubt I've had for some time and rather appeal with this worst case scenario in mind. Do points #3 and #4 in the appeal above need removed?

2. I haven't mentioned in the appeal about having proof of the ticket. Mad-Coupon said above about this. However if I have stated the ticket was on the seat... can I still not argue that a ticket was purchased and displayed and that the pictures taken are in poor lighting, reflections are in the windows making it difficult to see the dashboard clearly and that due to poor signage that technically the driver hadn't entered into a contract as they were unaware of the T's&C's?

3. What else can I add in? I strongly feel my circumstances should be there but I won't add that unless advised to do so.


Again I need feedback today so I can get editing and submitting tonight when I get home from work.

Thank you in advanced for taking the time to read through and comment.

Diego_Francis

Sorry for posting to myself again but I could do with someone's advice to the above two posts.


I'm not after a full review, just if my questions could be answered and then I can submit the appeal ASAP


thanks

Coupon-mad

Wrong about today being the final day - POPLA codes last for 32 days, believe me.

PICTURE OF PCN = TIME FIRST SEEN AND ISSUE TIME – An hour difference. Does this add to the case or is this irrelevant?

I'd say irrelevant.

If you never received a NTK, you will win.

Diego_Francis

Thanks for that Coupon-Mad.

I searched the forum and this is the first time I've heard about a 32day limit. Could this be made clear on the Newbies thread?

I submitted at 11pm last night. I kept that irrelevant part in. In fact I actually took out point #4 too. I can only hope point #1 wins the case because the evidence used is good enough imo.

Can only wait now and forget about the damn thing until then.

Diego_Francis

UKPC have cancelled the PCN!

Got a reply from my complaint to the department PALS forwarded me on to.

It's such a relief but I still feel angry that UKPC haven't apologised directly. They could have cancelled it months ago after my first appeal to them.

I wish there was a way I could claim compensation from them for the undue stress caused to me and my family.

If there is I want to know. Otherwise another success story.

I'll add more info on how I won this stupid pointless battle later today so others can use it to fight their own.

Thanks for all your help.

Quentin

Have you got confirmation from UKPC they have cancelled?


Until you do then keep all your documents in case they don't!

Diego_Francis

All charges were dropped after emailing PALS with a !!!!-storm of a letter who in turn sent it on to UKPC. I had already submitting the POPLA Appeal but POPLA emailed the next day that charges were dropped and a day later UKPC sent a weak apologetic standard letter via email too.

Thanks to above posters for guidance and help.