PCN - Appeal Rejected. Couple Q's

Umkomaas

RiotLightbulb wrote: »

So what are the options if a POPLA is unsuccessful? Go down the road of County Court?

Im confused now as to what to do. I guess i approach Land owners again first.

Just ignore it, there is no obligation on the appellant to pay in the event of a loss at POPLA. If the parking company want payment, they will have to instigate a small claim via the small claims court.

Quentin

RiotLightbulb wrote: »

So what are the options if a POPLA is unsuccessful? Go down the road of County Court?

This will sound like a stuck record.


If you lose at popla is covered in the. Newbies FAQ thread (#4)

You don't pay, but go into the debt collectors stage.

You ignore everything you get except a lbcca or Court correspondence.

If it comes to this then come back at that time for advice on how to defend this

Coupon-mad

Please show us your POPLA appeal draft. You have not said if this is a 'golden ticket'? Now you have read the NEWBIES thread post #3, you will have seen an example of one.

RiotLightbulb

Coupon-mad wrote: »

Please show us your POPLA appeal draft. You have not said if this is a 'golden ticket'? Now you have read the NEWBIES thread post #3, you will have seen an example of one.

I believe i am NOT a golden ticket holder. I asked about that on the original Golden Ticket thread.

Thanks Coupon-mad i will post my draft here when done. I want to include a section that the signage was positioned poorly. The signs are positioned as the driver needs to change lanes and check their near-side blind spot. Would this be a valid argument for poor signage?

Coupon-mad

Yes you just add your words to the already deliberately long 'unclear signs' template.

RiotLightbulb

So this is just the unclear signs first draft i have put together today.

Using the template i have taken out what i believe not to be relelvent and entered in my own arguments for unclear signage. with hyperlinks removed so i can post (please let me know if the pictures work and support my argument)

Im not sure if i need to remove more of the original template and/or try and extend my arguments further.

Feedback appreciated.

---

The signs in this car park are not prominent, clear or legible from all parking spaces, deliberately misleading, inappropriately positioned 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:

//imgur. com/a/AkMCN

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.

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

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

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Here a Sign has no mention of a parking charge:

//imgur. com/iEqJ26Z

Signs are also deliberately misleading, by having the most prominent lettering marked 'Hotel Guests'. Drivers who read such signs who are not hotel guests will dismiss it as not being relevant to themselves:

//imgur. com/XbGlbBi

This case also points out the positioning of the Signs to be unsuitable to read while driving.
Cars departing from the roundabout to enter the Services are in the right-hand lane. While taking a sharp bend to the left the driver is presented with route options by way of road markings and a manoeuvre must be made to select the correct lane to the car park.

//imgur. com/vTpgQM7

As any safe driver will know changing lanes requires use of mirrors, checking of blind spot, signalling, and manoeuvring.
With the road bending around to the left sharply close observation is required in the drivers mirrors and blind spot to ensure no collision with other traffic. It is during this time that the entrance signs are displayed. I argue here that these signs have been deliberately placed when drivers are distracted with making the manoeuvre to increase the chances that the driver does not see the signs.

Additionally the Parking sign is positioned to the right of the road as the road itself bends to the left. Drivers will be looking down the road ahead to the left and not to the right. Again suggesting that the signs are deliberately positioned out of a drivers natural viewing angle.

I support this argument by evidence of the following straight piece of road that follows that could be used to display the parking notices but does not. The only signs along the straight piece of road informs drivers of heavy goods vehicles not to park in the main car park.

//imgur. com/0ed00sn

Before entering the car park the driver has to; Navigate a bend; Choose a lane; And be aware of the forthcoming hazards of entering a car park such as pedestrians and children walking out between cars. Again I argue that the signs have been positioned so as not to be seen the driver who is pre-occupied with the tasks above.
Additionally the driver is making a turn to the right and looking right and the signs have been positioned to the left-hand side. As mentioned previously with signs being positioned on bends they have been purposely situated out of a drivers natural viewing angle as they navigate the road.

//imgur. com/ZELT6lM

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:

org/newlayout/testcases/css/sec526pt2.htm

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

com/help-center/sign-letter-height-visibility-chart.aspx

''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!!!8221; 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!!!8221; or even larger.''

...and the same chart is reproduced here:

/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

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

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

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

org/ew/cases/EWCA/Civ/2000/106.html

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

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

Fruitcake

RiotLightbulb wrote: »

So this is just the unclear signs first draft i have put together today.

Using the template i have taken out what i believe not to be relelvent and entered in my own arguments for unclear signage. with hyperlinks removed so i can post (please let me know if the pictures work and support my argument)

Im not sure if i need to remove more of the original template and/or try and extend my arguments further.

Feedback appreciated.

---

The signs in this car park are not prominent, clear or legible from all parking spaces, deliberately misleading, inappropriately positioned 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:

1) //imgur. com/a/AkMCN

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.

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

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

It is vital to observe, since 'adequate notice of the parking charge' is mandatory under the POFA Schedule 4 and the BPA Code of Practice, these signs do not clearly mention the parking charge which is hidden in small print (and does not feature at all on some of the signs). Here a Sign has no mention of a parking charge:

2) //imgur. com/iEqJ26Z

Signs are also deliberately misleading, by having the most prominent lettering marked 'Hotel Guests'. Drivers who read such signs who are not hotel guests will dismiss it as not being relevant to themselves:

3) //imgur. com/XbGlbBi

This case also points out the positioning of the Signs to be unsuitable to read while driving.
Cars departing from the roundabout to enter the Services are in the right-hand lane. While taking a sharp bend to the left the driver is presented with route options by way of road markings and a manoeuvre must be made to select the correct lane to the car park.

4) //imgur. com/vTpgQM7

As any safe driver will know changing lanes requires use of mirrors, checking of blind spot, signalling, and manoeuvring.
With the road bending around to the left sharply close observation is required in the drivers mirrors and blind spot to ensure no collision with other traffic. It is during this time that the entrance signs are displayed. I argue here that these signs have been deliberately placed when drivers are distracted with making the manoeuvre to increase the chances that the driver does not see the signs.

Additionally the Parking sign is positioned to the right of the road as the road itself bends to the left. Drivers will be looking down the road ahead to the left and not to the right. Again suggesting that the signs are deliberately positioned out of a drivers natural viewing angle.

I support this argument by evidence of the following straight piece of road that follows that could be used to display the parking notices but does not. The only signs along the straight piece of road informs drivers of heavy goods vehicles not to park in the main car park.

5) //imgur. com/0ed00sn

Before entering the car park the driver has to; Navigate a bend; Choose a lane; And be aware of the forthcoming hazards of entering a car park such as pedestrians and children walking out between cars. Again I argue that the signs have been positioned so as not to be seen the driver who is pre-occupied with the tasks above.
Additionally the driver is making a turn to the right and looking right and the signs have been positioned to the left-hand side. As mentioned previously with signs being positioned on bends they have been purposely situated out of a drivers natural viewing angle as they navigate the road.

6) //imgur. com/ZELT6lM

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:

org/newlayout/testcases/css/sec526pt2.htm

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

com/help-center/sign-letter-height-visibility-chart.aspx

''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!!!8221; 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!!!8221; or even larger.''

...and the same chart is reproduced here:

/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html

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

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

So, a letter height of just half an inch, showing the terms and the 'charge' and placed high on a wall or pole or buried in far too crowded small print, is woefully inadequate in an outdoor car park. Given that letters look smaller when high up on a wall or pole, as the angle renders the words less readable due to the perspective and height, you would have to stand right in front of it and still need a stepladder (and perhaps a torch and/or magnifying glass) to be able to read the terms.

Under Lord Denning's Red Hand Rule, the charge (being 'out of all proportion' with expectations of drivers in this car park and which is the most onerous of terms) should have been effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear and prominent with the terms in large lettering, as was found to be the case in the car park in 'Beavis'. A reasonable interpretation of the 'red hand rule' and the 'signage visibility distance' tables above and the BPA Code of Practice, taking all information into account, would require a parking charge and the terms to be displayed far more transparently, on a lower sign and in far larger lettering, with fewer words and more 'white space' as background contrast. Indeed in the Consumer Rights Act 2015 there is a 'Requirement for transparency':

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

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

This judgment is binding case law from the Court of Appeal and supports my argument, not the operator's case:

org/ew/cases/EWCA/Civ/2000/106.html

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

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

Your pictures produced in the order you posted, which I've numbered to make it easier for other to reference.

1) http://imgur.com/a/AkMCN

2) http://imgur.com/iEqJ26Z

3) http://imgur.com/XbGlbBi

4) http://imgur.com/vTpgQM7

5) http://imgur.com/0ed00sn

6) http://imgur.com/ZELT6lM

Fruitcake

Image 2) is not saved by Beavis. The £100 charge for failure to comply, if it's there, is buried in tiny font and unreadable.
I can't see, but does it say what the ANPR data will be used for? It's another failure if it doesn't.

Fruitcake

Image 3) does not apply to non-hotel guests. The Ts and Cs are in tiny font, if they are there at all, and unreadable to a passing driver who would therefore not know what the £100 charge is for.
Similar comment to above concerning the use of ANPR camera data.

RiotLightbulb

Fruitcake wrote: »

Image 2) is not saved by Beavis. The £100 charge for failure to comply, if it's there, is buried in tiny font and unreadable.
I can't see, but does it say what the ANPR data will be used for? It's another failure if it doesn't.

Thanks for taking a look Fruitcake. I have no idea if it says what the ANPR data will be used for, but its clearly too tiny for an person driving by to read. I guess i need to push the failure of the signs a bit more in my appeal atm.
Will continue work on it tomorrow.