Gladstones County Court Claim Form Received 13/08/18

dredd29

Hi all

I have been defending my parking ticket religiously following the Newbie Thread and now the unexpected has happened !!! I received through the post County Court Claim Form from Gladstones so problem one begins.

I went abroad on holiday on 10th August and returned today 28th August to find this in the mail. The Claim Form issue date is 13th August and it says I have 14 days of the date of filling this acknowledgement of service. 14 days was yesterday 27th August so guess have to phone the court telephone number tomorrow and proof I have been out of the country for 18 days.

Obviously I am going to defend in the MSE spirit so will update the thread once spoke to the Court tomorrow to hopeful gain an extension of time.

Any help / advice / words of wisdom at this stage would be appreciated !

Is there any base information I need to post first of to start the forum advice going ?

Your help would be very much appreciated ! Thanks.

Coupon-mad

The Claim Form issue date is 13th August and it says I have 14 days of the date of filling this acknowledgement of service.

No it doesn't. It says 14 days from service (the day it plopped through the letterbox and you are not out of time to do the VERY EASY online AOS stage tonight, right now).

14 days was yesterday 27th August so guess have to phone the court telephone number tomorrow and proof I have been out of the country for 18 days.

No.

The NEWBIES thread tells you how to easily do the AOS tonight.

Is there any base information I need to post first of to start the forum advice going

Tell us the name of the PPC, what sort of car park (residential or retail or what?).

And what's the contravention, and are you the registered keeper, and did you appeal or not? Did you admit to who was driving in any appeal?

KeithP

With a Claim Issue Date of 13th August you have until 1st September to do the Acknowledgement of Service to buy you an extra fourteen days to file your Defence.

Detailed instructions on how to do the AoS can be found in a Dropbox file in the second post of the NEWBIES FAQ sticky thread.

About ten minutes work - should be able to fit that in before the weekend.

dredd29

Hi Coupon-mad / KeithP

I registered on Moneyclaim.gov.uk last night and lodged my AoS. Showing on my account as received 24 hours later no confirmation yet as accepted.

Thanks for your help on this. Requested information as follows:

Tell us the name of the PPC - Minster Baywatch

What sort of car park ? - Leisure / Retail complex which had an access road up to the car park areas with no road markings in other words looked like a public road

What's the contravention ? - Minster Baywatch have it on their correspondence as (J - Vehicle was not parked in a marked bay or designated parking area)

Are you the registered keeper ? - Yes I am the registered keeper

Did you appeal or not ? - Yes appealed using MSE templates first to the PPC rejected then to POPLA using MSE template which was rejected. I did not respond to Gladstone 'Letter before claim' I ignored this letter.

Did you admit to who was driving in any appeal ? - No I didn't admit who was driving in any appeals letter. Would it help if I posted on this thread a copy of my POPLA appeal ?

Your continued help and advice would be appreciated.

Thank you

Coupon-mad

Yes show us your POPLA appeal and the decision that you got back.

dredd29

Hi Coupon-mad

Thanks for your help. My POPLA appeal submitted to POPLA as follows:


Dear POPLA Adjudicator,

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


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

2. The operator has not shown that the individual who it is pursuing is in fact the driver who was liable for the charge

3. No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice

4. 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


1. 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.


2. 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.''


3. 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) 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



4. 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:

XXXX

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:

XXXX

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:

XXXXX

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

XXXX

''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:

XXXX

''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:

XXXX

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.

Regards,

dredd29

Then my evidence submitted below in response to MBL evidence submitted:

Dear POPLA Assessor,

Ref. POPLA appeal XXXXXX

In response to the "evidence pack" Minster Baywatch Limited (will be referrred to as MBL from now on) have submitted, In making their assessment I ask the POPLA assessor to consider the following in further support of my original POPLA appeal as submitted on 2018. Including below my rebuttal below.

No standing to make contracts with drivers

I do not believe that MBL have any title in this land and no BPA compliant landowner contract assigning rights to charge and enforce in the courts in their own right.

MBL have stated that the land the vehicle entered was in private land and has been given authorisation from the landlord to manage the land. They have provided terms and conditions as shown in their evidence pack under ‘other evidence’ page 39.
MBL have failed to provide strict proof to POPLA and myself with an unredacted, contemporaneous copy of the contract between the operator and the landowner, not just another agent or retailer or other non-landholder, because it will still not be clear that the landowner has authorised the necessary rights which have been properly assigned to MBL.
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

BPA CoP paragraphs 7.1 & 7.2 dictate some of the required contract wording. I put MBL to strict proof of the contract terms with the actual landowner (not a lessee or agent). MBL have no legal status to enforce this charge because there is no assignment of rights to pursue PCNs in the courts in their own name nor standing to form contracts with drivers themselves. They do not own this car park and appear to have a bare licence to put signs up and issue charge notices to vehicles that have been on site, merely acting as agents. No evidence has been supplied lawfully showing that Care MBL are entitled to pursue these charges in their own right.

I require MBL to provide a full copy of the contemporaneous, signed & dated (unredacted) contract with the landowner. I say that any contract is not compliant with the requirements set out in the BPA Code of Practice and does not allow them to charge and issue proceedings for this sum for this alleged contravention in this car park. In order to refute this it will not be sufficient for the Operator merely to supply a site agreement or witness statement, as these do not show sufficient detail (such as the restrictions, charges and revenue sharing arrangements agreed with a landowner) and may well be signed by a non-landholder such as another agent. In order to comply with paragraph 7 of the BPA Code of Practice, a non-landowner private parking company must have a specifically-worded contract with the landowner - not merely an 'agreement' with a non-landholder managing agent - otherwise there is no authority.

The reason that the contract cannot merely be signed by a lessee, occupier or managing agent is found in the case of Devere Parking Services v Mr X, claim number A3QZ5517at Bournemouth on 3/4/2014, where DJ Williams decided the claim must fail despite a witness statement from an agent/occupier. This was because the contract was not in the name of the landowner. The occupier/agent could theoretically have permission to sign the contract, but even if they did, they would have to sign 'on behalf of' the landowner, not themselves. So I contend MBL only have a contract with a managing agent or lessee and so this is not sufficient to prove the actual landowner has authorised their operation. In a recent case in September 2014 (about Highview Parking) the Assessor concluded 'I am unable to determine who the landowner is and so cannot find that the operator has the authority of the landowner for their activities. Therefore I cannot find that the charge notice is valid.'

MBL evidence on page 39 under ‘other evidence’ agreement purposely choose to cover up with black blocks the vital signatures on the contract agreement. I bring to your attention POPLA decision under ‘Verification Code’ 2613436751 the decision was decided as successful on the grounds of see RED BOLD DECISION BELOW:

Verification Code

2613436751

Decision Successful
Assessor Name
Assessor summary of operator case
The operator’s case is that the appellant parked without a parking ticket or permit.

Assessor summary of your case
The appellant has raised several grounds of appeal. These are as follows: • The signage is not prominent, clear or legible. • No driver liability. • The Notice to Keeper is not compliant. • No evidence of landowner authority. • The parking charge envelope is not compliant.

Assessor supporting rational for decision
The operator has provided photographic evidence of the terms and conditions, as displayed at the site, which states “Permit Holders Only; A Parking Charge Notice (PCN) of £60 will be issued failing to display a current, valid permit in the front windscreen at all times; A discounted rate of £30 is offered if PCN is paid within 14 days”. The operator has provided photographic evidence of the vehicle #### ### at the site, on 10 November 2016. The operator has issued the Parking Charge Notice (PCN) as the appellant parked without a parking ticket or permit. The appellant has raised several grounds of appeal. These are as follows: • The signage is not prominent, clear or legible. • No driver liability. • The Notice to Keeper is not compliant. • No evidence of landowner authority. • The parking charge envelope is not compliant. As the appellant has questioned the operator’s authority to issue the PCN, I would expect the operator to provide a copy of the landowner agreement in response to this ground of appeal. Section 7 of the British Parking Association (BPA) Code of Practice (CoP) sets out the requirement for operators to own the land or to have written authority from the landowner to operate on the land. The operator has provided a copy of the landowner agreement; however the operator has redacted the names of the people who have signed the contract. As I am unable to determine who has signed the contract, I am unable to conclude if the PCN has been issued correctly. Accordingly, I must allow the appeal. I note that the appellant has raised further grounds of appeal; however I do not need to look at these as I have allowed the appeal



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 cannot transfer the liability for the charge using the POFA.

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.''

MBL has stated that the signage displayed is in compliance with the BPA’s code of practice. As shown in their evidence pack ‘signage & site photos’.
I put it to MBL they have failed to provide a copy of the BPA code of practice for the signage being approved.
MBL has failed to state the height and position of each sign in their response. Signs showing the detailed terms and conditions must be at least 450mm x 450mm.

Unreadable signage breaches Appendix B (18.3) of the BPA Code of Practice which states that terms on entrance signs must be clearly readable without a driver having to turn away from the road ahead. Therefore, it is the fault of MBL in the drafting and positioning of the signs that a driver did not see them at all.

As stated in the BPA code 18.1 “You must use signs to make it easy...to find out what your terms and conditions are.”BPA code 18.2 states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of. Entrance signs must follow some minimum general principles and be in a standard format. The size of the sign must take into account the expected speed of vehicles approaching the car park, and it is recommended that you follow Department for Transport guidance on this.” I put to MBL there are NO entrance signs what so ever as can be seen from the middle right photograph on page 23 in MBL evidence pack which shows the tee junction with no entrance signage.

BPA code 18.3 states “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand.”

The car park entrance is on a tee junction where traffic is coming from two different sides, entering and exiting the car park. The driver’s attention is therefore focused on the traffic, not to a parking sign immediately at a significant curvature in the road where you are least likely to look due to the position of the other moving vehicles around you.

Similarly there are multiple areas of the car park where there are no signs whatsoever, therefore its perfectly possible that a driver could park a car, leave the vehicle and enter one of the premises onsite (or even leave site) without having seen a sign, therefore no contract can be formed.

Also at the time of the alleged event, the car park was shrouded in darkness and considering the signs are positioned high up on surrounding structures walls, it would be easy to miss them as its not particularly well lit.

MBL have stated that the appellant’s vehicle was parked on a no parking zone. They mention on page 3 not to park in a way that would cause an obstruction to any road or other users and not to park in a non-designated area.
The photo evidence is confusing; it shows clearly in their evidence pack I was not causing an obstruction because I was parked at the side of the road with no parking markings on the tarmac to indicate a ‘no parking zone’. I was clearly not causing an obstruction because I was parked at the side of the road next to the pavement so other road users were not obstructed in any way. Furthermore the signage is confusing, do not park on the access road, it is accepted that parking on the access roads as you enter the boundary of the car parks would cause obstruction but the MBL evidence photos clearly show a road but I question MBL where the access road begins and ends which is totally unclear and signage is confusing to address such.

The Charge not a genuine pre-estimate of loss

The demand for a payment of £100 (£60 minimum at prompt payment ) is punitive, unreasonable, exceeds an appropriate amount, and has no relationship to any loss that could have been suffered by the Landowner. The car park is a free car park. There is, therefore, no loss flowing from this parking event because there can be no loss of potential income.

I put MBL to strict proof of the alleged loss including a detailed breakdown of how the amount of the “charge” was calculated. The Notice to Keeper letter refers to 'breach of terms of parking' so the charge must be a genuine pre-estimate of loss - and I contend this charge certainly is not based on any such calculation.

This Operator cannot demonstrate any initial quantifiable loss. The parking charge must be an estimate of likely losses flowing from the alleged breach in order to be potentially enforceable. Where there is an initial loss directly caused by the presence of a vehicle in breach of the conditions (e.g. loss of revenue from failure to pay a tariff) this loss will be obvious. Since this is a free car park, the loss in this case is zero.

Heads of cost such as normal operational costs and tax-deductible back office functions, debt collection, etc. cannot possibly flow as a direct consequence of this parking event as these would be incurred by the Operator whether or not the driver had used the car park.

The Operator would have been in the same position had the parking charge notice not been issued, and would have had many of the same business overheads even if no PCNs were issued. Therefore, the sum they are seeking is not representative of any genuine loss incurred by either the landowner or the operator, flowing from this alleged parking event.

Due to the above points, I respectfully request that my appeal is upheld and the charge is dismissed.

Kind regards,

dredd29

Then the POPLA assessers decision REJECTION:

Unsuccessful
Assessor Name

Assessor summary of operator case
The operator’s case is that the appellant’s vehicle parked at Mecca Bingo X where the operator issued a Parking Charge Notice (PCN) for not parking in a marked bay or designated parking area.
Assessor summary of your case
The appellant’s case is that he is appealing as the registered keeper of the vehicle. The appellant states that the operator has not complied with the conditions set out in Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. The appellant states that the operator has not demonstrated who the driver of the vehicle is. The appellant states that the operator has failed to provide any evidence demonstrating that it has the written authority of the landowner to manage parking at the site and to issue PCN’s. The appellant states that the signage at the site does not comply with the Section 18 British Parking Associations (BPA) Code of Practice. The appellant states that as the signage is not clear and prominent no contract was entered into by the driver. The appellant has provided a letter outlining his appeal in detail and photographic evidence of the site.
Assessor supporting rational for decision
The operator has provided photographic evidence of the appellant’s vehicle parked at the site at 09:59 on 29 November 2017. This evidence demonstrates that the vehicle was parked in a access road. The operator has provided photographic evidence of the signage in place at the site showing the terms and conditions. They state, “CONTRACT TO ENTER AND PARK. BY ENTERING, YOU AGREE TO ABIDE WITH THE FOLLOWING CONDITIONS” and “NO PARKING ON ACCESS ROAD AT ANY TIME”. They continue, “PARKING CHARGE £100” and “By failing to comply with any of these conditions you are contractually agreeing to pay the parking charge of £100”. POPLA is an evidence-based appeals service. All appeals are decided using the evidence and statements from the appellant and the parking operator, using the BPA Code of Practice as guidance for an expectation of minimum standards. POPLA’s main responsibility is to determine whether a PCN was issued in accordance with the terms and conditions. The appellant states that he is appealing as the registered keeper of the vehicle. The appellant states that the operator has not complied with the conditions set out in Schedule 4 of the Protection of Freedoms Act (PoFA) 2012. The appellant states that the operator has not demonstrated who the driver of the vehicle is. As the appellant has not named the driver of the vehicle, the operator is required to demonstrate that it has transferred liability to the keeper of the vehicle, by strictly complying with the conditions set out in Schedule 4 of PoFA 2012. I have reviewed the Notice to Keeper and I am satisfied that the operator has shown strict compliance with PoFA 2012 and as such, liability has been transferred to the keeper of the vehicle. The appellant states that the operator has failed to provide any evidence demonstrating that it has the written authority of the landowner to manage parking at the site and to issue PCN’s. Section 7.2 of the British Parking Association’s (BPA) Code of Practice states, “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. In addition, section 7.3 of the BPA’s Code of Practice sets out the conditions that the written authority must include. The operator has provided a signed redacted contract between the landowner and operator. Although this contract is redacted, I am satisfied that it demonstrates that the operator has the authority of the landowner to manage parking at the site. The appellant states that the signage at the site does not comply with the Section 18 British Parking Associations (BPA) Code of Practice. The appellant states that as the signage is not clear and prominent no contract was entered into by the driver. The appellant has provided a letter outlining his appeal in detail and photographic evidence of the site. Section, 18.2 of the BPA Code of Practice states “Entrance signs play an important part in establishing a parking contract and deterring trespassers. Therefore, as well as the signs you must have telling drivers about the terms and conditions for parking, you must also have a standard form of entrance sign at the entrance to the parking area. Entrance signs must tell drivers that the car park is managed and that there are terms and conditions they must be aware of”. Additionally, section 18.3 states, “Specific parking-terms signage tells drivers what your terms and conditions are, including your parking charges. You must place signs containing the specific parking terms throughout the site, so that drivers are given the chance to read them at the time of parking or leaving their vehicle. Keep a record of where all the signs are. Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. From the photographic evidence provided, I am satisfied that the signage at site meets the BPA Code of Practice and that the terms and conditions of the site are both “conspicuous and legible”. Therefore, it is reasonable to accept that the motorist had the opportunity to see the signage and agree to the sites terms and conditions before parking. In addition, the photographic evidence of the appellant’s vehicle shows that the vehicle was parked close to signage, demonstrating that the driver had a reasonable opportunity to review this before parking. When parking on private land, it is the responsibility of the motorist to ensure they adhere to the terms and conditions of the car park. By entering into the car park and remaining in this area, the motorist is agreeing to the terms and conditions in place and agreeing to pay the PCN if they do not comply with them. The terms and conditions of the site state that vehicles are not allowed to park on access roads, by parking on the access road the motorist has not complied with the terms and conditions in place. In conclusion, from the evidence provided I can only determine that the appellant has not complied with the terms and conditions by failing to park correctly within a marked bay. Therefore, I determine that the operator issued the PCN correctly. Accordingly, I must refuse the appeal.

nosferatu1001

Please use paragraphs!

Noone will read that wall of text.

dredd29

Hi
Sorry could have formatted better.

Please can the forum help with a defence and if able to point me in the right direction over a relevant template to submit assume as part of my defence form. Spoken to the court I have 28 days from 18/08/18 to submit but they have said submit defence ASAP in case MSL issue a CCJ or something didn’t really make sense ? Please help as I’ve lost bags of time having only arrived back from abroad on 28/08 hence lost two weeks on this as CC Claim form sat in my post box for two weeks.

Forum help would be very much appreciated. Thank you.

beamerguy

dredd29 wrote: »

Hi
Sorry could have formatted better.

Then please edit with paragraphs as many who could
help you will not read a wall of text