POPLA appeal Euro Car Parks - Contract Hire Car

Hospickle_Parking

My family are very good at getting tickets and I always seem to be the one they rely on to save them!

Anyway, this PCN was 'collected' by a family member. I happen to be the registered keeper of the car so I got the PCN by post the PPC (Euro Car Parks) having got my name from the contract hire firm.

I appealed and got a POPLA code.

I'm not sure the circs of the case are relevant but the car was parked for several hours in the car park. A camera detected the 'crime'. The driver inputted the wrong reg number into the machine. All 7 letters wrong!! (Don't ask!).

Anyway this is my POPLA appeal letter. Please could someone take a look and tell me where it might be improved?

TIA

Dear Sir


POPLA Ref. xxxxxxxx
Euro Car Parks PCN Ref. xxxxxxxx
Vehicle Reg xxxx

I write to lodge details of my dispute with Euro Car Parks Limited (henceforth described as 'ECPL') in respect of the above-detailed Parking Charge Notice xxxx issued by ECPL in respect of an alleged breach of terms and conditions of parking at xxxx on xxx/2017.

The above-detailed vehicle is on long-term lease to me and I confirm that I am its keeper and hirer for the purpose of the corresponding definitions under the Protection of Freedoms Act 2012

I set out below why I am not liable for this parking charge:

1) ECPL failed to comply with the strict requirements of POFA
2) ECPL has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
3) The car park signage was inadequate.

1) ECPL failed to comply with the strict requirements of POFA

In the case of a PCN issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of POFA to claim unpaid parking charges from a vehicle's hirer, an operator must:

1) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with POFA, Schedule 4, Paragraph 8 or 9 (as the case may be);

2) be provided with the documents specified under POFA, Schedule 4, Paragraph 13 (2) and;

3) deliver a Notice to Hirer to the vehicle's hirer in full compliance with POFA, Schedule 4, Paragraph 14.

POPLA has promised that my case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and I expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that ECPL has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (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), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). ECPL did not provide us with a copy of any of these documents.

Further, ECPL's Notice to Hirer did not comply with the requirements of Paragraph 14(5) including:

Contrary to the requirements of Paragraph 14(5)(a), ECPL's PCN to me did not inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the Notice to Keeper) may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), ECPL's PCN to me did not refer the hirer to the information contained in the Notice to Keeper; Contrary to the requirements of Paragraph 14(5)(c), ECPL's PCN to me did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.

POPLA must not attempt to presume that the driver is appealing this PCN. For the avoidance of doubt, I am simply exercising my right as keeper to appeal this PCN in my own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.

2) ECPL has failed to give me evidence that they have a contractual right to pursue charges or form contracts with drivers using this particular car park as they must do to claim payment from the driver.

3) 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.

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
<image inserted>

As a comparison here is the sign in the xxxxx car park

<image inserted>

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). 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 inserted

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

link inserted

''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:

link inserted

''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:

link inserted

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.

Coupon-mad

Change this to a, b, c or the numbering gets confusing:

1) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with POFA, Schedule 4, Paragraph 8 or 9 (as the case may be);

2) be provided with the documents specified under POFA, Schedule 4, Paragraph 13 (2) and;

3) deliver a Notice to Hirer to the vehicle's hirer in full compliance with POFA, Schedule 4, Paragraph 14.

Change this to hirer (and anywhere else where you called yourself 'keeper' should be 'hirer'):

POPLA must not attempt to presume that the driver is appealing this PCN. For the avoidance of doubt, I am simply exercising my right as [STRIKE]keeper[/STRIKE] hirer to appeal this PCN in my own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.

This should be the template about 'no landowner authority' from the NEWBIES thread:

2) ECPL has failed to give me evidence that they have a contractual right to pursue charges or form contracts with drivers using this particular car park as they must do to claim payment from the driver.

And you can add the template point from the NEWBIES thread that the 'Appellant has not been shown to be the individual liable'. I normally place it as #2, after he first point that explains why there is no hirer/keeper liability.

Hospickle_Parking

Here is my now even longer appeal!!

Is it worth inserting hyperlinks in a PDF document I will send to POPLA?

POPLA Ref.xxxx
Euro Car Parks PCN Ref. xxxx
Vehicle Reg xxx

I write to lodge details of my dispute with Euro Car Parks Limited (henceforth described as 'ECPL') in respect of the above-detailed Parking Charge Notice xxxxx issued by ECPL in respect of an alleged breach of terms and conditions of parking at xxxx Car Park on xxxx2017.

The above-detailed vehicle is on long-term lease to me and I confirm that I am its hirer for the purpose of the corresponding definitions under the Protection of Freedoms Act 2012

I set out below why I am not liable for this parking charge:

A) ECPL failed to comply with the strict requirements of POFA
ECPL have not shown that the individual who it is pursuing is in fact the driver who was liable for the charge
C) ECPL has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.
D) The car park signage was inadequate.

A) ECPL failed to comply with the strict requirements of POFA

In the case of a PCN issued in respect of a hire vehicle, in order to have the right to use the provisions of Schedule 4 of POFA to claim unpaid parking charges from a vehicle's hirer, an operator must:

1) deliver a Notice to Keeper to the vehicle-hire firm in full compliance with POFA, Schedule 4, Paragraph 8 or 9 (as the case may be);

2) be provided with the documents specified under POFA, Schedule 4, Paragraph 13 (2) and;

3) deliver a Notice to Hirer to the vehicle's hirer in full compliance with POFA, Schedule 4, Paragraph 14.

POPLA has promised that my case will be independently reviewed by one of its professional assessors taking into consideration the relevant law, guidance and standards and the BPA Code of Practice. The requirements set out in Schedule 4 of POFA are quite straightforward for any reasonable professional to understand and I expect that all POPLA assessors shall have a clear understanding of this particular piece of relevant law. It should therefore be very obvious to POPLA that ECPL has failed to comply with Schedule 4 of POFA.

The relevant provisions concerning hire vehicles are set out in Paragraphs 13 and 14 of Schedule 4, POFA; the conditions that the Creditor must meet in order to be able to hold the Hirer liable for the charge are set out in Paragraph 14.

Paragraph 14 (2) (a) specifies that in addition to delivering a Notice to Hirer within the relevant period, the Creditor must also provide the Hirer with a copy of the documents mentioned in paragraph 13(2) (i.e. (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), together with a copy of the Notice to Keeper (i.e. the notice that had originally been sent to the lease company (as Registered Keeper)). ECPL did not provide us with a copy of any of these documents.

Further, ECPL's Notice to Hirer did not comply with the requirements of Paragraph 14(5) including:

Contrary to the requirements of Paragraph 14(5)(a), ECPL's PCN to me did not inform the hirer that by virtue of this paragraph any unpaid parking charges (being parking charges specified in the Notice to Keeper) may be recovered from the hirer;
Contrary to the requirements of Paragraph 14(5)(b), ECPL's PCN to me did not refer the hirer to the information contained in the Notice to Keeper; Contrary to the requirements of Paragraph 14(5)(c), ECPL's PCN to me did not warn the hirer that if, after the period of 21 days beginning with the day after that on which the notice to hirer is given, the amount of unpaid parking charges referred to in the notice to keeper under Paragraph 8(2)(f) or 9(2)(f) (as the case may be) has not been paid in full, the creditor will (if any applicable requirements are met) have the right to recover from the hirer so much of that amount as remains unpaid.

POPLA must not attempt to presume that the hirer is appealing this PCN on behalf of the driver. For the avoidance of doubt, I am simply exercising my right as hirer to appeal this PCN in my own name in exactly the same way as any other vehicle keeper or hirer is entitled to do.







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
!!!8220;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 !!!8216;reasonable presumption!!!8217; 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.''



C) ECPL has no standing or authority to pursue charges or to form contracts with drivers using this particular car park.

As this operator does not have proprietary interest in the land then I require that they produce an un-redacted 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) 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).

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



D) The car park signage was inadequate.

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.

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 here is the sign in the Goulden St car park





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). 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 inserted

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

link inserted

''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 or 2" letters ...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 much larger.''

The chart is reproduced here:



''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:

link inserted

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.

Coupon-mad

Is it worth inserting hyperlinks in a PDF document I will send to POPLA?

Yes we do suggest the hyperlinks, such as to the signage font size articles, but make sure any pictures (like the Beavis case sign, and your sign) are shown as images in the document to make it pretty, and to keep the Assessor awake!

You have a POPLA appeal that should win on 'no hirer liability' or the PPC will give up.

A few 'keepers' here need changing to 'hirer' to suit your situation:

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 or hirer appellant, yet no POFA 'keeper/hirer 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. Even a hired/leased vehicle can be driven by any person (with the consent of the owner) as long as the driver is insured, which can be under their own fully comprehensive policy. 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 hirer/lessee [STRIKE]keeper[/STRIKE] without a valid Notice to Hirer with the accompanying documentation required under statute.

As the [STRIKE]keeper[/STRIKE] hirer/lessee 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 [STRIKE]keeper[/STRIKE] hirer, and ONLY Schedule 4 of the POFA (or evidence of who was driving) can cause a [STRIKE]keeper[/STRIKE] hirer appellant to be deemed to be the liable party.

Hospickle_Parking

Appeal submitted.

Thanks Coupon-mad.

You should get an honour for services to motorists or against scamming B***ards! I mean that too.

Hospickle_Parking

I've now got to rebut ECP's 29 page rambling, irrelevant arguments.

1. They have included many photographs of signage in this small car park. None of the signs clearly indicate what the penalty for non-complying is so this is the point I will make in my rebuttal.

2. To my point C about not having the authority to collect 'fines', part of a document they've produced in evidence seems to show that 'ECP holdings' have contracted ECP car parks to run the car park.
It's dated and is 'in date' at the time of the incident. It's a photocopied document which refers to BPA Code of Practice. Not sure what to make of this 'evidence' of theirs.

3. To my argument that their case is not compliant with POFA they make irrelevant points which ignore my original argument above. Do I need to restate my argument or just state their argument is irrelevant? Hilariously, their evidence that the PCN complies with POFA is a sample PCN not the one they actually sent me!

Amongst other rubbish they say this in their document

"Mr xxx xxxx then appealed the PCN and confirmed he was the hirer on the day in question of the vehicle, however he did not provide the details of the driver. Therefore the liability remains with the hirer Mr xxx xxxx.
Our PCN (Parking Charge Notice) is the first communication with the registered keeper !!!8211; this is referred to as the Notice to Keeper or Notice To Owner
The PCN (NTK/NTO) has been checked by both the BPA and the IPC and we have confirmation that our PCN (NTK/NTO) and has been approved as compliant with POFA
The PCN (NTK/NTO) has been checked by Gladstone Solicitors who specialise in assisting private car park operators !!!8211; legal advice and pre legal advice with regards signage and adhering to POFA and both code of practice
Please be advised once the registered keeper has been sent the PCN (NTK/NTO) if there is no response, payment, appeal, serviceable address of the driver !!!8211; ECP process a Notice To Keeper !!!8211; this is a !!!8220;reminder letter!!!8221; and sent in reference to the PCN (NTK/NTO) that has not been responded to.
If we are in receipt of a serviceable address of the driver !!!8211; the PCN (NTK/NTO) is re-issued
If the registered keeper is in receipt of the PCN (NTK/NTO) and has passed to the driver and the driver appeals !!!8211; we will respond to the appeal strictly following the code and ensure any/all communication is sent to the driver (we would not at this stage re-issue the PCN)
We have been advised that the above is standard practice for all private car park operators in regards to PCN (NTK/NTO) issued on Automatic Number Plate Recognition car parks."

I'm tempted to just reply '!!!!!!!!'... but what should I say!?

Guys_Dad

ECP Holdings have authorised ECP carparks???

Who authorised ECP Holdings?? Get that contract!

Hospickle_Parking

Maybe ECP Holdings owns the land?

The_Deep

As you probaably know, this is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of contracts for alleged parking offences.

Parking Eye, Smart and a smaller company have already been named and shamed, as has Gladstones Solicitors, and BW Legal, (who take hundreds of these cases to court, and nearly always lose), who have also been reported to the regulatory authority.

The problem has become so rampant that MPs have agreed to enact a Bill to regulate these scammers. Watch the video of the Second Reading in the HofC recently.

http://parliamentlive.tv/event/index/2f0384f2-eba5-4fff-ab07-cf24b6a22918?in=12:49:41

and complain in the most robust terms to your MP. With a fair wind most of these companies may well be put out of business by Christmas.

Hospickle_Parking

This is all I intend to rebut ECP's evidence.


1. ECP's assertion that their documentation has been checked by Gladstone's solicitors is irrelevant. As I stated in my earlier submission they have very clearly failed to comply with the strict requirements of POFA in order to claim from a hirer, ie me.

Their evidence that the PCN is compliant is a blank PCN with some highlighting on it. It proves nothing in this case.

2. Their exhibit 'fig 4' seems to contain an agreement between ECP Holdings Ltd and ECP to allow ECP to operate the car park. No evidence is produced as to what ECP Holdings is and how it is connected to Goulden St car park. Are we to guess? I contend that this document is designed to give the impression that ECP have the authority to take legal action to recover charges but that they have no such authority.

3. The signage at the car park as evidenced by ECP's own photographs proves that it is unclear and misleading. It does not comply with the BPA's own criteria.

4. ECP's whole 29 pages of 'argument' is just a photocopied list of documents and previously used material which is irrelevant to this particular case and can be dismissed.

Hospickle_Parking

@ The deep

Should I include your points in my rebuttal of ECP's evidence to POPLA or maybe wait to do that if they make a claim in the county court?

I'm thinking I could mention Gladstone's where I rebut the evidence from ECP that Gladstone's have confirmed the PCN is POFA compliant!