Attempted unsuccessfully to buy a ticket, left car park, received PCN

Nathan1958

Apologies if this covered elsewhere - I can't find a similar case. I can obviously find lots of cases that might be extrapolated from, but would value some basic guidance before I construct my POPLA appeal.
Briefly, I attempted to park in a supermarket car park in London. The signs said something along the lines of 10 minutes allowed after which a charge would be made. I tried the ticket machine - only took coins & I didn't have any. I then tried 3 times to pay by phone, each one unsuccessful. Each call takes a few minutes, not sure exactly how many, but by the 3rd one I realised that I might be getting near the 10 minute limit and left to find alternative parking.

I subsequently received a PCN from CEL stating that the car was 'parked' for around 12.5 minutes, so. 2.5 minutes over their allowed period.

I've done the standard template appeal from the forum and been referred to POPLA.

Should I do the appeal on the grounds of:
• insufficient grace period
• no evidence of landowner authority
• Something else?

Thanks & best wishes

Le_Kirk

Nathan1958 wrote: »

• Something else?

You could try frustration of contract as THEIR payment system wasn't working.

The_Deep

No contract would win in court if they were daft enough to go there, but as they are trying to scam you, get your MP involved and complain to your local Trading Standards Department.

The whole industry is a scam, relying on threats of court, and the public's ignorance of the Law, A bill is currently before parliament which will regulate the scammers, many of whom are ex-clampers.

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 Second Reading in the Lords this month, and, with a fair wind, will l become Law later this year..

All five readings are available to watch on the internet, (some 7-8 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.

Coupon-mad

I subsequently received a PCN from CEL stating that the car was 'parked' for around 12.5 minutes, so. 2.5 minutes over their allowed period.

I've done the standard template appeal from the forum and been referred to POPLA.

Should I do the appeal on the grounds of:
• insufficient grace period
• no evidence of landowner authority
• Something else?

Obviously all of them plus 'no keeper liability', like all CEL cases.

Nathan1958

Thanks to all of you, this a very useful forum for helping to constructively deal with the frustration & anger that these scammers create. Does anyone know of any relevant examples of frustration of contract that I could use? When I've constructed my POPLA appeal I'll post the daft here for invaluable comment & criticism.

Nathan1958

Draft! (although it is all daft!).

Nathan1958

OK, I have now constructed a draft appeal to POPLA, although in truth, it is very heavily borrowed from an appeal by another forum member with a very similar case (gjs1701 on 27-08018). That case was very similar to mine.

I'd be very grateful for any constructive criticism (but am hoping that I'm simply advised that it's good to go).

POPLA Verification Code:
Vehicle Registration:

I, the registered keeper of the above vehicle, received a letter as a Parking Charge Notice dated xx 2019. I submitted my appeal which was denied in a letter dated xx 2019. I contend that I, the keeper, wish to contend it on the following grounds:

1. Frustration of Contract
2. The Operator has not shown that the individual it is pursuing is liable for the charge
3. Grace Periods do not comply with the BPA Code of Conduct.
4. Vehicle images on the PCN do not comply with the BPA Code of Conduct
5. No evidence to show the full period of parking
6. No Evidence of Landowner compliance

1. Frustration of Contract.

I consider that Civil Enforcement Ltd failed to take payment and so the doctrine of Frustration of Contract applies. In the absence of sufficient coinage to pay for parking, a call was made to the claimant’s payment line. This, and 2 subsequent calls were unsuccessful, as the automated process simply did not work when bank details were attempted to be entered. Because the driver could not make payment, the driver could not enter into a contract with the claimant any charges arising from breach of contract cannot 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.

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.

In this case, no other party apart from an evidenced driver can be told to pay.
I am the keeper 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 and regardless of whether a purported 'NTK' was served or not, because the fact remains that I am only appealing as 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 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 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 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.'

3. Grace Periods do not comply with the BPA Code of Conduct.

After reading a sign in the car park, attempting to pay via the payment machine (which only accepted coins and the driver did not have sufficient) and 3 unsuccessful attempts to pay by phone, the driver left the car park to find alternative parking. According to the PCN received from Civil Enforcement Limited, this whole process took 11 minutes and 42 seconds.


The BPA’s Code of Practice states (13) that there are two grace periods: one at the end (of a minimum of 10 minutes) and one at the start.

As the total period referred to in the PCN is 11 minutes and 42 seconds, the PCN clearly does not allow for these grace periods.

BPA’s Code of Practice (13.1) states that:

“Your approach to parking management must allow a driver who enters
your car park but decides not to park, to leave the car park within a reasonable period without having their vehicle issued with a parking charge notice.”

BPA’s Code of Practice (13.2) states that:
“You should allow the driver a reasonable ‘grace period’ in which to decide
if they are going to stay or go. If the driver is on your land without
permission you should still allow them a grace period to read your signs
and leave before you take enforcement action.”

BPA’s Code of Practice (13.4) states that:
“You should allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.
If the location is one where parking is normally permitted, the Grace Period at the end of the parking period should be a minimum of 10 minutes.”

BPA’s Code of Practice (18.5) states that:
“If a driver is parking with your permission, they must have the chance to
read the terms and conditions before they enter into the contract with you.
If, having had that opportunity, they decide not to park but choose to leave the car park, you must provide them with a reasonable grace period to
leave, as they will not be bound by your parking contract.”

The BPA Code of Practice (13.4) clearly states that the Grace Period to leave the car park should be a minimum of 10 minutes. Whilst 13.4 does not apply in this case (it should be made clear - a contract was never entered in to), it is reasonable to suggest that the minimum of 10 minutes grace period stipulated in 13.4 is also a “reasonable grace period” to apply to 13.1 and 13.2 of the BPA’s Code of Practice.

Kelvin Reynolds, Head of Public Affairs and Policy at the British Parking
Association (BPA):

“The BPA’s guidance specifically says that there must be sufficient time for
the motorist to park their car, observe the signs, decide whether they want
to comply with the operator’s conditions and either drive away or pay for a ticket.”

“No time limit is specified. This is because it might take one person five minutes, but another person 10 minutes depending on various factors, not limited to disability.”

Recently (late November 2017) there was a not dissimilar POPLA Appeal (versus ParkingEye – Tower Road, Newquay) which was successful on the grounds that the assessor believed 11 minutes was a “reasonable grace period” and that “by seeking alternate parking arrangements, the appellant has demonstrated that he did not accept the conditions of the parking contract.”

4. Vehicle Images on the PCN do not comply with BPA’s Code of Practice.

The BPA’s Code of Practice (31.1) states:
“You may use photographs as evidence that a vehicle was parked in an unauthorised way. The photographs must refer to and confirm the incident which you claim was unauthorised. A date and time stamp should be included on the photograph. All photographs used for evidence should be clear and legible and must not be retouched or digitally altered.”

In this case the photographs do not include a date and time stamp. It does not show the location of the car park where the claimant states the incident occurred.

5. No Evidence to show full period of parking.

Contrary to the mandatory provisions of the BPA Code of Practice, there is no
record to show that the vehicle was parked versus attempting to read the terms and conditions before deciding against parking/entering into a contract. Furthermore, POFA 2012 Schedule 4 paragraph 9 refers at numerous times to the “period of parking”.

Most notably, paragraph 9(2)(a) requires the NTK to:
“specify the vehicle, the relevant land on which it was parked and the period of parking to which the notice relates;”

Civil Enforcement Limited’s NTK shows images of a vehicle entering and leaving the car park which are used to calculate its “length of stay”. It is not in the gift of Civil Enforcement Ltd to substitute “entry/exit” or “length of stay” in place of the POFA requirement - “period of parking” - and hold the keeper liable as a result.

By virtue of the nature of an ANPR system recording only entry and exit times, Civil Enforcement Limited are not able to definitively state the period of
parking.

I require Civil Enforcement Ltd to provide evidence to show the vehicle in question was parked on xxx/18 (for the duration claimed) and at the location stated in the NTK.

6. 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 Code of Practice) 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 Code of Practice 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.

LoneStarState

Do you have any proof that the driver went and parked elsewhere (tickets/payment receipts from another car park)? Alternatively does the driver have location data on their phone that supports them being in the vicinity of the machine for the time given by them? Location data from either phones, car insurance telemetry or a GPS enabled dashcam can also help by giving the more true and accurate time the driver was actually parked and attempting to pay versus driving on the land to locate the space, and also driving out of the car park after failed payment (weakening their alleged overstay further).

You've also got a strong case if there is proof of the failed payments on the driver's phone through messages and/or screenshots etc. Alternatively if the driver doesn't.......the payment provider may keep a record of attempts that failed. Time is a little tight but it would be good to contact them anyways if for some inexplicable reason your POPLA appeal is refused to find out if they retain that data (I'm assuming they do).

I haven't fully read the grounds but your first two sentences below POPLA verification and vehicle registration contain split infinitives ("I, as the registered keeper, received....."). You've also put that you "contend as the keeper, to contend.......". I'd recommend that entire bit simply states something along the lines of:

"I received as registered keeper a parking charge notice dated xx/xx/2019 and received a rejection of my initial appeal to the operator on xx/xx/2019. The following are my grounds for why the parking charge notice was incorrectly issued and why this appeal should be allowed." or words to that effect. No need to be too fancy. It's not like POPLA is a fancy outfit anyways.

Nathan1958

Brilliant, thank you. I'll use your rewrite of that first para . With regard to evidence, I'll see what I can find, on theory I should have phone location data - but god knows how you get it (I guess that's what google is for!). I paid by card in the alternative location and my bank statement will show the charge, but not the time - I guess I could contact the bank and ask them for the time of that payment. The bank wouldn't be any help with the payment attempts as I couldn't get my account details into the system properly

DoaM

The keeper may need to be careful whose phone location information is presented.

Nathan1958

As far as I can tell with my newfound (and highly shaky) knowledge, my phone hasn't recorded any location information at all! So that looks like a non starter anyway