Successful Popla appeal, thanks to all on MSE forum

pedropedrolio

Hi all,

First of all apologies if I'm posting in the wrong place, I don't post often. Secondly I'd like to thank every last contributor to this forum for the guidance that your posts have given me. I managed to cobble together a POPLA appeal which caused the operator (Britannia) to withdraw their appeal within 12 hours of me submitting. Their reason for withdrawing was "Gesture of food will". This is their typo, not mine.

The landowner were very interested in the case details and the local MP contacted the operator directly, so either of these could have put pressure on the operator to stand down, but I'd like to think it was my 'kitchen sink' approach that did it!

I'd like to post the appeal in case parts are useful to anyone. Unfortunately Britannia's devious webform tricked me into revealing who the driver was before I realised that this was an important defence point, so anyone copying any of this should be aware THAT YOU SHOULD NEVER ADMIT WHO THE DRIVER IS. The 'offence' in my case was a mistyped VRN. To be honest I'm almost slightly disappointed it can't go to court now - I did want to hurt them a bit!



THE APPEAL

I am the driver and I contend that I am not liable for the parking charge on the grounds listed below.

If this operator remains silent on any appeal point then it is deemed accepted.

If this operator refuses to respond to any requirements for further information then they are deemed to be withholding information crucial to the case's defence.

1) Frustration of Contract - (ticket machine and issued ticket not fit for purpose).
2) Inadequate and misleading Signage
3) Breach of the BPA Code of Practice Principles
4) PCN Contravenes Consumer rights act 2015
5) No Evidence of landowner Authority
6) No standing to bring charges in their own name.
7) Dissimilar to 'Parking Eye vs Beavis'
8) Inconsistent description of contravention.
9) Failure to comply with CCR 2013
10) No legitimate interest in enforcing a charge
11) Breach of PoFa 2012
12) Robo claim.

It would be useful to set the scene before elaborating. The operator has been responsible for managing Silver Street car park, Glastonbury since the beginning of 2019. Their appointment has been deeply unpopular with both residents and visitors. It is my belief that this is in part due to an aggressive and underhanded pursuit of additional revenue by way of stealth penalties.

Please see link to Facebook page;

The car park signage, ticket machine and camera have been vandalised numerous times in the past 5 months. Please see photo of the ticket machine taken 3 months before the incident in question. Link to source of photo included in appendix.

Please be aware that vandalism has occurred frequently and consistently at this site both before and after the alleged contravention in question took place.

The current state of the car park signage is illegible. Both the ticket machine and the large parking sign have been removed, every additional sign has been daubed with black paint. The camera has also been daubed.

Please see photos detailing the current condition of the car park. (23/5/2019)

It should be noted that under the BPA approved operator scheme code of practise (9.5), an operator "must not use predatory or misleading tactics to lure drivers into incurring parking charges. Such instances will be viewed as a serious and sanction-able instance of non-compliance and may go to the Professional Conduct Panel."

I maintain that the operator are purposefully misleading motorists and suggest they are sanctioned in accordance with the above code.

The alleged contravention involves the purchase of an 'invalid' ticket. It should be noted that the operator have confirmed that they CAN VERY EASILY search their records in order to verify an 'invalid' ticket. They state in correspondence that, "Our machines are designed to process varying registration lengths to allow for customised registrations". This statement, while issued to counter a motorist's defence that the ticket machine should have recognised an invalid entry before issuing a ticket, can be used to demonstrate how flexible their ability to cross reference their data is.

The operator should note;

The current owners of the car park have requested and been supplied with full information from me regarding the incident in question, which they are currently reviewing. They have in particular asked for a copy of the ticket purchased.

The local MP, who has spoken in parliament in support of the 'Parking Code Of Practice Bill', has been informed and is offering me his his full support. He has contacted the operator directly on my behalf.

I have contacted the local council and requested that the operator be referred to Trading Standards.

DVLA (who have a duty of care over the motorist's personal data) have been informed that I believe the operator is not following their respective code of practice.

I have been in contact with the local online newspaper who have only recently run a damning exposure on the operator's trading practices.

The operator should also note that I consider their aggressive actions towards me to amount to harassment. The operator have even issued me a threatening 'final reminder', which I have received well within my appeal time frame. Please see appendix for a copy of this 'notice', which I received 12/06/19.

My partner has a diagnosed chronic balance disorder which is exacerbated by stress and anxiety. The operator should be aware that their aggressive actions towards me are severely effecting his health and as a result are considerably effecting our day to day life.



1) Frustration of contract

Upon entering the car park (12.50, 29/04/19) I located the ticket machine, which appeared to be in very poor condition. The buttons were stiff and difficult to press, the display was barely legible.

I entered my FULL AND CORRECT car registration into the machine in bright sunlight. There was a single button to print the ticket, which was printed as soon as the button was pressed. The ticket was valid for 2 hours.

I did not check the ticket for accuracy as I had assumed that the machine was operating correctly. The ticket was displayed in my car for the duration of my stay. I left the car park (14.18, 29/04/19) well within the allotted time, leaving the operative with over half an hour of 'double dip' time, in which an empty parking space had already been paid for.

The machine had been in my opinion without doubt subjected to vandalism. It had been returned to service, though it's reliability can certainly be called into question. I cannot provide you with an up to date photo as the ticket machine was removed shortly after the incident in question , though one can gauge from the photo included earlier of the ticket machine three months prior to the incident the scale of vandalism which occurred.

Please take note that the vehicle registration displayed on my ticket simply reads "W", the first digit of my registration. Surely, had I not been intending to input my correct registration, I'd have left it blank or pressed any combination of letters. My employment as a professional requires me to be both thorough and diligent, purposefully abbreviating a number plate is simply out of character for me.

The operator would argue that a motorist should contact them directly if there are issues, but the motorist should first be aware of these issues. The fact remains that the display on the machine was very difficult to see and I assumed that it had issued me a valid ticket. It cannot be argued in this busy world that a motorist has not taken 'due care' if they have not minutely scanned their £1.50 parking ticket for errors when they have followed all available steps to ensure they have a valid ticket. In my opinion anyone who upholds a policy of punishing paying motorists for technicalities that are likely to be borne from their own faulty equipment without leniency and without investigation is running a scam. The operator is well aware of the vandalism which has consistently occurred at the site in question, yet they have not addressed the possibility that this may impede motorists ability to effectively operate their equipment and have not made provision. With such high penalties in place when an error occurs, it is hard to justify this stance in any ethical fashion. By failing to offer support or leniency, they are expecting me to have technical knowledge in regards to the functionality of their machines and responsibility for ensuring it is serviceable. I am not a technician and I am not their employee. I should not be treated as such.

Please try to weigh up whether or not I would have purposefully abbreviated my registration to this single digit, or whether it is more likely that a malfunction occurred with the keypad due to the continuous vandalism it had received. Please note the frequency of 'mistyped VPN' complaints on the Facebook page link supplied on page 1.

I have provided you with evidence that black paint has been consistently used to vandalise the ticket machine at this site, I deem it very likely that black paint has entered this machine and effected its functionality.

In their letter outlining why they have upheld their claim against me, the operator have stated that, "It is not feasible to calibrate the ANPR system to recognise whether the value entered is valid or not".

I know first hand that this technology has been readily available and implemented for a decade. The car park was virtually empty. An integrated system would not only have easily recognised and auto-filled my vehicle registration, but it would have made clear any errors occurring whist entering and would not have issued me with an 'invalid' ticket.

It seems confusing how the operator can be so inflexible in implementing their policy on penalties yet deem it satisfactory to marry new and accurate technology such as ANPR with antiquated ticket machines which they admit cannot be integrated. This appears to be inviting error to occur. I would like to know how the operator has addressed this issue and how they plan to differentiate between human error and mechanical error, or whether they have any interest in distinguishing it at all. I would like to know how diligent their repair practices and testing for functionality are in the face of vandalism.

I would like to ask the question that if, as they would claim, the operator's model treats motorists in a fair, indiscriminate, respectful and tolerant manner, then why is their hardware - the symbol of their business mantra - subjected to continuous and systematic defacement? This type of (albeit misguided) demonstration suggests that motorists feel substantially wronged and isolated without any other viable alternatives for them other than extremism. Vigilantism occurs when people feel there are no systems in place to protect them. Further to this it suggests that at Silver Street car park in particular something is occurring that is fuelling vigilantism further. I would suggest that above the usual 'background' public displeasure with this company, it could be that the ticket machine was intermittently malfunctioning, resulting in abnormally high amounts of fines being issued to innocent parties.

It is with this reasoning that I suggest that the operator are substantially out of order in upholding this parking fine and fall well short in their duty to ensure that a 'valid ticket' is issued to the customer.

For the site situated Silver Street, Glastonbury;

I require the operator to provide a list of the registration numbers that do not have corresponding ANPR entry values/photos for a period of 7 days either side of this alleged contravention.

I require the operator to provide a list of the ANPR entries/photos which do not have corresponding or 'valid' tickets for a period of 7 days either side of this alleged contravention.

I require the operator to provide full unredacted maintenance AND fault logs for the machine in question for a period of 7 days either side of the date of this alleged contravention.

I require the operator to provide information regarding the current location and functionality of the ticket machine.

I require the operator to provide evidence that a ticket for a vehicle, registration "W" was purchased from their ticket machine on the day and time of the alleged contravention.. This is a simple courtesy which (as can be expected) has not been offered.

I require the operator to provide the transaction log for ticket No. XXXXXXXX. This should include information referencing the date of purchase, time of purchase, amount paid and the VRN entered.

I require the operator to explain why, considering the high number of 'invalid VRN' instances recorded at this site, they have not entertained the notion that their machine could be at fault.

I require the operator to provide a summary highlighting the steps they take to ensure all machines are operational and which, if any, mechanisms are in place to differentiate between human and mechanical error.

I require the operator to provide a list of all reported vandalism attempts/events in the months proceeding and succeeding the incident. This should detail which hardware was vandalised, what attempts were made to repair the damage and in what time frame.

I require the operator to provide evidence how, other than reports from concerned motorists, they inspect their sites (in particular frequently vandalised sites) to ensure that motorists are not frustrated in complying with their strict terms and conditions. Also how frequently these inspections occur.

2) Inadequate and Misleading Signage

The signs in this car park are not prominent, clear or legible from all parking spaces. The sign next to the ticket machine (pictured) fails to define the terms and conditions.

In car parks where a ticket is purchased from a machine, only the terms and conditions on/near the machine itself are binding on the motorist. The signs here make the offer to the motorist which he chooses to accept by buying a ticket. A contradictory or different sign (e.g. one that adds additional conditions) elsewhere in the car park would make no difference to the contract the motorist has made.

The main sign reads "£100 For Not Displaying a valid ticket", which is an ambiguous and misleading term. This sign has since been removed from the car park due to vandalism though I have supplied a photo of the sign that proceeded it, which is identical.



The definition of an invalid ticket in this case as understood by the operator is a ticket which covers the duration of the stay AND displays the exact VRN. The operator make a large assumption when they assume that the motorist is aware of this and holds the same definitions. Nowhere on the available signage is the operator's definition of a 'valid ticket' explained.

The operator states in their appeal rejection that, "The signage in the car park states that you must “Enter the FULL and correct vehicle registration into the payment machine when paying the tariff”. I contest that the signage DID NOT mention this requirement.

I purchased a ticket by going through the usual motions, which I believed would end in me receiving a valid ticket. I took the issued ticket at face value. Had I been informed by signage that the penalty for (human or mechanical) error was so disproportionate, equating to the same penalty as parking without purchasing a ticket at all, I would not have chosen to park at Silver Street car park at all. I argue that because of this there is NO VALID CONTRACT at all and that the penalty as a result cannot be upheld.

Ticket related charges in car parks are conventionally only issued when a customer does not purchase and display a ticket. Charges brought by incorrectly logging your VRN are an entirely new phenomenon in Somerset. A motorist cannot be expected to have their 'city head' on whilst visiting a quiet country town in a rural county. The paying public cannot, as yet, be expected to automatically recognise this as a potential reason to be fined. Simply stating that, "£100 penalty for not displaying a valid ticket", is DELIBERATELY MISLEADING in this case, as it does not clearly define the criteria for obtaining a 'valid ticket'. The Penalty notice on the sign is barely legible, the definition of 'valid ticket' is not present. Convention would define a 'valid ticket' as a ticket purchased from the ticket machine which covers the duration of the stay. Any other penalties are not conventional. Hidden or unconventional terms should be clearly displayed. In this case, at the detriment to the motorist, they were not. One can only speculate the agenda for maintaining this 'hidden' penalty.

It has been widely discussed on media and in government that 'Mistyped VRN' charges are increasing exponentially among unscrupulous operators. If these questionable practices are to continue, a fair system would be to employ a 'strike' system, where 'offenders' should be warned by the operator that their purchased ticket must contain a valid VRN and that further contraventions would be penalised. .

The operator's signage at Silver Street state that their ANPR system is used to 'prevent crime'. It does not mention anything about cross referencing VRN's to confirm validity of tickets.

I require the operator to provide a summary highlighting the steps they take to ensure that motorists are clearly informed of the operator's definition of a 'Valid Ticket'.

I require the operator to show where on the main sign for Silver Street car park (now removed), the requirement for a motorist to enter their VRN is listed.

I require the operator to show where on the main sign for Silver Street car park (now removed), the requirement for a motorist to enter their FULL VRN is listed.

I require the operator to show where on the main sign for Silver Street car park (now removed), the requirement for a motorist to enter their CORRECT VRN is listed.

I require the operator to show where on the signage for Silver Street car park, the fact that the operator uses ANPR to check the validity of the issued tickets is shown.

3) Breach of the BPA Code of Practice Principles

Under section 21 of the CoP, AOS members are only allowed to use ANPR if they:
(a) Use it to enforce parking in a reasonable, consistent and transparent manner.
(b) Have clear signs which tell drivers that the operator is using this technology and what the data captured by ANPR cameras will be used for.

Please study on page 7 the photo of the only clear sign I was able to locate on site. Nowhere on this sign does it mention what data captured by ANPR cameras will be used for. Nowhere does it mention that failure to correctly input your VRN will result in a fine. It just used the ambiguous term 'valid ticket'.

I require the operator provides evidence that they have clearly demonstrated to the motorist that data captured by ANPR will be used to issue a penalty should their VRN not be recognised by the system.

I require the operator to provide evidence that on the day in question there was adequate non-vandalized signage within the car park.

The operator have afforded me a single chance at contesting the 'violation', after which they have chosen not to acknowledge my explanation and to close the appeal. They do not even acknowledge that the ticket either appears on their system or amply covers the time I was parked in the car park. They have not handled this appeal on a individual basis and their reply was generic and scripted. How is this 'reasonable' behaviour? I would argue that the operator's online appeal section, in stark contrast to the rest of their website, is specifically designed to limit the motorist in terms of the quantity of text they can submit and the ease at which they can navigate. This is the only chance to raise an objection, as once you submit your information the operator's reply to this states, "You have now reached the end of our internal appeals procedure". A single webform is all you get to attest the penalty.

Where is the option to review your appeal after submission? Where is the option to add supplemental evidence? This implies the operator have no interest in resolving issues in a reasonable manner and would like to get straight on with the task of threatening me with legal action.

I require that the operator prove that their policy of only allowing customers a single webform submission to argue their case with no option to add additional comments is fair practice.

A BPA AOS operator is required to have transparent, fair and professional procedures including manual checks to identify such minor infringements.

I require that the operator provides a copy of their policy and proof that those checks were made in this instance.

Correctly entering your VRN was not a condition of parking at Silver Street car park prior to Britannia's appointment in 2019, I contest that they have provided no instruction to the motorist that this condition is now in place.

BoP 2018 states;

"18.10 Where there is a change in the terms and conditions that materially affects the motorist then you must make these terms and conditions clear on your signage. Where such changes impose liability where none previously existed then you must consider a transition to allow regular visitors to the site to adjust and familiarise themselves with the changes. Best practice would be the installation of additional/temporary signage at the entrance and throughout the site making it clear that new terms and conditions apply. This will ensure such that regular visitors who may be familiar with the previous terms become aware of the new ones."

I require that the operator demonstrates that they have made provision for regular visitors to adjust to the new provisions which they have imposed.

I require that the operator provides evidence that they have signed up to the Surveillance Camera Commissioner's Code of Practice and have adopted the Guiding Principles which are detailed in Appendix F of the Code.

Part 2 to follow........

pedropedrolio

4) PCN Contravenes Consumer rights act 2015

The ticket machines offered no refund for an invalid ticket. The operator have no system in place to issue refunds for incorrectly dispensed tickets. Had I noticed that the ticket was invalid, there was no process for having my money returned on site and no mechanism to have my situation reviewed by the company outside of defending a penalty charge (or registering my business interest in their services). No helpline, no complaints line.

Should I have continued to purchase further tickets until I received a valid one? Under UK law I'm entitled to either a refund or a replacement for an inferior product, the operator offered neither. This ticket was bought and paid for in good faith. According to the Consumer Rights Act 2015 any goods purchased should be 'Fit for Purpose'. Consumer law always applies and NO contract falls outside of its protection.

I require that the operator explain why, if their ticket is indeed invalid, they have not offered me either a full refund of a replacement ticket.

My assertion is that the ticket that the operator issued me - through no fault of my own - by the operator's insistence is not 'fit for purpose' and I should be entitled to all the protection that the Consumer Rights Act 2015 affords me. Supply to me of an inferior product by the operator which does not fit the operator's 'valid' criteria has resulted in me being fined by the operator for not having been supplied by the operator with a product that meets the operator's 'valid' criteria. It smacks of contradiction. They have taken no steps to investigate what happened,
or to make amends for their 'not fit for purpose' product. They have been obtuse and threatening from the onset.

The good faith requirement embodies ‘an overall evaluation of the different interests involved’ and includes the following general principles:

Fair and open dealing – this relates to how contracts are drafted and presented, as well as the way in which they are negotiated and carried out. It requires, in particular, that contracts be drawn up in a way that respects consumers’ legitimate interests.

Openness – this requires that terms and notices should be ‘expressed fully, clearly and legibly, containing no concealed pitfalls or traps. Appropriate prominence should be given to terms which might operate disadvantageously’ to the consumer.

Fair dealing – this requires that, in drafting and using contract terms, traders ‘should not, whether deliberately or unconsciously, take advantage’ of consumers' circumstances to their detriment.

A concealed 'term' which results in a several thousand percent increase in the original payable fee can be deemed disadvantageous to the customer. By not explaining how this term is triggered, the operator are taking advantage of the customer's circumstances.

I contend that the operator should be held to account for the inferior product which they have issued me. They should offer me both a refund and an apology for their complete failure to provide any kind of reasonable service.

5) 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 a non-redacted copy of the contract with the landowner to evidence the definition of the services provided.

This includes a list of grace periods, charges and all restrictions authorised where a parking charge can arise, as I do not believe they are authorised by the landowner to charge a paying customer for a suspected VRN error.

6) No standing to bring charges in their own name.

The contract and any 'retailer agreement/Manual' setting out details including restrictions, charges and exemptions - such as 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 but in this case I suggest it is unlikely to sufficiently evidence the definition of the services provided and any cancellation rights offered.

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.

I contend that the operator has no authority to bring charges in their own name and as such cannot legally issue me this charge.

I require that the operator provide proof that they are entitled to issue contracts in their own name

I require that the operator provide proof that the are entitled to enforce a charge in court in their own name as they are very eager to threaten me with this action.


7) Dissimilar to 'Parking Eye vs Beavis'

The operator may well site the 'Private Eye Ltd vs Beavis' case, which many parking firms employ as a blanket case to justify their actions and equally many motorists wrongly site to defend their cases . It is my understanding that this case is wholly dissimilar to 'Private Eye vs Beavis'. There is absolutely no loss.

In 'Parking Eye Limited v Heggie Judge Obhi', it held that as the claimant COULD NOT DEMONSTRATE they had a direct loss from the breach of contract due to the incorrect entering of registration details. In fact in this case the registration was completely incorrect in that it was for the defendant’s other vehicle.

This can be contrasted to the case of 'Parking Eye Limited v Beavis' where a loss could be proven where there was an overstay. Where a charge of £85 was levied on Mr Beavis due to him overstaying in a car park owned by Parking Eye Limited. In that case Mr Beavis argued that the parking charge was far too high to be a genuine pre-estimate of the loss that Parking Eye Limited suffered and therefore was a penalty clause rather than a liquidated damages clause.

The general rule is that a liquidated clause is enforceable as there is an agreement between the parties that a specified sum is to be payable on breach of contract provided that it is a genuine pre-estimate of loss. If this is not the case then the clause constitutes a penalty and it will only be enforceable to the extent of the actual loss suffered.

The Court found that whilst the £85 may not be a genuine pre-estimate of loss, Parking Eye Limited had a legitimate interest in enforcing the fine where motorists overstay to properly managing the car park and deterring motorists from occupying spaces beyond the time paid for to ensure further income by allowing other motorists to occupy the space. The Court concluded that the £85.00 charge was not out of proportion to the legitimate interest and therefore the clause was not a penalty clause.

Therefore whilst the parking companies can demonstrate a loss where there is an overstay, in that the space cannot be used by anyone else, there is no loss where registration details have been entered wrongly but the requisite fee has been paid.

I require that the operator demonstrate a genuine pre-estimate of their loss.

I require that the operator demonstrate how this is not an unenforceable penalty

The 'Parking Eye v Beavis' case exposes this charge is unreasonable, with no overriding 'legitimate interest' to save it from offending against the penalty rule.

The Supreme Court made it perfectly clear that the judgement was not a silver bullet which justifies all parking charges. Indeed, cases which are not about a free parking licence but involve a simple financial transaction (e.g. paying a tariff and putting in a VRN) were said at the Court of Appeal stage to be likely to fall foul of Lord Dunedin's four tests for an unenforceable penalty.

The Operator cannot argue that a 'legitimate interest' exists to punish customers for inputting a wrong VRN on a single occasion, yet using the car park for exactly the purpose intended and for no more than the paid-for time. The Beavis case is not comparable and does not supersede any considerations of the specific facts in this case. It is certainly likely that the courts would say it is undoubtedly 'unconscionable' to penalise a customer who has proved they paid and displayed, at the same level as (for example) a trespasser, who parked all day across two bays without paying any tariff.

8) Inconsistent description of contravention.

The signage at Silver Street car park states the parking charge notice would be issued if a customer should "Fail to purchase a valid ticket, voucher or permit". The contravention listed on the parking charge notice reads "Failed to make a valid payment". The operator's appeal rejection letter states that they have upheld their 'charge' because a, “valid ticket was not purchased”.

These are two entirely different contraventions, which the operator appears to be flipping between at will. The legal definition of a valid payment is a payment in full as to compel the recipient to take it. I paid in full, the payment was deemed valid by the operator's means for accepting payment on site, which issued me with a receipt for the payment (which included VAT number,time and amount of payment). Failure to log VRN details would have been a technicality the operator could have charged me with (had they informed me that this was essential, or even necessary), but I cannot be accused of failing to pay. The operator have the digital audit trail for this payment which they can cross reference with their accounts. The operator never indicated that they had not accepted the payment. The payment will appear as part of the operator's end of year financial records, the operator has ALREADY accepted a valid payment. Not recognising the payment's validity is tantamount to theft. In no other industry can the seller argue that the customer has not paid when shown the receipt for payment. It is simply ridiculous.

There was no option to amend the logged VRN details after payment, so no option at all for me to 'validate' my payment, as the operator sees it.

I require that the operator explain what they will do with this and thousands of other national payments they deem 'invalid'.

I require that the operator justifies withholding return to me of the payment I made if it (as they state) was not valid.


9) Failure to comply with CCR 2013

The signage at this location fails to create any contractual liability due to the failure to comply with the provisions of the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. The purported contract created by the signage is a ‘distance contract’ as defined in section 5 of the Regulations, and is therefore subject to the mandatory requirements set out in section 13, relating to the statutory information which must be provided by the trader.

The Regulations state, at 13(1)(a), that the information listed in Schedule 2 must be given or made available to the consumer in a clear and comprehensible manner. The Claimant’s notice fails to comply with various clauses of Schedule 2, as follows:

(o)where under regulation 28, 36 or 37 there is no right to cancel or the right to cancel may be lost, the information that the consumer will not benefit from a right to cancel, or the circumstances under which the consumer loses the right to cancel;

(q)where applicable, the existence and the conditions of after-sale customer assistance, after-sales services and commercial guarantees;

(v)where applicable, the functionality, including applicable technical protection measures, of digital content;

(x)where applicable, the possibility of having recourse to an out-of-court complaint and redress mechanism, to which the trader is subject, and the methods for having access to it.

Due to these significant breaches of the Regulations, it is submitted that I cannot be held contractually liable, according to the wording of the Regulations at 13 (1) “Before the consumer is bound by a distance contract, the trader must …”.

The operator would argue that the site is fully automated, yet I contest that it is not. In their letter rejecting the appeal, the operator state that, "It is not feasible to calibrate the ANPR system to recognise whether the value entered in their ticket machines is valid or not". This technology does exist and is widely implemented. A 'fully automated' site would feature a ANPR system and ticket machine which DO communicate and can recognise when an entered number plate does not match any of those recorded by the ANPR on the day. A fully automated system would also recognise contraventions, issuing penalties on the day with provision to pay these penalties on the day (self ticketing services). A fully automated system would not allow 'invalid' tickets to be issued from its machines in the first place, as this completely rides against the principle of automation itself. The machines should only issue a ticket that has been cross referenced with the record of which cars have entered the car park to confirm validity. In the case of Silver Street, data has to be physically taken away and cross referenced at a later date to identify discrepancies. I contend that this site is NOT automated.


10) No legitimate interest in enforcing a charge.

One of the key points from the Beavis case was that the charge was necessary to deter overstaying; if they did not issue penalties then the car park would be unfairly used. The flip side of this is that if there were no legitimate interest, then the charge would be an unenforceable penalty.

I contest that there is no legitimate interest and that this is an unenforceable penalty.

11) Breach of PoFa 2012

Pofa 2012 clearly states that a parking charge notice must;

(e)state that the creditor does not know both the name of the driver and a current address for service for the driver and invite the keeper—
(i)to pay the unpaid parking charges; or
(ii)if the keeper was not the driver of the vehicle, to notify the creditor of the name of the driver and a current address for service for the driver and to pass the notice on to the driver;
(f)warn the keeper that if, after the period of 28 days beginning with the day after that on which the notice is given—
(i)the amount of the unpaid parking charges specified under paragraph (d) has not been paid in full, and
(ii)the creditor does not know both the name of the driver and a current address for service for the driver,the creditor will (if all the applicable conditions under this Schedule are met) have the right to recover from the keeper so much of that amount as remains unpaid;

Although the keeper subsequently identified themselves as the driver, the initial parking charge notice is invalid for the reasons listed above.

12) Robo claim

The operator's rejection letter referred to several points that were not mentioned in the submitted appeal. It is my belief that a 'one size fits all' automated rejection response was issued designed to cover all 'incorrect VRN' appeals. This practice is cynical, and suggests that the operator is playing a 'percentage game', where a small percentage of the motorists penalised will pay a large amount and make it a commercially viable practice.

The operator has issued me a 'final reminder' notice, once again threatening legal action and escalated 'charges'. This notice has been issued well within my appeal time frame. This adds further fuel to my opinion that the operator does not treat these cases on an individual basis.


Appendix

1) The link below describes how a car park in Devon in 2016 was subject to the same conditions as Silver Street, Glastonbury.


In this case the Council had to report the company for operating in an IDENTICAL way to Britannia Parking.

It reads;

"One (driver) was fined after wrongly inputting a vehicle registration number into the ticket machine, another after the machine failed to print the final digit of their registration number.

A spokesman for Devon and Somerset Trading Standards, who negotiated the agreement with Premier Parking Solutions, told the Totnes Times: “As part of the agreement, genuine customer errors will result in an offer from PPS to pay a much lower administration charge or if they have already paid the penalty charge notice, reimbursement minus an administration charge.

“This reflects the company’s view that there had been a clear breach of their terms and conditions of parking and will only apply to those complainants who had logged previously their complaint with trading standards.”

Please note that only the customers who lodged complaints with trading standards were reimbursed. This is representative of the industry as a whole, there is no quarter given in regards to fairness or responsibility to the paying customer.


2) An analogy to the operator's behaviour would be thus ; An individual pays £1 for a locker at a swimming pool (In order to tie more closely with the 'infringement' being discussed, the locker would also have had to have been kicked a few times and doused with paint). When inserting their money the locker asks them for their membership number, which they enter.
When they later return to their locker they have a £100 fine because their membership number was entered incorrectly. They appeal to the management, pointing out the fact that in order to use the locker you still have to insert the correct money, they then subsequently supply the management with the correct membership number.

The company responds by repeating that they could not recognise the supplied membership number, ignore the fact that they have just given them the correct membership number, refer to some signage which doesn't exist and repeat that a £100 fine is still due, or legal action would be taken. This obtuse behaviour would not be acceptable in any other industry. A fair response would be update the records and thank the customer for their initial use of their facilities. It would not be to threaten them with court action.


Well there it is. Well done for getting to the bottom. Feel free to move the post if it's in the wrong place. Hope it's useful!

Ta Ta.

beamerguy

A mamouth appeal but it worked so well done:beer:

Britannia caught with their trousers down again.:rotfl:

Clearly the BPA were fast asleep again for allowing yet another scammer to continue

The_Deep

That must have taken up a lot of your time. Now waste theirs, send them an LBC.

https://www.rocketlawyer.co.uk/documents-and-forms/letter-before-action.rlm?msclkid=2af21a1b48a311959f704713a786b6ac&utm_source=bing&utm_medium=cpc&utm_campaign=BSN%20-%20Letter%20before%20action&utm_term=free%20template%20letter%20before%20action%20uk&utm_content=Exact%20-%20Letter%20before%20action

pedropedrolio

What a great idea! I might leave the next offensive for a week or two while we calm down a bit. Subject matters for conversations whilst walking the dog have become a bit predictable of late!

MistyZ

'Gesture of food will'! The minion whose job is was to read & digest was clearly starving.

Congratulations! Nice work!

Coupon-mad

Their reason for withdrawing was "Gesture of food will".
This is their typo, not mine.

Classic incompetence!

Well done.

The current state of the car park signage is illegible.

Both the ticket machine and the large parking sign have been removed, every additional sign has been daubed with black paint.

The camera has also been daubed

I am so happy to hear that. Just saying! And not encouraging criminal damage anywhere, but hey, the good people of Glastonbury appear not to like PPCs...

waamo

You should charge them £100 for their typo.

Ralph-y

well done ....:j
this will be perfect for any one else caught out at



Silver Street car park, Glastonbury in the future


Ralph:cool:

Woppyman72

Write back asking when you will receive the promised food

pedropedrolio

Woppyman72 wrote: »

Write back asking when you will receive the promised food

I'd be happy to accept 60% of the food if they send it within 14 days.

The remaining food they can feed to that poor guy who read my appeal!