LBC from BWLegal for Britannia PCN - part 1 of 2

FedUpofBWLegal

Hi all,

I'm in possession of 2 LBCs from BWLegal after receiving two separate parking 'fines' for two consecutive days in June. The Driver of the vehicle had just started her new job and had genuinely missed a sign at the entrance of the 4-storey car park in the middle of a retail park thinking it would be free. She missed the sign because just before the entrance (and exit) of the car park, a pedestrian path crosses the entry path so it's a rather dangerous place to be looking anywhere other than nearby for crossing pedestrians. There are also few signs on the floor where she parked (1 small one to be precise).

The driver still parks in this car park on occasion and now pays regularly as she obviously now knows it's a paid for car park!

I have been advised to post a separate thread for each LBC, so will start with the first one:

I appealed to POPLA on the following grounds, with the main one being insufficient signage:

- NtK was never served
- failure to prove keeper liability
- lack of standing or authority
- inadequate signage
- ANPR unreliable

Following Britannia's lodging of documents in the portal (including a redacted witness statement on Britannia letterhead supposedly proving standing or authority!), I also added pictures which show very inadequate signage (small letters, just a small sign on the first floor) and I also added pictures of the dangerous entry and exit where the main entrance sign is affixed that the assessor refers to as being satisfactory. In my rebuttal, I re-iterated my case that the pictures show there is inadequate signage in general, and I particularly objected to the proof of authority supplied by Britannia which was a heavily redacted, scrappy piece of paper called a 'Witness Statement' on Britannia headed paper.

As you will see below, these points were ignored (as in, not even mentioned in the decision). Despite my rebuttal, the assessor seems to lay the burden of proof with me when it comes to ANPR and even suggests that I should prove Britannia do not have standing or authority, which is interesting I guess for future reference.

I have sent a SAR to Britannia now I have the LBC, and an email to BW Legal to put the case on hold and to stop harassing me (like with everyone else, they are calling, texting and emailing me at ALL hours of the day). Other than that, I am just sitting tight until I receive the actual court claim. The letter has given me til the end of Jan to respond. My LBC was not compliant (did not follow all practice direction points) but I have not yet responded to that - it can be part of my defence once I come to write it? I am not on MCOL yet but I will do this as soon as I have the Court Claim.

Advice on my defence would be helpful although to my newbie eyes it looks like the only one I can win on is the poor signage (and that is my genuine defence!) I don't see how the driver would have been able to read all the information on the signs that Britannia submitted PLUS their photos were all close-ups whereas mine showed that the signs they have up could in no reasonable way have been legible from all angles of the carpark.

In addition, BWLegal have done the usual of adding £60 to the 'fine', which I also intend to reference.

Question: Should I ask to have these PCNs dealt with together as they are identical apart from different reference numbers, and having a different POPLA assessor? In my SAR, I have obviously asked Britannia to let me know if they have any other PCNs they intend to send to me but apart from that I am not sure who I should make this request to.

Unsuccessful decision below:

POPLA assessment and decision

Decision
Unsuccessful

Assessor Name
J* M*
Assessor summary of operator case
The operator issued a Parking Charge Notice (PCN) to the motorist due to failure to make a valid payment.

Assessor summary of your case

The appellant states that a complaint Notice to Keeper (NTK) was never served, not keeper liability can apply. The appellant explains the operator has not shown the individual whom they are pursing is in fact the driver who may be potentially liable for the PCN. The appellant says the burden of proof rests with the operator to show they have not complied with the terms and conditions, and show they are personally liable for the PCN. The appellant says the operator cannot do this. The appellant questions the operator’s authority to operator on the land. The appellant says the signs within the car park are not clear, legible or prominent from all parking spaces. The appellant says there is insufficient notice to the amount of the PCN.

The appellant says the driver did not have a fair opportunity to read the terms regarding the PCN amount. The appellant says the amount is out of proportion, and not saved by the ParkingEye v Beavis case. The appellant says they are asking the operator to provide proof of where their vehicle was parked. The appellant says the cameras used by the operator are unreliable and inaccurate. The appellant says the operator’s records do no show a parking time, just photographs of a vehicle entering and exiting the car park. The appellant says this does not discount the possibility of a double dip visit. The appellant says the operator must have signage at the site that states the information within 21.1 of the British Parking Association (BPA) Code of Practice. The appellant says the operator has failed to inform drivers about cameras and what the data will be used for. The appellant says they have not seen evidence of how the operator complied with other requirements in that section. The appellant says they put the operator to strict proof to the reliability of the camera compliance. The appellant says they require the operator provides records of date and times when the cameras at the site were maintained. The appellant has also questioned the synchronised time stamp of the camera with the time stamps of the photographs. In support of their appeal, the appellant has provided several photographs of the site.

Assessor supporting rational for decision

The signage at the site states “CHARGES APPLY MONDAY TO SUNDAY – 24 HOURS A DAY. £100 Parking Charge Notice may be issued to vehicles which: fail to purchase a valid ticket or permit”. The operator uses cameras to capture the registration number of cars entering and exiting the car park. I have checked the photographs, and I can see from the timestamp the vehicle was at the car park for nine hours two minutes. The operator has provided a list of vehicles that are allowed to be on the site because they have made a payment, the vehicle registration is not on the list.

The operator issued a PCN to the motorist due to failure to make a valid payment. As the appellant has made several grounds of appeal, I will address each in turn. In this case, it is not clear who the driver of the vehicle was. Therefore, I must consider the provisions of the Protection of Freedoms Act (PoFA) 2012 as the operator has issued the PCN to the keeper of the vehicle. The operator has provided a copy of the notice to keeper sent to the appellant. I have reviewed the notice to keeper against the relevant sections of PoFA 2012 and I am satisfied that it is compliant, and that the operator has successfully transferred liability to the keeper of the vehicle. The operator does not need to provide evidence of who was driving the vehicle; it is the registered keeper’s responsibility to inform of the full name and UK Serviceable address within timescales noted on the PCN. Within Section 7 of the BPA Code of Practice, it requires parking operators to have the written authority from the landowner to operate on the land. As such, I must consider whether the Operator has met the requirements of this section of the BPA Code of Practice. In response to this ground of appeal, the operator has provided witness statement signed on behalf of the landowner, confirming that the operator has the authority to pursue charges on the land. I note the appellant’s comments; however, they have failed to provide any evidence to suggest the operator does not have authority from the landowner to manager parking on the land in question.

In relation to signage, Section 18.3 of the BPA Code of Practice states: “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.” I note the photographs provided by the appellant, however, I do have to base my decision on all the photographic evidence provided. The operator and appellant have provided photographic evidence of the signage at the site. Upon review, I am satisfied that the signage is sufficient to bring the site’s terms and conditions and the amount of parking charge to the attention of motorists and I consider that the motorist was presented with a reasonable opportunity to review them before deciding whether to park their vehicle. The driver of the vehicle does not need to have read the terms and conditions of the contract to accept it. There is only the requirement that the driver is afforded the opportunity to read and understand the terms and conditions of the contract before accepting it. It is the driver’s responsibility to seek out the terms and conditions, and ensure they understand them, before agreeing to the contract and parking.

In regards to the amount of the PCN, I am satisfied ParkingEye V Beavis applies. The legality of parking charges has been the subject of a high profile court case, ParkingEye-v-Beavis. Cambridge County Court heard the case initially, handing down a decision in May 2014 that a parking charge of £85 was allowable. It held that the parking charge had the characteristics of a penalty, in the sense in which that expression is conventionally used, but one that was commercially justifiable because it was neither improper in its purpose nor manifestly excessive in its amount. Mr Beavis took the case to the Court of Appeal, which refused the appeal in April 2015, stating that the charge was neither extravagant nor unconscionable. Mr Beavis further appealed to the Supreme Court, which on 4 November 2015, concluded: “…the £85 charge is not a penalty. Both ParkingEye and the landowners had a legitimate interest in charging overstaying motorists, which extended beyond the recovery of any loss. The interest of the landowners was the provision and efficient management of customer parking for the retail outlets. The interest of ParkingEye was in income from the charge, which met the running costs of a legitimate scheme plus a profit margin. Further, the charge was neither extravagant nor unconscionable, having regard to practice around the United Kingdom, and taking into account the use of this particular car park and the clear wording of the notices.”

As such, I must consider whether the signage at this site is sufficient. When doing so, I must first consider the minimum standards set out in the BPA Code of Practice. Section 18.1 states: “You must use signs to make it easy for them to find out what your terms and conditions are”. Section 18.3 of the BPA Code of Practice continues: “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…Signs must be conspicuous and legible, and written in intelligible language, so that they are easy to see, read and understand”. In addition to this, I note that within 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 independent assessment 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 is sufficient to bring the parking charge to the attention of the motorist. Therefore, having considered the decision of the Supreme Court, I conclude that the parking charge in this instance is allowable. Although the charge may not be a genuine pre-estimate of loss; the signage at the location is clear, the motorist did not keep to the terms and conditions set out on the signage, and the charge is neither extravagant nor unconscionable. While the charge in this instance was £100; this is in the region of the £85 charge decided on by the Supreme Court. In a camera controlled site such as this one, there is no requirement to show the vehicle parked, only the entry and exit time. As the vehicle was at the site for nine hours two minutes, I am satisfied it was parked during this time.

In terms of the technology of the cameras themselves, unless POPLA is presented with sufficient evidence to prove otherwise, we work on the basis that the technology was working at the time of the alleged improper parking. As I accept there is the possibility for inaccuracies, I am happy to accept any evidence that suggests the appellant’s vehicle was elsewhere for this duration of time. However, as the appellant has not provided evidence to demonstrate otherwise, I will work on the basis that the technology is accurate. Furthermore, as the appellant has not stated their vehicle made more than one trip to the car park on the day, I will discount this ground of appeal.

Section 21.1 of the BPA Code of Practice states: “You may use ANPR camera technology to manage, control and enforce parking in private car parks, as long as you do this in a reasonable, consistent and transparent manner. Your signs at the car park must tell drivers that you are using this technology and what you will use the data captured by ANPR cameras for.” The signage displayed within the car park does feature a camera logo and state “This ANPR monitored…Car parking monitored by ANPR systems”. I would therefore be satisfied the operator has made it clear that camera technology is in place to determine the duration of stay of vehicles.

I note the further ground of appeal made by the appellant in regards to the reliability of cameras at the site, however, as mentioned above as they have not provided any evidence at all to question the cameras used at the site by the operator, i will work on the basis the cameras were working fine on the day. It is the duty of the motorist to ensure that when they have entered a car park that they have understood the terms and conditions before deciding to park. On this occasion by remaining parked at the site the appellant accepted the terms and conditions. As they did not purchase any parking time, they did not adhere to the terms and conditions. As such, I conclude that the operator issued the PCN correctly.

Redx

read post #2 of the NEWBIES sticky thread for examples of defences you can adapt, starting with the concise defence by BARGEPOLE, also by looking at all his posts over the last 12 to 18 months or so as well as those linked in that thread

the defence addresses the POC (unknown at this point), plus the legal arguments as to why you the keeper are not liable. plus signage , no landowner authority etc , plus also establishes the arguments that are agreed, like if it is your vehicle, you were not the driver etc

if you were to get more than one MCOL, you would be asking the court to combine them into one claim, so yes advise B W LEGAL to do the same

Umkomaas

The operator does not need to provide evidence of who was driving the vehicle; it is the registered keeper’s responsibility to inform of the full name and UK Serviceable address within timescales noted on the PCN.

That is wrong. You could go back to POPLA and ask them to explain precisely where in PoFA legislation that comes from, given that they have made it one of their main reasons for finding against you.

FedUpofBWLegal

UPDATE (also on Part 2 of 2 post)

@umkomaas: I have emailed POPLA to ask exactly what you say. I'll update when I get a response!

Hi Coupon-mad, unfortunately I had already emailed BWLegal the below, which did not contain the POPLA reference or the signage reference. Should I send another one? I kept it simple (maybe too simple:)

Dear Sir, Madam,

I am writing to inform you that I have sent your client, Britannia, a SAR today. I therefore require a restriction of data processing and both cases, xxxxx and xxxxx, should be put on hold.

My address is:
xxxx

Any future correspondence with me must be done through the post - please stop with your campaign of harassment about a non existent account, debt or statement via text messages, telephone calls and emails which are arriving almost daily both during working hours and evening hours. I will also be complaining about your conduct to my MP, as well as the SRA and the ICO.

Sincerely,

xxxxx

In the meantime, I haven't heard back from BWLegal and I have blocked their number, but they are still texting me.

Britannia have also responded to my SAR just under a week ago, the content of which is unsurprising I guess:

Dear Sir/Madam,

We have received your Subject Access Request, under ICO guidelines we have one calendar month to respond.

Please be aware we will send a copy of all personal data we hold only. If you have made a request for any additional information which does not qualify as personal data, please see below.

YOU’RE [SIC!] REQUEST FOR ADDITIONAL INFORMATION

Landowner agreement - You are not entitled to business sensitive information, it will only be supplied at court, as evidence and not before.

Contract with the driver - The contract is on the signage in the car park. A copy of the signage will be provided as evidence at court.

Machine reports - You are not entitled to transactions which do not relate to you, you will be provided with your transaction only. We are under no obligation to provide you with anything further.

Picture packs - A copy of the signage will be provided as evidence at court.

Your SAR request is free, however please be aware we are able to charge for additional copies and any requests for information we consider to be manifestly unfounded or excessive. ICO guidelines advise we are able to charge a reasonable administration fee, which is £10.

Please send a cheque payable to Britannia Parking to the following address: Data Protection Officer, County Gates House, 7th Floor, 300 Poole Road, Poole, BH12 1AZ.

Include a list of the additional information you require and the PCN number/s. Once the cheque has cleared we will action your request. We will only send additional information which is not business sensitive.

Please refer to the ICO website for further information: LINK

If you do not wish to pay £10, we are under no obligation to provide you with the information, your only options is to wait until this matter progresses to court, when it will be adduced as evidence.

Once you are in receipt of your SAR, all additional correspondence regarding the request for additional information will not be responded to, unless payment of £10 is received.

---

clearly I won't be sending any cheques! Anyway, I thought I would update here, nothing else to do I guess (except maybe write another note to BWLegal to complain that they are still harassing me and to add in the reference you quote Coupon-Mad) until the actual claim arrives.

I've pasted this reply in my other post too for posterity.

beamerguy

FedUpofBWLegal

You don't have to put with rubbish from either BWLegal or Britannia.

If BWLegal are harassing you then read this
The Administration of Justice Act <<< it matters to you

https://forums.moneysavingexpert.com/discussion/comment/75234858#Comment_75234858

Then read all about BWLegal
https://forums.moneysavingexpert.com/discussion/comment/72775365#Comment_72775365

You now do two things
1: Report BWLegal to the SRA
https://www.sra.org.uk/consumers/problems.page

2: Report Britannia to the ICO

Are BWLegal trying to add on a fake £60
In addition to the 'parking charge', the Claimant's legal representatives, BWLegal, have artificially inflated the value of the Claim by adding costs of £60 which has not actually been incurred by the Claimant, and which are artificially invented figures in an attempt to circumvent the Small Claims costs rules using double recovery. >>>> thanks to bargepole

Coupon-mad

I will also be complaining about your conduct to my MP, as well as the SRA and the ICO.

...and report them to the FSA about breach of debt collection rules, too.

I noticed on a BW Legal letter yesterday, that they are registered with the FCA so we should be telling people who get this bombardment of texts, phone calls and emails as well as misleading letters, to complain to the FCA as well.

beamerguy

Coupon-mad wrote: »

...and report them to the FSA about breach of debt collection rules, too.

I noticed on a BW Legal letter yesterday, that they are registered with the FCA so we should be telling people who get this bombardment of texts, phone calls and emails as well as misleading letters, to complain to the FCA as well.

I agree, the FCA is another complaint area for BWLegal.

BWLegal are behaving just like Wonga in their vindictive methods.

Wonga, the UK’s biggest payday lender, has entered an agreement with the Financial Conduct Authority (FCA) which will see it pay compensation of over £2.6m to around 45,000 customers for unfair and misleading debt collection practices.
https://www.fca.org.uk/news/press-releases/wonga-pay-redress-unfair-debt-collection-practices

YES, the FCA must now be involved

Wonga also practiced the phone harassment, just the same as BWLegal

FedUpofBWLegal

@beamerguy - reported! And I am looking up the FCA reporting page this morning @coupon-mad. I have received two letters from BW Legal this week acknowledging my cease and desist letter and saying they have put the two cases (this is about 2 PCNs dating back to June on 2 consecutive dates) on hold 'whilst they query this matter with their client'. Britannia as we know from above has responded to my SAR stating they have 30 days so I presume it will be on hold until then.

The situation gets more complicated now because THE DAY AFTER the date on their letter acknowledging my contact preference request, I received an email stating 'Notice of County Court Claim Issued' which coincides with a County Court Claim that arrived earlier this week. I obviously presumed they had pressed ahead with one of the two claims that this original post refers to, but this is a NEW claim for which I have not received any communications and which dates to a day that the driver of my car parked in the same car park in September!

So now we have:
A. - 2 PCN claims with Britannia, through BWLegal, dating from June, currently on hold whilst I await the outcome of my SAR and acknowledged by BWLegal. (the SAR included a request to give me all and any other PCNs they intend to claim for)
B. - 1 brand new County Court Claim out of the blue for the same car park, dating from September, for which I have received no previous communication at all apart from an email (despite cease and desist request) a day after receiving the claim called Notice of County Court Claim issued and today - a letter dating back to earlier this week with roughly the same content.

With regards to A. I am going to hold apart from complaining to the FCA. Nothing to do there until the actual SAR info and court claim arrives.
With regards to B. I will now obviously need to do and AoS so am registering for an MCOL and will then revert to this thread with my reply.

KeithP

What is the Issue Date on your Claim Form?

FedUpofBWLegal

22nd January.

KeithP

FedUpofBWLegal wrote: »

22nd January.

With a Claim Issue Date of 22nd January, you have until Monday 11th February to do the Acknowledgement of Service, but there is nothing to be gained by delaying it. To do the AoS, follow the guidance offered in a Dropbox link from post #2 of the NEWBIES FAQ sticky thread.

Having done the Acknowledgement of Service, you then have until 4pm on Monday 25th February 2019 to file your Defence.

That's a whole month away. Loads of time to produce a perfect Defence, but don't leave it to the very last minute.


When you are happy with the content, your Defence should be filed via email as suggested here:

Print your Defence.
1. Sign it and date it.
   
2. Scan the signed document back in and save it as a pdf.
   
3. Send that pdf as an email attachment to CCBCAQ@Justice.gov.uk
   
4. Just put the claim number and the word Defence in the email title, and in the body of the email something like 'Please find my Defence attached'.
   
5. Log into MCOL after a few days to see if the Claim is marked "defended". If not chase the CCBC until it is.
   
6. Do not be surprised to receive a copy of the Claimant's Directions Questionnaire, they are just trying to put you under pressure.
   
7. Wait for your DQ from the CCBC, or download one from the internet, and then re-read post #2 of the NEWBIES FAQ sticky thread to find out exactly what to do with it.