POPLA appeal stage***What chances??

Redx

I would , on the grounds of frustration of contract because the landowner staff delayed you (due to being absent) from knowing what the rules were about the parking and so mention frustration of contract as well as clause #13 - grace periods (ie:- you could not enter into a contract because the lack of clarity by the landowner and their staff prevented you from knowing what the terms were so you left the premises due to frustration of contract - not knowing the rules and neither did the staff you dealt with)

johntownsend

Redx wrote: »

I would , on the grounds of frustration of contract because the landowner staff delayed you (due to being absent) from knowing what the rules were about the parking and so mention frustration of contract as well as clause #13 - grace periods (ie:- you could not enter into a contract because the lack of clarity by the landowner and their staff prevented you from knowing what the terms were so you left the premises due to frustration of contract - not knowing the rules and neither did the staff you dealt with)

How does this sound as a quick draft ....
4] I rely on the doctrine of Frustration of Contract in my defence. The contract was formed between the Claimant and the driver, in which the Claimant granted the consideration of payment must be made within 15 minutes of arrival, in return for a promise to pay within 15 minutes of arrival on the part of the driver. There was, in this case, a change in circumstances which was not the fault of either party, and which rendered it impossible for the driver to perform the contract.
On arrival at the car park in question the driver eventually found a parking space. The driver then located a ticket machine with cash in hand to pay for parking [the driver is provided with ample petty cash to pay for parking for business purposes] However the ticket machine was out of order and was unable to pay by cash. On returning to the car and checking their mobile phone they had no signal available to phone and pay.
So the driver decided to walk into the Hotel which owns the car park and enquire. Once inside the property the only member of staff available was on the telephone. Eventually when the phone call had finished I was told that they think permits to park could be purchased but they needed ask a senior member of staff who was busy elsewhere within the hotel.
After a few more minutes of frustratingly waiting around the driver decided not to use the car park in question and opted to park elsewhere in the city to make their business meeting on time.
Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.

Coupon-mad

After a few more minutes of frustratingly waiting around the driver decided not to use the car park in question and opted to park elsewhere in the city to make their business meeting on time.

POPLA like it if you can prove this, by showing them the driver paid for another car park.

I wouldn't say the driver 'couldn't get a signal'. I'd change the wording to say the PBP app was not working either despite several attempts to get through (same thing but that doesn't put the blame on the driver's phone).

I don't think you have, but don't say the driver went to the loo or anything else like that.

What about these two points for CEL POPLA appeals (search the forum for those words)

5. Non POFA PCN and the driver has not been identified, and
6. the appellant is the keeper and has not been shown to be the individual liable.

Umkomaas

@OP - you haven’t referenced the latest POPLA decision (daheem24 case) where they state that the CEL signage is not sufficiently clear.

Go back to read the entire statement by POPLA in their assessment and quote from the decisive statements about CEL signage - verbatim. The assessment has the assessor’s name, so quote that too, and so that it stands out from the rest of the signage template (which POPLA will have seen hundreds of times and are likely to gloss over it), embolden (or underline) the new paragraph(s) you use about this.

johntownsend

Coupon-mad wrote: »

What about these two points for CEL POPLA appeals (search the forum for those words)

5. Non POFA PCN and the driver has not been identified, and
6. the appellant is the keeper and has not been shown to be the individual liable.

Here are my 4 points to make
1)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
2]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
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4]Frustration of Contract in my defence

Please comment on my draft first point below does thus answer your 5&6 points?

1)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. 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.''

Coupon-mad

Here are my 4 points to make

You can only use the point you've put at #1, if you first put the point I told you to put before it, about the NTK!

KeithP

I am the appellant throughout (as I am entitled to be),...

Of course you are. You are the one appealing.

Where did you dig up that old template from?
It's not linked from the NEWBIES thread.

johntownsend

Coupon-mad what do you mean?
Ntk was sent within 14 days

Coupon-mad

So the POFA, Sch 4 para 9 is only about the deadline? Look again.

johntownsend

Can I please get some feedback on my POPLA draft .........

POPLA Ref **********
Civil Enforcement Parking Charge Notice no **************
A notice to keeper was issued on ********* and received by me, the registered keeper of ******* for an alleged contravention of ‘payment not made in accordance with terms displayed on signage’’ at **************. I am writing to you as the registered keeper and would be grateful if you would please consider my appeal for the following reasons.

1)The operator has not shown that the individual who it is pursuing is in fact liable for the charge.
2]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
3) No evidence of Landowner Authority - the operator is put to strict proof of full compliance with the BPA Code of Practice
4]Frustration of Contract in my defence
5] No planning permission from the *********r Borough Council for pole-mounted ANPR Cameras and no advertising consent for signage

1)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. 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.''


2] 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:
http://imgur.com/a/AkMCN


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:
http://2.bp.blogspot.com/-eYdphoIIDgE/VpbCpfSTaiI/AAAAAAAAE10/5uFjL528DgU/s640/Parking%2Bsign_001.jpg


Below is parking sign found at ************** (image)

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:
http://www-archive.mozilla.org/newlayout/testcases/css/sec526pt2.htm
As further evidence that this is inadequate notice, Letter Height Visibility is discussed here:
http://www.signazon.com/help-center/sign-letter-height-visibility-chart.aspx
''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:
http://www.ebay.co.uk/gds/Outdoor-Dimensional-Sign-Letter-Best-Viewing-Distance-/10000000175068392/g.html
''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:
http://www.bailii.org/ew/cases/EWCA/Civ/2000/106.html
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.

3) 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 CoP) 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 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

4] I rely on the doctrine of Frustration of Contract in my defence. The contract was formed between the Claimant and the driver, in which the Claimant granted the consideration of payment must be made within 15 minutes of arrival, in return for a promise to pay within 15 minutes of arrival on the part of the driver. There was, in this case, a change in circumstances which was not the fault of either party, and which rendered it impossible for the driver to perform the contract.
On arrival at the car park in question the driver eventually found a parking space. The driver then located a ticket machine with cash in hand to pay for parking [the driver is provided with ample petty cash to pay for parking for business purposes] However the ticket machine was out of order and was unable to pay by cash. On returning to the car the driver was irritated when unable to download and open the the 'phone and pay' app.
So the driver decided to walk into the Hotel which owns the car park and enquire. Once inside the property the only member of staff available was on the telephone. Eventually when the phone call had finished I was told that they think permits to park could be purchased but they needed ask a senior member of staff who was busy elsewhere within the hotel.
After a few more minutes of frustratingly waiting around the driver decided not to use the car park in question, quickly left the location and was forced to park further away from the city center at ******** where free parking is available to make their business meeting on time.
Where a contract is found to be frustrated, each party is discharged from future obligations under the contract and neither party may sue for breach. The allocation of loss is decided by the Law Reform (Frustrated Contracts) Act 1943, but in this case there was no loss to the Claimant at the time the contract was breached, and so they have no valid claim for £100 or any amount at all. The case of Nicholl and Knight v Ashton, Eldridge & Co [1901] 2 KB 126 provides authority for this.

5] No planning permission from the ******** Borough Council for pole-mounted ANPR cameras and no advertising consent for signage
A search in the ********* Borough Council planning database does not show any planning permission for the pole-mounted ANPR cameras for the car park at ************, nor does it show any advertising consent for signage exceeding 0.3 m2.
UK government guidance on advertisement signage requires:
“If a proposed advertisement does not fall into one of the Classes in Schedule 1 or Schedule 3 to the Regulations, consent must be applied for and obtained from the local planning authority (referred to as express consent in the Regulations). Express consent is also required to display an advertisement that does not comply with the specific conditions and limitations on the class that the advertisement would otherwise have consent under. It is criminal offence to display an advertisement without consent.”
This shows that Civil Enforcement Ltd is/has been seeking to enforce Terms & Conditions displayed on illegally erected signage, using equipment (pole-mounted ANPR cameras) for which no planning application had been made.
I request Civil Enforcement Ltd provides evidence that the correct Planning Applications were submitted (and approved) in relation to the pole-mounted ANPR cameras and that Advertising Consent was gained for signage exceeding 0.3 m2, prior to the date to which this appeal relates (11/03/2019).