POPLA Stage (Appealing against SMART Parking)

SmartPCN

Dear Dedicated Members,

I have been referred here from another forum, my actual discussion link, I am unable to post any link as of the new user checks for spamming, I am mentioning my thread on "pepipoo" with the below title:

"Incorrect registration MARK "P", Smart Parking - EARL HAIG, HOUNSLOW"

I have got POPLA code issued by Smart parking.

I have gone through the newbie thread specifically post # 3 POPLA appeals - this is if you have not given the driver identity (confused).

I am finding it difficult to amalgamate and come up with an appeal document - As I might in submitting my various appeals to Smart online declared that I am the driver but logically there is no drop down or anything which I have done it but what I have done is kept writing to them as "I parked my car", "I bought the legitimate ticket" etc which might indicates that I am the driver of the vehicle.

My case is similar to the thread below only difference he appealed as a registered keeper.

moneysavingexpert thread 5743717 with title "PCN Appeal rejected by Smart"

Some relevant cases I have found are the below:

(Post number 16 - ANPR) - "ParkingEye County Court Defence- I have proof?"

(ANPR - Post number 6) - "Legal claim ANPR TICKET"

My main argument is - I have entered the VRM correctly but machine gives me a ticket only with "P" so its definitely not my fault instead it raises a lot of question on checking the minimum length for a valid VRM (not asking to send the VRM verification to DVLA database for instant check if available).

Please if You can guide me I would be really grateful - SchoolRunMum or C-M?

Kind regards

Quentin

Are you saying you wrongly admitted to being the driver? As in someone else parked?

(Or just cross now you cannot use any Pofa arguments)

Coupon-mad

Just submit the usual long POPLA appeal, including the bits about no keeper liability (even though you might have blown it), because Smart might just cancel anyway as they don't like very long POPLA appeals, it's not worth the man hours I guess.

Show us the one you intend to use, in a post (or across two posts) here. Thrwo the kitchen sink at them, they hate that!

Also, at the same time, look on Smart's website for the 'privacy' section about data concerns, and see if they have a specific contact for their Data Protection team/Officer, (DPO) for any data misuse concerns.

Send that person a RECTIFICATION NOTICE UNDER THE GDPR asking them to rectify the known 'inaccurate data' of the 'P' assumed by their own machine, and match it to the accurate data that they already have (the ANPR and DVLA data which proves the car was yours and that the payment made matched that car and no other).

Tell their DPO to make a note on their files to remedy and rectify the machine error (which was not the fault of the driver who would obviously not think their VRN was 'P') and thus to remove the inaccuracy, as required under the GDPR.

Then if Smart do not rectify or cancel, you can complain to the ICO if in the end you lose your POPLA appeal, the ICO online complaint (simpler than POPLA in some ways) will be the next line of attack based on a refusal to rectify KNOWN inaccurate data, to cause an unfair imbalance of a consumer's interests and rights.

SmartPCN

Great Coupon-Mad, thank you very much for your prompt response and God bless You, highly appreciated, I will start writing my appeal along with looking at the DPO from the ticket issuer website (SMART) so I can write using GDPR clause.

Many thanks once again, I will be soon posting my appeal draft here.

Kind regards,

SmartPCN

Dear Coupon-mad, I have found the below section (unable to post the link):
"personal-data-privacy-policy"

They have mentioned the below:

Your rights

Under Data Protection Legislation you have the following rights:

To be informed
Of access
To rectification
To erasure
To restrict processing
To data portability
To object

Please note that you have the right to request the above, but under data protection law we must; confirm who you are before providing information and; provide you with an explanation if we do not agree with your request. So if you do make the request we will tell you if the request has been granted or not.

Right of access
You have the right to submit a Subject Access Request and this can be done by emailing dpo@smartparking.co.uk or by calling 0845 2303081 or in writing to our Data Protection Office at the above address. We will need to confirm who you are obtain proof of your identity before providing you with information we may hold about you.

Shall I write to the email address given with the below, i will send them the original PCN with ANPR pictures on it along with my VRM, please do kindly advise if it requires amendments:

Dear Sir/Madam,

Subject: RECTIFICATION NOTICE UNDER THE GDPR

I am requesting a RECTIFICATION NOTICE UNDER THE GDPR in order to rectify the known 'inaccurate data' of the 'P' assumed by your machine, and kindly match it to the accurate data that which I am certain You already have (the ANPR and DVLA data which proves the car was yours and that the payment made matched that car and no other).

Kindly make a note on your files to remedy and rectify the machine error (which was not the fault of the driver who would obviously not think their VRN was 'P') and thus to remove the inaccuracy, as required under the GDPR.

Please kindly advise.

Coupon-mad

Shall I write to the email address given with the below

Yes, do that. But:

proves the car was yours

errr, MINE!

SmartPCN

Apologies for keep posting back, Do i have to send my Log book in order to prove that car is mine ? if that the case then I will write the below lines in addition (or shall I actually wait for them to come back which might delay the process),

I am registered keeper of the car VRM: XXXXXX, car pictures in actual PCN issued is mine and attached is my logbook for reference.

Many thanks in advance.

Coupon-mad

Do i have to send my Log book in order to prove that car is mine ?

I would, a logbook won't hurt.

SmartPCN

Hi All, below is my appeal draft, copied and pasted and changed accordingly :

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STARTS HERE ----======================

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I am writing to you to lodge a formal appeal against a parking charge notice sent to myself as registered keeper of the vehicle in question.

Summary
28/07/2018 – I went out with my family to a birthday party just besides this car park called “Paradise Banqueting Halls” – I as a registered keeper not driving the car at all but I initiated the appeal process as I was the one who went out and bought the ticket. Most of the time I bought the parking tickets within my Borough, in our borough we have 20 minutes free parking and even for that You have to get a ticket and for getting a ticket you have to enter the full VRM, I have done this for years and I can assure that there is no way I can make a mistake by entering just “P” as a VRM. This is an error by the machine, in order to understand this error from any end I would like to request the below:

(a) How many tickets with letter “P” has been issued pre/post at least for a month from the date of contravention i.e. 28/07/2018, I can guarantee this can be proved as a scam rather than wrong VRM entry which I can fully assure I have entered a full VRM with no mistake.

(b) We need to identify the logs in order to check what keys were pressed as I have entered a full VRM without making a mistake by following the instructions on the machine, I bought the valid ticket paid the valid amount so there is very little chance I am running away with the fact or I have something to hide.


(c) Ticket machine has some error – In my opinion ticket machine has a malfunction as how would machine failed the basic check which allows to check for minimum number plate length and easily allow to print a ticket. It does not make sense at all, this is a huge issue which needs to be looked into urgently as law abiding citizens are being ripped off.

(d) Smart parking should have a 4 hours stay valid ticket with “P” which can be reconciled with the ANPR data – it should not be the case even in the first place to issue the PCN, this is a pure ignorance and negligence of their work and this should not be treated as a normal behaviour this should come under surveillance as this is totally bad and should be reported.
(e) I would like to see full transparent list of all the Vehicles entered against the money they have paid on the day of contravention, this information should be made available to the public under the freedom of information act (VRMs can be hide as of GDPR), as I am sure that this single account of “P” will match with the VRM not entered properly as of machine error.
(f) Ticket was bought around 18:15 and was valid until 22:15 whereas driver left the birthday party around 22:05 and came to car park, it took time to find the car as the car park was completely in dark for reference see the video below which was uploaded on 19/05/2016 with the title "Illegally unlit EARL HAIG HOUNSLOW car park operated by Smart Parking Limited" and to my surprise it is still the same – dark and unlit. ANPR image provided is clearly showing the time driver have left the car park was around 22:10, to be very honest this is a clear example for obliging and understanding your responsibility means leaving within the time frame even 5 minutes earlier than the ticket purchased.

I am sorry but this looks like a case of arrogance, ignorance and negligence, it leads me to have sleepless nights which I am only working out to prove myself innocent, as a law abiding and tax paying citizen I have never done anything wrong and to me I have paid the requested amount by entering full VRM for ticket was issued followed by displaying on the dashboard as per the contract.
Driver and myself going through lot of disturbance and I keep waking up in the night as of nightmares in result of the contravention which never happened, I don’t wanted to even highlight this part, my job is affected, I have requested my manager to allow me some days off and still not getting out of depression.

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UNTIL HERE I HAVE WRITTEN WHAT I CAN THINK OF --- BELOW IS taken from an appeal template as a reference what I am not sure are the links it says certain places "(LINK AS IN THE TEMPLATE)" and I cannot find these links.

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below

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Reiterating the points above along with some more references I contend that I am not liable for this parking charge on the basis of the points mentioned above and clarifications below:

No keeper liability – no adequate notice of the parking charge. Also, the ‘parking charges that remained unpaid’ were not described. The operator is trying to hold me liable under the POFA Schedule 4 but there was no adequate notice of any £100 charge, there were no clear signs near the places the driver parked which was at the back of the car park in an unlit area and any other terms were too high to read or obscured.

NTK fails to ‘describe the parking charges that remained unpaid’ (tariff). The PCN fails to identify the facts that caused a charge to arise and fails to describe the unpaid parking charges that they allege were unpaid at the machine. 7(2) states: ’’The notice must - (b) inform the driver of the requirement to pay parking charges in respect of the specified period of parking and describe those charges, the circumstances in which the requirement arose…and the other facts that made those charges payable…’’

This NTK stated that ‘’either’’ there was not appropriate parking time purchased ‘’or’’ the vehicle remained longer than permitted (neither of which is a ‘fact’). In their rejection letter Smart Parking revealed too late that they contend that ‘insufficient time was paid for’ on the date in question. Not only is this not true but it is an alleged ‘fact’ that the NTK failed to state in the first place. If this operator should change their story yet again for POPLA and perhaps try to show that a ‘wrong VRN’ gave rise to the charge, POPLA please note that that would prove my point that this NTK has no ‘facts’ and also fails to describe those parking charges which they contend remain ‘unpaid’ by the driver as mentioned above.

Therefore, this is a charge that could only be potentially enforced against a known driver and there is no evidence of who that individual was.

2) The operator has not shown that the individual who it is pursuing is in fact 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, not by POPLA, nor the operator, nor even in court. 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 charge cannot be enforced against a keeper without a POFA-compliant NTK.
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.
The vital matter of full compliance with the POFA 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.''

No lawful right exists to pursue unpaid parking charges from a keeper, where an operator is NOT attempting to transfer the liability for the charge using the POFA. This exact finding was made in a very similar case with the same style NTK in 6061796103 v 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) Smart Parking has no standing or authority to form contracts with drivers in this particular car park, nor to pursue charges.

I do not believe that this operator has any proprietary interest in the land such that it has no standing to make contracts with drivers or to pursue charges for breach in its own name. I contend that they merely hold an agreement to maintain signs and to issue 'tickets' as a deterrent to car park users. I put the operator to strict proof otherwise because it cannot be assumed that any agent on site has any more than a bare licence.

I require an underacted, contemporaneous copy of the landowner contract (including the User Manual which forms a vital part of that contract). This is required so that I may see the definition of services provided by each party to the agreement, as well as any exclusions (e.g. exempt vehicles, users, days or times) as well as defined grace periods; the land boundary and the areas or specific bays enforced; the various contraventions and confirmation of the agreed ‘charge’ which may or may not be £100.

I do not believe that the contract allows Smart Parking to charge paying visitors £100 for a system or keypad error. It is submitted that to charge for this event is highly unlikely to be a feature of the agreement with the landowner. That is why a generic, bland witness statement with a lack of definition of contraventions will NOT counter this argument.

Regarding Section 7.3 of the BPA Code of Practice, I require evidence of full compliance:
“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) On this day there were issues with the machine.

The registered keeper paid for the parking using the machine keypad and followed instruction given on the screen, which were hard to read in the first place. Having placed the money in the machine to cover 4 hour’s stay the machine printed out a ticket. I as a registered keeper did what the instruction required and made the payment which was required. If there was an issue with the registration then the machine should not have printed the ticket.

If a keypad fault caused the system not to record the VRM correctly, then that is a matter within Smart Parkings control, not the driver’s fault, as was found in Claim No C0FC15W4, ParkingEye v Ms G. before Judge Middleton at Bodmin County Court on 26/10/16:
(LINK AS IN THE TEMPLATE)

In this case under appeal now, in all probability, there was a machine failure as in the above similar court case.

5) Breach of the BPA Code of Practice on ANPR.

It is submitted that this charge was not properly given because it breaches the BPA Code of Practice regarding ANPR which requires checks to be made to ensure that a charge is ‘appropriate’ before issuing a PCN.
The payment made for 4 hours stay would in fact be very easy to identify if this operator had carried out the necessary checks required in the BPA CoP, so I suggest these checks were not made and that the operator has contravened the requirements of professional diligence; a duty of consumer-facing service providers.
I put this operator to strict proof that these checks were made (showing full records from that day including the VRM list of payments around the time in question) and to explain why a charge was issued when they would indisputably have identified the matching 4-hours payment. The operator would have been in no doubt that the car parking was paid for, had they made the required checks.

And the situation is fully within this operator’s control. As cameras are used to record number plates entering and leaving then they should be connected to the ticket machines. As a number-plate begins to be typed, a truly ‘connected’ system would find the ANPR image and simply require the driver to confirm that this is their vehicle, and the system would show the time of arrival (all details known to the system already).

To charge under these circumstances with a faulty machine, was not ‘appropriate’ or fair and contravenes the ANPR requirements of the BPA CoP.

Further, the signs fail to inform a driver what the ANPR data will be used for. When paying in good faith having typed in the VRM, the driver had no idea that secret camera data would later be used to bind him/her to a charge he/she knew nothing about and did not agree to. Failure to tell a driver how the data will be used is an ICO breach AND a ‘misleading omission’ of a material fact – prohibited by consumer law, bringing me to my next point.


6). The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs. It is not saved by ParkingEye v Beavis.

As the ticket was purchased for the duration of the stay. It was the failure of the machine to not identify the car for which it was intended for neither is it the fault of the data entry operator that Smart-Parking did not check their records before issuing a PCN.

No evidence has been produced either way by this operator as to the cause of the issue nor any consistently-stated facts that made £100 charge payable.

This situation is an 'ordinary' contract involving no overstay and no breach of the legitimate interests of the landowner. This was a simple consumer/trader transaction with a ticket for parking being purchased in good faith and produced by a machine and can be very easily distinguished from the case of ParkingEye Ltd v Beavis.

Indeed, the Judges' findings at the Court of Appeal stage - which were not disputed nor overturned at the Supreme Court, so the findings stand as part of that binding case law - fully support my view that the case of 'Kemble v Farren' remains the binding authority in support of this position. At 47 in the Court of Appeal Judgment, it was held:

''When the court is considering an ordinary financial or commercial contract, then it is understandable that the law, which lays down its own rules as to the compensation due from a contract breaker to the innocent party, should prohibit terms which require the payment of compensation going far beyond that which the law allows in the absence of any contract provision governing this outcome. The classic and simple case is that referred to by Tindal CJ in Kemble v Farren (1829) 6 Bing. 141 at 148: “But that a very large sum should become immediately payable, in consequence of the non-payment of a very small sum, and that the former should not be considered a penalty, appears to be a contradiction in terms, the case being precisely that in which courts of equity have always relieved, and against which courts of law have, in modern times, endeavoured to relieve, by directing juries to assess the real damages sustained by the breach of the agreement.” ‘’

And at the Supreme Court it was held at 14. ''…where a contract contains an obligation on one party to perform an act, and also provides that, if he does not perform it, he will pay the other party a specified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty… ''


At 22, the Supreme Court explored Lord Dunedin’s speech in Dunlop and separated complex cases (Beavis) from ordinary/standard contracts with a transaction and tariff paid at a machine: ''Lord Dunedin's...four tests are a useful tool for deciding whether these expressions can properly be applied to simple damages clauses in standard contracts. But they are not easily applied to more complex cases.''

This is NOT a 'more complex' case by any stretch of the imagination. At 32, it was held that a trader, in this case a parking company: ''...can have no proper interest in simply punishing the defaulter. His interest is in performance or in some appropriate alternative to performance. In the case of a straightforward damages clause, that interest will rarely extend beyond compensation for the breach, and we therefore expect that Lord Dunedin’s four tests would usually be perfectly adequate to determine its validity.''

Clearly a charge ‘out of all proportion’ to the tariff - which was paid in any case - is an unfair penalty to the mind of any reasonable man. A huge charge arising under the excuse of an unexplained event such as a keypad or system error is unjustified and unfair, if the remedy is out of all proportion with the 'breach' and the (completely different) Beavis case does NOT apply to this argument.

The Consumer Rights Act 2015 supports my position that the failure in performance of the keypad and/or failure by the operator to diligently carry out the necessary checks to ensure charges are not issued inappropriately, is unfair and unenforceable:
(LINK AS IN THE TEMPLATE)
- Schedule 2: 'Consumer contract terms which may be regarded as unfair':
’’A term which has the object or effect of inappropriately excluding or limiting the legal rights of the consumer in relation to the trader or another party in the event of total or partial non-performance or inadequate performance by the trader of any of the contractual obligations…’’
''A term which has the object or effect of requiring a consumer who fails to fulfil his obligations under the contract to pay a disproportionately high sum in compensation.''

This charge is clearly punitive and is not saved from breaching the 'penalty rule' (i.e. Lord Dunedin's four tests for a penalty) by the Beavis case, which does NOT supersede other defences. It turned on completely different facts and related only to that car park with its own unique complexity of commercial justification. This case is not comparable.
The Consumer Protection from Unfair Trading Regulations 2008 also supports my position that this commercial practice of charging for their own system failure is unfair:

(LINK AS IN THE TEMPLATE)
’’Prohibition of unfair commercial practices’’: 3.—
(1) Unfair commercial practices are prohibited.
(2) Paragraphs (3) and (4) set out the circumstances when a commercial practice is unfair.
(3) A commercial practice is unfair if—
(a) it contravenes the requirements of professional diligence; and
(b) it materially distorts or is likely to materially distort the economic behaviour of the average consumer...
(4) A commercial practice is unfair if—
(a) it is a misleading action under the provisions of regulation 5;
(b) it is a misleading omission under the provisions of regulation 6; ‘’

I have shown that Smart Parking have failed all of the above tests (my bold) which makes a charge under these circumstances prohibited and unenforceable. The Beavis case established that the penalty rule was certainly deemed ‘engaged’ in parking charge cases. Even
If POPLA cannot consider consumer law (whyever not?) then the evidence shows that this charge is the very essence of ‘unconscionable’ which was the Beavis case definition of an unrecoverable penalty.


7) The signs are not prominent, clear or legible from all parking spaces
The signs and the machine tariff board (and the small screen itself on the machine) were contradictory and crowded with different terms, so this is not an example of ‘plain intelligible language’, contrary to the Consumer Rights Act 2015:
(LINK AS IN THE TEMPLATE)

68 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.
It is submitted that the driver did not have a fair opportunity to read any terms involving this huge charge, which is out of all proportion and not saved by the dissimilar 'ParkingEye Ltd v Beavis' case where the terms were concise and far clearer with no tariff lists which is the primary prominent information on the board. In the Beavis case, the signs were unusually clear. The Supreme Court were keen to point out within hours of their decision that it related to that car park and those signs and facts only so it certainly does not supersede any other appeal/defence about a different car park:-

(LINK AS IN THE TEMPLATE)

The terms appear to be displayed inadequately at the machine, where only the tariffs are in comparatively large font. I put the operator to strict proof as to the size of the wording of the terms, which seem to be no larger than .40 font size going by this guide:-

(LINK AS IN THE TEMPLATE)

As evidence that this is inadequate notice, Letter Height Visibility is discussed here:-
(LINK AS IN THE TEMPLATE)

''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. However, if you…want drivers on a nearby highway to be able to see them, design your letters at 3” or even larger.''

...and the same chart is reproduced here:-
(LINK AS IN THE TEMPLATE)]

''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.''

Under Lord Denning's Red Hand Rule, the parking terms should have been simpler and effectively: 'in red letters with a red hand pointing to it' - i.e. VERY clear, concise and prominent in large lettering, as was found to be the case in the car park in 'Beavis'.

I put this operator to strict proof of where the car was parked and how their signs appeared on that date, at that time, from the angle of the driver's perspective when parked. 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.

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ENDS HERE

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Coupon-mad

I think the start is a little emotive - remember you are talking to POPLA, not Smart - and that you need to make it crystal clear ''I was a passenger of the car but I was not the driver''. And ''There can be no keeper liability under the POFA 2012''.

And you need a section pointing out that Smart Parking do not use a POFA PCN, due to the omission of the 9(2)f keeper liability mandatory warning, among other easy to spot wording omissions (and the timeline if the PCN was served after day 15).

SmartPCN

Thank Coupon-mad, appreciated Your help and support, I am too much disturbed and can't focus on my work at all so that reflection went in my writing, do admit it.

Can I request You, please kindly point me out what I need to completely remove which looks too emotive?

I am sorry for keep asking questions.