First Parking Lpp

teeanem

POPLA sent me a postal appeal form for me to fill in and return by post.
I will persevere with the Uni on Tuesday

Coupon-mad

Then show us your POPLA draft that evening if no joy!

An appeal based on all the zillions of others, using templates from the NEWBIES thread.

teeanem

Thx. in the meantime, I was just trying to prepare the appeal to POPLA, to send with their form.

teeanem

As the registered keeper of the vehicle, registration number xxxx xxx at the time of the incident, I wish to appeal against the parking charge issued by F1rst Parking LLP.

My appeal is based on the following grounds.

1. Unclear and non-compliant signage, forming no contract with drivers.
2. Contract with landowner
3.The operator has not shown that the individual who it is pursuing is in fact liable for the charge.

To expand on these points:
1. Unclear and non-compliant signage, forming no contract with drivers.

Due to their position and the barely legible size of the small print, the signs in this car park are very hard to read. I contend that the signs and any core parking terms that F1rst Parking LLP are relying upon were unclear, and they were not detailed enough.
The signs state ‘Authorised Permit Holders’ & ‘Restricted Authorised Parking only’. There is no detail on the sign as to what type of permit is required to park in the area concerned.
The vehicle was displaying a parking permit, which was in date. There is no detail on the sign as to what type of permit is required to park in the area concerned.
The signs are too small for the driver to discern when driving in and that the signs around the car park also fail to comply with the BPA Code of Practice. As such, the signs were not so prominent that they 'must' have been seen by the driver and therefore I contend the elements of a contract were conspicuous by their absence.
F1rst Parking LPP declared in the appeal refusal email ‘As an orange zone permit holder you were issued with guidance that clearly states you must only park in identified orange zone areas and the onus is upon you to ensure that you do not breach that guidance.
This is not the case. No guidance was provided by the issuer, nor was any contract or agreement signed. I believe the onus is on the F1rst Parking LLP to prove any breach of guidance, and by whom. However, guidance is not a contract, by its definition, guidance is help and advice about something.

2. Contract with landowner
F1rst Parking LLP do not own nor have any interest or assignment of title of the land in question. As such, I do not believe that F1rst Parking LLP has the necessary legal capacity to enter into a contract with a driver of a vehicle parking at the university, or indeed to allege a breach of contract. Accordingly, I require sight of a full copy of the actual contemporaneous, signed and dated site agreement/contract with the landowner (and not just a signed slip of paper saying that it exists). Some parking companies have provided “witness statements” instead of the relevant contract. There is no proof whatsoever that the alleged signatory has ever seen the relevant contract, or, indeed is even an employee of the landowner. Nor would a witness statement show whether there is a payment made from either party within the agreement/contract which would affect any 'loss' calculations. Nor would it show whether the contract includes the necessary authority, required by the BPA CoP, to specifically allow F1rst Parking LLP to pursue these charges in their own name as creditor in the Courts, and to grant them the standing/assignment of title to make contracts with drivers.

In POPLA case reference 1771073004, POPLA ruled that a witness statement was 'not valid evidence'. This witness statement concerned evidence which could have been produced but was not. So if the operator produces a witness statement mentioning the contract, but does not produce the actual un-redacted contract document, then POPLA should be consistent and rule any such statement invalid.

So I require the unredacted contract for all these stated reasons as I contend the Operator's authority is limited to that of a mere parking agent. I believe it is merely a standard business agreement between F1rst Parking LLP and their client, which is true of any such business model. This cannot impact upon, nor create a contract with, any driver, as was found in case no. 3JD00517 ParkingEye v Clarke 19th December 2013 (Transcript linked): (link)

In that case the Judge found that, as the Operator did not own any title in the car park: 'The decision to determine whether it is damages for breach...or a penalty...is really not for these Claimants but...for the owners. We have a rather bizarre situation where the Claimants make no money apparently from those who comply with the terms...and make their profit from those who are in breach of their contract. Well that cannot be right, that is nonsense. So I am satisfied that...the Claimants are the wrong Claimants. They have not satisfied this court that they have suffered any loss...if anything, they make a profit from the breach.'

I challenge this Operator to rebut my assertion that their business model is poor, and is unenforceable. F1rst Parking LLP cannot build their whole business model around profiting from those they consider to be in breach of a sign, on land where they have no locus standi, and then try to paint that profit as a perpetual loss.

3. 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, it must be considered whether they are confident that the driver at the time of the alleged infringement is known, 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, that a charge cannot be enforced. The burden of proof rests with the Operator, because they cannot use the POFA in this case, to show that (as an individual) I have personally not complied with terms in place on the land and show that I am personally liable for their parking charge. They cannot –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 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.''

Based on the above arguments, I therefore respectfully request that my appeal is upheld and the charge dismissed."

teeanem

Please can you take a look at this draft. Is it ok?

Coupon-mad

You can only use this:

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

AFTER a separate point that tells POPLA why you are saying F1rst have not complied with the POFA, e.g. with duff wording in their NTK.

If you were not the driver, say so clearly.

teeanem

Thanks. I'll edit it to clearly show that the keeper was not the driver at the time. Apart from that, does it appear ok.

Coupon-mad

Not until you have this, as already advised:

a separate point that tells POPLA why you are saying F1rst have not complied with the POFA, e.g. with duff wording in their NTK.

teeanem

Ok, I think I've got it und my neck a little! You have checked the NTK, and indicated it was ok. So do I need to remove the reference to the NTK.
Sorry , but I want to get it right.

Coupon-mad

I see at first, you told us this:

the reason for issue was 'restricted area'. The signage throughout the university grounds do not mention anything about zones. They just state 'permit holders only (restricted area). We sent an appeal through to First Parking Lpp, as our daughter was not the driver at the time.

So, despite the NTK, it's not the ONLY requirement of the POFA, so actually I would leave #3 in and state at the start of it that:

The appellant was not the driver, and F1rst are aware of this fact. Due to the lack of 'adequate notice' of the parking charge/so called 'orange zones' and lack of information accompanying the permit, the operator failed to comply with the POFA due to:

- no adequate notice of the parking charge, given the circumstances, and
- no 'relevant obligation' to park in a certain zone, and
- no 'relevant contract' for permit holders about orange zones.

Thus the liability has failed to pass from the driver, who was a different person from the keeper appellant. The above are pre-requisites of the POFA, and keeper liability relies upon a lot more than just serving a NTK.

Put F1rst to 'strict proof' of the 'adequate notice' of the parking charge and zones, and if you can, show a scan of the info that came with the permit and/or a scan of the permit as an image embedded in the appeal to illustrate your point that nothing tells a permit holder about any 'zones' or what they mean.

Did the student get some photos of the lack of clarity of signs, as suggested a month ago? Embed them into the appeal too if they do not show 'orange zones' or what that means.

And your no landowner authority point is a really old version taken from a years-old appeal. Use the version of that point as linked in the NEWBIES thread post #3, instead.