Indigo ITAL appeal

Itsascam

I've not posted for a while as I thought I would wait until I had time to prepare the appeal.

I'll cut and paste the full draft appeal which I have built up through cut and pasting from various POPLA appeals on this forum - in a following post -but it is not the most enticing thing to read in full so understand if no-one wants to I intend to submit the appeal to ITAL tomorrow/monday.

First of all sorry for the "old" I meant this in terms of experience not in terms of wrinkliness - I am no spring chicken myself.
Secondly, I do understand that it is mainly a case of ensuring the 6 months time out, but I also read someone say to ensure you don't incriminate yourself so I'm concerned I may inadvertantly do that.

In this case the car was parked by the driver in a not marked place but it was not causing an obstruction and there was no sign close to say this was not allowed. After receiving the PCN the driver checked other similar areas and there were signs there, but not in this particular place. A ticket had been purchased using the automated phone system prior to entering the car park, but there were no marked spaces available.

I want to include this in the appeal but want to check is admitting that the driver parked in a non-marked space incriminating?

In addition the first letter received identified me as the keeper, whereas the appeal rejection mentions me as the owner. I would like to appeal on similar grounds to the original appeal that no admission of ownership of the vehicle had been given. Is this worth it? (I am slightly concerned that for the initial online appeal there was a box with "owner" as the label that had to be filled to put in the appeal and am concerned this may be taken as admission of ownership - which it wasn't, it had to be filled in to lodge the appeal online)

I will also include lots of standard appeal points I have found e,g,:
-No evidence of land owner authority
-Inadequate signage
-Operarator not showing that the individual they are pursuing is liable for the charge
-Indigo has no standing or authority to form contracts with drivers in this particular car park
-The charge is a penalty, breaches the Consumer Rights Act 2015 and is prohibited/unfair under the CPUTRs.

And once again, many thanks for the help you guys give to everyone in a similar situation to me.

Itsascam

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 - such as any 'genuine customer' or 'genuine resident' exemptions or any site occupier's 'right of veto' charge cancellation rights, and of course all enforcement dates/times/days, and the boundary of the site - is key evidence to define what this operator is authorised to do, and when/where.

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 authorised on the material date, 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 but crucial information such as the site boundary and any bays where enforcement applies/does not apply. Not forgetting evidence of the only restrictions which the landowner has authorised can give rise to a charge, as well as the date that the parking contract began, and when it runs to, or whether it runs in perpetuity, and of course, who the signatories are: name/job title/employer company, and whether they are authorised by the landowner to sign a binding legal 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

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

I note that within the Protection of Freedoms Act (POFA) 2012 it discusses the clarity that needs to be provided to make a motorist aware of the parking charge. Specifically, it requires that the driver is given 'adequate notice' of the charge. POFA 2012 defines 'adequate notice' as follows:

''(3) For the purposes of sub-paragraph (2) 'adequate notice' means notice given by: (a) the display of one or more notices in accordance with any applicable requirements prescribed in regulations under paragraph 12 for, or for purposes including, the purposes of sub-paragraph (2); or (b) where no such requirements apply, the display of one or more notices which: (i) specify the sum as the charge for unauthorised parking; and (ii) are adequate to bring the charge to the notice of drivers who park vehicles on the relevant land''.

Even in circumstances where POFA 2012 does not apply, I believe this to be a reasonable standard to use when making my own assessment, as appellant, of the signage in place at the location. Having considered the signage in place at this particular site against the requirements of Section 18 of the BPA Code of Practice and POFA 2012, I am of the view that the signage at the site - given the minuscule font size of the £sum, which is illegible in most photographs and does not appear at all at the entrance - is NOT sufficient to bring the parking charge (i.e. the sum itself) to the attention of the motorist.

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

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

<Link had to be removed as newbie>

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

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

<link had to be removed as newbie>

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 had to be removed as newbie>

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

<link had to be removed as newbie>

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

...and the same chart is reproduced here:

<link had to be removed as newbie>

''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 had to be removed as newbie>

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.


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 ITAL, 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.
The burden of proof rests with the Operator, because they cannot 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 – they will fail to show I can be liable because the driver was not me.
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 admission of ownership of the vehicle
In the original appeal to Indigo I admitted to being the keeper of the vehicle in question but there was no admission of who was the owner nor who was the driver.
In the appeal rejection, it states “Although It is the drivers responsibility to ensure they comply with the site terms and conditions, the liability of this PN lies with you as the owner of the vehicle.”
There has been no admission of ownership of the vehicle and I dispute that even if I were the owner the liability cannot be shifted to the owner in this manner.

Indigo 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 unredacted, 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 £137
I do not believe that the contract allows Indigo to charge paying visitors £137 for in an area what was not causing any sort of obstruction and there was no sign to indicate parking was not allowed.
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.''

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.
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.
But that a very large sum should become immediately payable, in consequence of parking in a place that was not causing an obstruction and there were no signs to indicate this was not allowed, after a parking ticket had been purchased.
At the Supreme Court it was held at:
''...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 aspecified sum of money, the obligation to pay the specified sum is a secondary obligation which is capable of being a penalty''
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.”

The_Deep

It is the will of Parliament that these scammers be put out of business.

Hopefully that will take place in the near future. The Bill has passed through the HOC without hitch, and goes to the Lords soon. In the meantime involve your MP, the poor dears are buckling under the weight of complaints about these scammers.

This is an entirely unregulated industry which is scamming the public with inflated claims for minor breaches of alleged contracts for alleged parking offences, aided and abetted by a handful of low-rent solicitors. Is has been suggested by an MP that some of these companies may have connections to organised crime.

Parking Eye, CPM, Smart, (especially Smart}, and others have already been named and shamed in the House of Commons as have Gladstones Solicitors, and BW Legal, (these two law firms take hundreds of these cases to court each week), hospital car parks and residential complex tickets have been especially mentioned. They lose most of them, and have been reported to the regulatory authority by an M.P. for unprofessional conduct

The problem has become so widespread that MPs have agreed to enact a Bill to regulate these scammers.

Sir Greg Knight's Private Members Bill to curb the excesses, and perhaps close down, some of these companies passed its Third Reading in late November, and, with a fair wind, will become Law next year.

All three readings are available to watch on the internet, (some 6-7 hours), and published in Hansard. MPs have an extremely low opinion of the industry. Many are complaining that they are becoming overwhelmed by complaints from members of the public. Add to their burden, complain in the most robust terms about the scammers.

Umkomaas

I want to include this in the appeal but want to check is admitting that the driver parked in a non-marked space incriminating?

If the signage tells you to only park in marked spaces, then this cuts your throat.

A bit like saying 'I know the signs say the speed limit is 30mph M'Lud, but even though I was doing 90mph, I didn't cause any accident - or kill anyone!'

I haven't read through the detail of your appeal points (too much brain-fry over the years!), but notice you have not included a 'No Keeper Liability', and if you're appealing as the keeper (why anything other than keeper?), as this is 'not relevant land', how can ITAL possibly find against you? PoFA provides you with full legal backing.

This should be your opening appeal point, followed next with 'Operator has not shown that the individual who it is pursuing is in fact liable for the charge'.

But you have to be very careful as you seem to have blindly copied and pasted this stuff then just stuck it all together - here's an example:

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,

You're not appealing to POPLA, you're appealing to ITAL. But please don't go doing a simple 'Find&Replace' exercise, changing POPLA to ITAL, as there are certain quotes that should use the POPLA reference.

It really is very important, not only for you, but for the wider populace who will follow you as one of the ITAL pioneers, that you get this absolutely spot on.

twhitehousescat

what is the time limit (days) to do the ital appeal , is it 28, or less

and have you asked ital if the result of appeal is binding on you , and /or indigo

twhitehousescat

ih dear , appeal form

1:I am the vehicle owner
2:I am appealing on behalf of the owner

then goes on to ask details inc DOB , phone no etc , ans if you are appealing on behalf of , then asks you to enter owners full name DOB and sig

https://www.asparking.co.uk/NewAppeal/ChooseMethod/IN

Please complete the following appeal form and ensure all details entered match those shown on the
Penalty Notice and your first response from the Parking Operator.
Post your completed appeals to: Appeal Service (Parking), PO Box 267, Petersfield, GU32 9FH. Send
your appeal documents to AS within good time and acquire proof of postage where possible. Your
appeal may only be considered if received by AS within the specified time given on your first response –
AS will not consider or process late appeals. If your verification code has expired please contact the
Parking Operator.




sorry , not playing ,,,,,,,,,,,,,,,,,,,,,,,,,,,, not filling there databases for emm

Coupon-mad

i'd just cross out 'owner' and change to 'keeper' to waste their time.

We need to play this game, to time these out to 6 months.

Itsascam

Many thanks for all the advice. I certainly have used cut and paste a lot - I thought that was the general point but appreciate need to change some of those POPLAs - I did change some but clearly not all.

I think it was 28 days, I do know the ITAL deadline is Jan 15th.

Itsascam

And yes will change owner to keeper.

Coupon-mad

Expect to lose but as long as nothing says you are committing yourself to an ADR where the decision is legally binding on you, it's fine.

Check the small print as you are one of the first to try and none of us have done.